UNITED STATES  

SECURITIES AND EXCHANGE COMMISSION  

WASHINGTON, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

 

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

 

Date of Report (date of earliest event reported): December 12, 2018

 

CELSIUS HOLDINGS, INC.  

(Exact name of registrant as specified in charter)

 

Nevada

 (State or other jurisdiction of incorporation)

  

000-55663   20-2745790
 (Commission File Number)   (IRS Employer Identification No.)

 

2424 N Federal Highway, Suite 208, Boca Raton, Florida 33431

  (Address of principal executive offices and zip code)

 

(561) 276-2239
(Registrant’s telephone number including area code)

 

 
Former Name or Former Address (If Changed Since Last Report)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of registrant under any of the following provisions: 

 

  Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

  Soliciting material pursuant to Rule 14a-12(b) under the Exchange Act (17 CFR 240.14a-12)

 

  Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

  Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter). Emerging growth company ☐

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

 

 

  

When used in this Current Report on Form 8-K, unless otherwise indicated, the terms “ the Company ,” “ Celsius ,” “ we ,” “ us ” and “ our ” refer to Celsius Holdings, Inc. and its subsidiaries.

 

Item 1.01. Entry into a Material Definitive Agreement.

 

The Company entered into Convertible Loan Agreements (the “ Loan Agreements ”) with its affiliates Charmnew Limited (“ Charmnew ”) and Grieg International Limited (“ Grieg ”) on December 12, 2018, and with its affiliate CD Financial, LLC (“ CD Financial ”) on December 14, 2018, providing for aggregate loans to the Company in principal amounts of US$3,000,000, US$2,000,000 and US$5,000,000. In connection with the Loan Agreements, the Company executed and delivered Convertible Promissory Notes (the “ Notes ”) in favor of each of Charmnew, Grieg and CD Financial. The Loan Agreement and Note entered into with CD Financial replace an existing credit facility between the Company and CD Financial.

  

The other material terms and conditions of the loan transactions are as follows:

  

The Notes will mature on the date that is two (2) years from the effective date of each Note (“ Maturity Date ”), at which time all indebtedness due under the Notes will be due and payable;

Interest on the outstanding principal amount of the Notes accrues at the rate of five percent (5%) per annum and is payable semi-annually;

Charmnew, Grieg and CD Financial each have the option, on or prior to the Maturity Date, to convert the entire principal amount of and all accrued but unpaid interest on the Note into shares of the Company’s common stock. The applicable conversion price is the average of the closing price for the shares during the ten (10) business days prior to each date a loan advance was disbursed, less a discount of 10%; and

The Company may not prepay the loan without the lender’s prior written consent.

 

The above summary of the financing transactions entered into by the Company with Charmnew, Grieg and CD Financial is qualified in its entirety by reference to the copies of the Loan Agreements and Notes, filed as Exhibits 10.1, 10.2, 10.3, 10.4, 10.5 and 10.6 , respectively, to this report, and incorporated herein by reference.

  

Item 3.02 Unregistered Sales of Equity Securities.

 

The information included in Item 1.01 of this Current Report on Form 8-K is hereby incorporated by reference into this Item 3.02 .

  

Item 9.01 Financial Statements and Exhibits.

 

  (d) Exhibits

 

Exhibit No   Description
     
10.1   Convertible Loan Agreement between the Company and Charmnew Limited dated December 12, 2018
     
10.2   Convertible Loan Agreement between the Company and Grieg International Limited dated December 12, 2018
     
10.3   Amended and Restated Convertible Loan Agreement between the Company and CD Financial, LLC dated December 14, 2018
     
10.4   Convertible Promissory Note in favor of Charmnew Limited dated December 12, 2018
     
10.5   Convertible Promissory Note in favor of Grieg International Limited dated December 12, 2018
     
10.6   Amended and Restated Convertible Promissory Note in favor of CD Financial, LLC dated December 14, 2018

 

 

  

SIGNATURE

  

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

  

  CELSIUS HOLDINGS, INC.  
       
Date:  December 19, 2018 By:  /s/ John Fieldly  
    John Fieldly, Chief Executive Officer  

 

 

Exhibit 10.1

 

CONVERTIBLE LOAN AGREEMENT

 

THIS CONVERTIBLE LOAN AGREEMENT (the “Agreement” ) is made and entered into as of December 12, 2018 (“ Effective Date ”), by and between CHARMNEW LIMITED (“ Lender ”), and CELSIUS HOLDINGS, INC. , a Nevada corporation (“ Borrower ”).

 

RECITALS:

 

A.           Borrower has requested Lender to provide an unsecured convertible line of credit facility to the Borrower, subject to the compliance by Borrower with all the terms and conditions hereof; and

 

B.            Lender agrees to fund such credit facility on the terms and conditions forth herein.

 

NOW, THEREFORE, in consideration of the mutual promises, conditions, representations and warranties hereinafter set forth and for other good and valuable consideration, the parties hereto have mutually agreed as follows:

 

1.             Defined Terms . As used in this Agreement, the following terms shall have the following meanings:

 

Agreement shall mean this Convertible Loan Agreement.

 

Borrower shall have the meaning set forth above.

 

Business Day shall mean any day except a Saturday, a Sunday or any other day on which commercial banks are required or authorized to close in New York, New York.

 

Contractual Obligation shall mean any provision of any agreement, instrument, or undertaking to which such Person is a party or by which it or any of its property is bound.

 

Conversion Price shall have the meaning set forth in Section 2.5.

 

Default Rate shall mean that default rate more specifically described in the Note.

 

Event of Default refers to any one of the events enumerated in Article 7.

 

GAAP shall mean generally accepted accounting principles in the United States of America as defined by the Financial Accounting Standards Board or its successor, as in effect from time to time consistently applied.

 

Governmental Authority means any nation or government, any state or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions pertaining to government.

 

Lender shall have the meaning set forth above.

 

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Lien shall mean any interest in property (real, personal, or mixed, and tangible or intangible) securing an obligation owed to, or a claim by, a Person other than the owner of the property, whether such interest is based on the common law, statute or contract, and including a security interest, security title or Lien arising from a security agreement, mortgage, deed of trust, deed to secure debt, encumbrance, pledge, conditional sale or trust receipt or a lease, consignment or bailment for security purposes. The term “Lien” shall include covenants, conditions, restrictions, leases, and other encumbrances affecting any property. For the purpose of this Agreement, Borrower shall be deemed to be the owner of any property which it has acquired or holds subject to a conditional sale agreement or other arrangement pursuant to which title to the Property has been retained by or vested in some other Person for security purposes.

 

Loan shall mean that convertible line of credit facility in the maximum principal amount of THREE MILLION DOLLARS ($3,000,000) advanced by Lender to Borrower from time to time evidenced by the Note as further described in Article 2.

 

Loan Advance shall have the meaning set forth in Section 2.1.

 

Loan Documents refers to this Agreement, the Note and any other instrument executed and delivered to evidence the Loan, and any and all other agreements, instruments, and documents heretofore, now or hereafter, executed by Borrower and delivered to Lender in respect to the transactions contemplated by this Agreement.

 

Maturity Date shall have the meaning set forth in Section 2.1.

 

Note shall have the meaning set forth in Section 2.1.

 

Person shall mean an individual, partnership, corporation, joint stock company, firm, land trust, business trust, unincorporated organization, limited liability company, or other business entity, or a government or agency or political subdivision thereof.

 

Requirement of Law shall mean as to any Person, the articles of incorporation and bylaws or other organizational or governing documents of the Person, and any law, treaty, rule or regulation, or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding on the Person or any of its property or to which the Person or any of its property is subject.

 

2.             The Loan .

 

2.1     Loan Terms . Subject to the terms and conditions hereof, Lender agrees to make available to Borrower an unsecured convertible line of credit (the “ Loan ”) of up to THREE MILLION US DOLLARS (US$3,000,000) . The Loan shall be repaid or converted as set forth below on or before the date that is two years from the Effective Date (the “ Maturity Date ”). From time to time until the Maturity Date, Lender shall afford Borrower advances of funds under the Loan in amounts of not less than One Million US Dollars (US$1,000,000.00) (each, a “ Loan Advance ” and collectively, the “ Loan Advances ”). Until the Maturity Date, Borrower may borrow under this Section 2.1; provided, that the amount of any Loan Advance to be made at any time shall not exceed the availability under the Loan at such time and no Event of Default has occurred or is continuing at such time. Each Loan Advance shall be made on notice by Borrower to Lender via electronic transmission or at the address specified herein. Any such notice must be given not less than three (3) Business Days prior to the proposed Loan Advance. Each such notice must be given in writing by Borrower. The date of disbursement of each Loan Advance shall be referred to herein as an “ Advance Date .” Borrower shall execute and deliver to Lender a promissory note to evidence the Loan, dated as of the Effective Date and in a form satisfactory to Lender (the “ Note ”).

 

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2.2        Interest . Interest on the Loan shall accrue on the Loan Advances outstanding from time to time at the rate of five percent (5%) per annum and is payable semi-annually. Interest will be calculated on the Loan Advances on the basis of a 360-day year consisting of twelve 30 day months. On or prior to the Maturity Date, all accrued but unpaid interest and outstanding principal shall be convertible in accordance with Section 2.5 below.

 

2.3        Prepayment . Prepayments of outstanding principal and accrued but unpaid interest may be made without penalty at any time prior to the Maturity Date upon receipt of written consent from Lender, provided , that any prepayment shall be accompanied by accrued but unpaid interest on the amount of such principal prepayment.

 

2.4        Term of Agreement . This Agreement shall remain in force and effect until the Maturity Date, or any extension thereof.

 

2.5        Conversion of the Loan . Subject to Section 5(b) of the Note, at any time prior to the Maturity Date, the then outstanding principal balance and accrued but unpaid interest under this Agreement and the Note shall be convertible, athe option of the Holder, into shares of Borrower’s common stock (“ Shares ”) at the average of the closing price for the Shares during the ten (10) Business Days prior to each Advance Date, less a discount of 10%, as may be adjusted for any share splits, share dividends, reclassifications and other similar events which have occurred before such conversion (the “ Conversion Price ”). Subject to Section 5(b), Upon the Maturity Date, the then outstanding principal balance and accrued but unpaid interest under this Agreement and the Note shall be automatically converted into Shares at the Conversion Price up to the Conversion Limitation (as defined in the Note) (if applicable), and the remaining outstanding principal balance and accrued but unpaid interest under the Note, if any, shall be settled in cash pursuant to Section 4(b) of the Note.

 

2.6        Use of Proceeds . Borrower shall use the proceeds of the Loan for (i) manufacturing, marketing and sale of Celsius® products in the People’s Republic of China, (ii) expansion in U.S. markets and (iii) for working capital and other general corporate purposes.

 

2.7        Financing Transaction . Subject to Section 5(b) of the Note, if, at any time during which the Loan remains outstanding pursuant to the terms of this Agreement the Company consummates a transaction which entails a private or public financing generating gross proceeds of not less than $25.0 million, the then outstanding principal balance and accrued but unpaid interest under the Loan shall be automatically converted into Shares at the Conversion Price up to the Conversion Limitation (if applicable), and the remaining outstanding principal balance and accrued but unpaid interest under the Note, if any, shall be settled in cash pursuant to Section 4(b) of the Note.

 

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2.8        Payments .

 

(a)       All payments made under the Note shall be without setoff or counterclaim, and in currency of the United States of America that at the time of payment is legal tender for the payment of public and private debt.

 

(b)       Any payments not made as and when due with respect to the Loan (whether at stated maturity, by acceleration, or otherwise) shall bear interest at the Default Rate from the date due until paid, payable on demand.

 

(c)       All sums paid to Lender by Borrower hereunder shall be paid directly to Lender in immediately available funds.

 

2.9        Limitation on Interest Charges . Lender and Borrower intend to comply strictly with applicable law regulating the maximum allowable rate or amount of interest that Lender may charge and collect on the Loans to Borrower pursuant to this Agreement. Accordingly, and notwithstanding anything in any Note or in this Agreement to the contrary, the maximum, aggregate amount of interest and other charges constituting interest under applicable law that are payable, chargeable, or receivable under any Note and this Agreement shall not exceed the maximum amount of interest now allowed by applicable law or any greater amount of interest allowed because of a future amendment to existing law. Borrower is not liable for any interest in excess of the maximum lawful amount, and any excess interest charged or collected by Lender will constitute an inadvertent mistake and, if charged but not paid, will be cancelled automatically, or, if paid, will be either refunded to Borrower or credited against the outstanding principal balance of the applicable Note, at the election of Lender.

 

3.             Conditions of Lending . In addition to any other requirements set forth in this Agreement, Lender shall not be obligated to make any advance under the Loan unless at the time thereof the following conditions shall have been met:

 

3.1        Company Proceedings . All proper company proceedings shall have been taken by Borrower to authorize this Agreement and the transactions contemplated hereby.

 

3.2        Loan Documents . Lender shall have received executed copies of this Agreement and the Note.

 

3.3        Default . No event shall have occurred or be continuing which constitutes an Event of Default.

 

3.4        Availability Under Loan . With respect to a Loan Advance, there must be sufficient availability of credit under the Loan for such Loan Advance to be made.

 

3.5        Additional Documents . Lender shall have received such additional legal certificates, proceedings, instruments, and other documents as Lender or its counsel may reasonably request.

 

4.             Representations, Warranties, and General Covenants . Borrower hereby represents, warrants, and covenants to Lender that:

 

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4.1        Organization and Qualification of Borrower . Borrower is a corporation duly organized, validly existing and in good standing under the laws of its state of incorporation or formation; has the power to own its properties and to carry on its business as now being conducted; and is duly qualified to do business and is in good standing in every jurisdiction in which the character of the properties owned by it or in which the transaction of its business makes its qualification necessary.

 

4.2        Corporate Power and Authorization; Compliance with Law . Borrower has full power and authority to enter into this Agreement, to borrow hereunder, to execute and deliver the Note and any other Loan Documents, and to incur the obligations provided for herein, all of which have been authorized by all proper and necessary corporate action. Borrower is in material compliance with all Requirements of Law applicable to it and possesses all governmental franchises, licenses, and permits that are necessary to own or lease its assets and to carry on its business as now conducted.

 

4.3        Enforceability; No Legal Bar . This Agreement has been, and each other Loan Document to which it is a party will be, duly executed and delivered to Lender on behalf of Borrower. This Agreement and each of the other Loan Documents constitute, and the Note when executed and delivered for value received will constitute, a valid and legally binding obligation of Borrower enforceable in accordance with their respective terms. The execution, delivery, and performance by Borrower of this Agreement and the other Loan Documents to which it is a party, Borrower’s borrowings pursuant to this Agreement, and use of the loan proceeds, will not violate any Requirement of Law applicable to Borrower or constitute a breach or violation of, a default under, or require any consent under, any of its Contractual Obligations, and will not result in a breach or violation of, or require the creation or imposition of any Lien on any of its properties or revenues pursuant to any Requirement of Law or Contractual Obligation.

 

4.4        Taxes . Borrower has filed all federal, state, and local tax returns which are required to be filed and has paid, or made adequate provision for the payment of, all taxes which have or may become due pursuant to said returns. Borrower has paid all withholding, FICA and other payments required by federal, state or local governments with respect to any wages paid to employees.

 

4.5        Full Disclosure . All information furnished by Borrower to Lender concerning Borrower, its financial condition, or otherwise for the purpose of obtaining credit or an extension of credit, is, or will be at the time the same is furnished, accurate and correct in all material respects and complete insofar as completeness may be necessary to give Lender a true and accurate knowledge of the subject matter. The books of account, minute books, and stock record books of Borrower are complete and correct and have been maintained in accordance with good business practices, and there have been no transactions adversely affecting the business of Borrower that should have been set forth therein and have not been so set forth.

 

4.6        Representations True . No representation or warranty by Borrower contained herein or in any certificate or other document furnished by Borrower pursuant hereto contains any untrue statement of material fact or omits to state a material fact necessary to make such representation or warranty not misleading in light of the circumstances under which it was made.

 

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4.7        Compliance with Loan Documents . Borrower acknowledges and agrees that its timely and complete compliance with all of the terms and conditions contained in the documents evidencing and securing the loan obligation is material consideration for the loan.

 

5.             Affirmative Covenants . Borrower agrees and covenants that until the Maturity Date, Borrower shall:

 

5.1        Insurance . Maintain insurance, including but not limited to casualty and business interruption in such amounts and against such risks as is customarily maintained in similar businesses operating in the same vicinity.

 

5.2        Company Existence ; Qualification . Maintain its company existence and, in each jurisdiction in which the character of the property owned by it or in which the transaction of its business makes its qualification necessary, maintain good standing.

 

5.3        Taxes . During its fiscal year, accrue all current tax liabilities of all kinds, all required withholding of income taxes of employees and all required payments to employee benefit plans, and pay the same when they become due.

 

5.4        Compliance with Laws . Comply in all material respects with all Requirements of Law, and pay all taxes, assessments, charges, claims for labor, supplies, rent, and other obligations which, if unpaid, might give rise to a Lien against property of Borrower, except claims being contested in good faith by appropriate proceedings. Specifically, Borrower shall pay when due all taxes and assessments upon this Agreement, the Note, or any Loan Document, including, without limitation, any stamp taxes or intangibles taxes imposed by virtue of the transactions outlined herein.

 

5.5        Conduct of Business . Conduct its business as now conducted and do all things necessary to preserve, renew, and keep in full force and effect its rights, patents, permits, licenses, franchises, and trade names necessary to continue its business.

 

5.6        Maintenance of Properties . Keep its properties in good repair, working order and condition, reasonable wear and tear excepted, and from time to time make all needed and proper repairs, renewals, replacements, additions, and improvements thereto and comply with the provisions of all leases to which it is a party or under which it occupies property so as to prevent any loss or forfeiture thereof or thereunder.

 

6.             Negative Covenants . Until the Maturity Date, without the prior written consent of Lender, Borrower shall not:

 

6.1        Liquidation, Merger or Consolidation . Liquidate, wind up, or dissolve itself (or suffer any liquidation or dissolution), or enter into any merger or consolidation, or acquire all or substantially all of the assets of any Person without the prior written consent of Lender; or sell, lease, transfer or otherwise dispose of any of its assets, except sales in the ordinary course of its business.

 

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6.2        Change in Business, Management or Ownership . Enter into any business which is substantially different from the business or businesses in which it is presently engaged or substantially change its executive management or majority ownership without the prior written consent of the Lender.

 

7.             Events of Default . The occurrence of any one or more of the following events shall constitute an Event of Default (unless and except to the extent that the same is cured within the applicable cure period, if any, or, at the sole discretion of Lender, at any time thereafter):

 

7.1        Payment Default . If Borrower shall fail to make any payment of any installment of principal or interest on the Notes within five (5) Business Days of the date due and payable; or

 

7.2        Other Defaults . If, after twenty (20) Business Days’ written notice from Lender, Borrower fails to perform, keep or observe any other covenant, agreement or provision of the Note or of this Agreement or if there is a default in any Loan Document or the Note; or

 

7.3        Representations False . If any warranty, representation, or other statement made or furnished to Lender by or on behalf of Borrower or in any of the Loan Documents proves to be false or misleading in any material respect when made or furnished and is not cured after twenty (20) Business Days’ written notice from Lender; or

 

7.4        Insolvency . If Borrower shall be involved in financial difficulties as evidenced by:

 

(a)       its commencing a voluntary case under the United States Bankruptcy Code or any similar law regarding debtor’s rights and remedies or an admission seeking the relief therein provided;

 

(b)       its making a general assignment for the benefit of its creditors; or

 

(c)       its voluntarily liquidating or terminating operations or applying for or consenting to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of such Person or of all or of a substantial part of its assets;

 

7.5        Delisting . The Shares shall not be eligible for listing or quotation for trading on the Nasdaq Global Market or the Nasdaq Capital Market (as applicable) for a period of ten (10) consecutive trading days, and shall not be eligible to resume listing or quotation for trading thereon within thirty (30) trading days

 

7.6        Stop Trade . A stop trade order imposed judicially or by the U.S. Securities and Exchange Commission or by the OTC Bulletin Board or other exchange trading suspension with respect to Shares and such stop order not being rectified and resumed within thirty (30) trading days;

 

7.7        Cross Default . A default by the Company or any of its subsidiaries under any loan, mortgage, indenture, notes, debentures or any other instrument evidencing any indebtedness of the Company or any of its subsidiaries in excess of $1,000,000, that results in acceleration of the maturity of such debt or liability, or failure to pay any such debt when due; or

 

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7.8       Inability to Convert . The Company’s notice to the Holder, including by way of public announcement, at any time, of its inability to comply or its intention not to comply with proper requests for conversion of this Note into Shares.

 

On the occurrence of any Event of Default, Lender may at its option proceed to protect and enforce its rights by suit in equity, action at law and/or the appropriate proceeding either for specific performance of any covenant or condition contained in the Notes or in any Loan Document, and/or declare the unpaid balance of the Loan and Note together with all accrued interest to be forthwith due and payable in, at Lender’s option, in cash and/or Shares (at the Conversion Price), and thereupon such balance shall become so due and payable without presentation, protest or further demand or notice of any kind, all of which are hereby expressly waived. The rights and remedies provided by this Note shall be cumulative, and shall be in addition to, and not exclusive of, any other rights and remedies available at law or in equity. Each request for a Loan Advance made by Borrower pursuant to this Agreement or any of the other Loan Documents shall constitute an automatic representation and warranty by Borrower to Lender that there does not then exist any Event of Default.

 

8.             Miscellaneous.

 

8.1        Costs and Expenses . Borrower shall pay the reasonable fees and expenses of the counsel to Lender, in an amount not to exceed $5,000 in the aggregate.

 

8.2        Actions Not Constituting a Waiver . Neither (i) the failure at any time or times hereafter to require strict performance by Borrower of any of its provisions, warranties, terms and conditions contained in this Agreement or any other agreement, document or instrument now or hereafter executed by Borrower, and delivered to Lender, nor (ii) the failure of Lender to take action or to exercise its remedies with respect to any default or Event of Default hereunder, nor (iii) any delay or omission of Lender to exercise any right, remedy, power, or privilege hereunder after the occurrence of a default or Event of Default, shall act to waive, affect, or diminish any right of Lender to demand strict compliance with the terms of this Agreement or to exercise remedies with respect to any default or Event of Default.

 

8.3        Headings; Exhibits . Except for the definitions set forth in this Agreement, the headings of the articles, sections, paragraphs and subdivisions of this Agreement are for convenience of reference only, are not to be considered a pan hereof, and shall not limit or otherwise affect any of the terms hereof. Unless otherwise expressly indicated, all references in this Agreement to a section or an exhibit are to a section or an exhibit of this Agreement. All exhibits referred to in this Agreement are an integral part of it and are incorporated by reference in it.

 

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8.4        Notices . Any notice or demand which by any provision of this Agreement is required or provided to be given shall be deemed to have been sufficiently given or served for all purposes by being delivered in person or by electronic transmission to the party to whom the notice or demand is directed or by being sent by overnight courier or first class mail, postage prepaid, to the following address: If to Borrower, 2424 North Federal Highway, Suite 208, Boca Raton Florida 33431 or if any other address shall at any time be designated by Borrower in writing to the holders of record of the Note at the time of such designation to such other address; and if to Lender, c/o 7 th Floor, Cheung Kong Center, 2 Queen’s Road Central, Central, Hong Kong (attn.: Ezra Pau / Eirene Yeung), or if any other address shall at any time be designated in writing to Borrower, to such other address.

 

8.5        Benefits . All of the terms and provisions of this Agreement shall bind and inure to the benefit of the parties hereto and their respective successors and assigns. No right or obligation hereunder shall be assigned by any party without the express prior written consent of the other party, which consent will not be unreasonably withheld. Neither this Agreement nor any term hereof shall be amended, modified, waived or varied except by an instrument in writing signed by the Lender and Borrower.

 

8.6        Governing Law and Venue . This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, without regard to its conflicts of laws provisions. Any legal action regarding this Agreement shall be brought in the courts located in Palm Beach County, Florida.

 

8.7        Counterparts; Severability . This Agreement may be executed in any number of counterparts, each of which, when executed and delivered, shall be an original, but such counterparts shall together constitute one and the same instrument. Any provision in this Agreement which may be unenforceable or invalid under any law shall be ineffective to the extent of such unenforceability or invalidity without affecting the enforceability or validity of any other provisions hereof.

 

8.8        Limitation of Grant . Nothing in this Agreement, whether express or implied, is intended or should be construed to confer upon, or to grant to, any person, except Lender and Borrower, any right, remedy, or claim under or because of either this Agreement or any provision of it.

 

8.9        Confidentiality . Lender shall maintain the confidentiality of trade secret information furnished to Lender regarding Borrower’s business operations, except to the extent that disclosure of this information is required by law or by a court of competent jurisdiction.

 

8.10        Waiver of Trial By Jury . The Borrower and the Lender knowingly, voluntarily and intentionally waive the right any of them may have to a trial by jury in respect of any litigation based hereon, or arising out of, under or in connection with the Loan Documents and any agreement contemplated to be executed in conjunction therewith, or any course of conduct, course of dealing, statements (whether verbal or written) or actions of any party. This provision is a material inducement for the Lender entering into the loan evidenced by the Loan Documents.

 

8.11        Currency . All references to “$” or dollars in this Note shall refer to the currency of the United States.

 

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8.12        NOTICE OF FINAL AGREEMENT . THIS WRITTEN AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.

 

[Signature Page Follows]

 

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IN WITNESS WHEREOF , each of Borrower and Lender has caused this Agreement to be executed by its duly authorized officer.

 

     
  BORROWER :
     
  CELSIUS HOLDINGS, INC.
     
  By: /s/ John Fieldly
  Name:John Fieldly
  Title:Chief Executive Officer
     
  LENDER :
     
  CHARMNEW LIMITED
     
  By: /s/ Pau Yee Wan, Ezra
  Name:Pau Yee Wan, Ezra
  Title:Director

 

[Signature Page to the Convertible Loan Agreement by and between
Celsius Holdings, Inc. and Charmnew Limited]

 

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Exhibit 10.2

 

CONVERTIBLE LOAN AGREEMENT

 

THIS CONVERTIBLE LOAN AGREEMENT (the “Agreement” ) is made and entered into as of December 12, 2018 (“ Effective Date ”), by and between GRIEG INTERNATIONAL LIMITED (“ Lender ”), and CELSIUS HOLDINGS, INC. , a Nevada corporation (“ Borrower ”).

 

RECITALS:

 

A.             Borrower has requested Lender to provide an unsecured convertible line of credit facility to the Borrower, subject to the compliance by Borrower with all the terms and conditions hereof; and

 

B.              Lender agrees to fund such credit facility on the terms and conditions forth herein.

 

NOW, THEREFORE, in consideration of the mutual promises, conditions, representations and warranties hereinafter set forth and for other good and valuable consideration, the parties hereto have mutually agreed as follows:

 

1.              Defined Terms . As used in this Agreement, the following terms shall have the following meanings:

 

Agreement shall mean this Convertible Loan Agreement.

 

Borrower shall have the meaning set forth above.

 

Business Day shall mean any day except a Saturday, a Sunday or any other day on which commercial banks are required or authorized to close in New York, New York.

 

Contractual Obligation shall mean any provision of any agreement, instrument, or undertaking to which such Person is a party or by which it or any of its property is bound.

 

Conversion Price shall have the meaning set forth in Section 2.5.

 

Default Rate shall mean that default rate more specifically described in the Note.

 

Event of Default refers to any one of the events enumerated in Article 7.

 

GAAP shall mean generally accepted accounting principles in the United States of America as defined by the Financial Accounting Standards Board or its successor, as in effect from time to time consistently applied.

 

Governmental Authority means any nation or government, any state or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions pertaining to government.

 

Lender shall have the meaning set forth above.

 

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Lien shall mean any interest in property (real, personal, or mixed, and tangible or intangible) securing an obligation owed to, or a claim by, a Person other than the owner of the property, whether such interest is based on the common law, statute or contract, and including a security interest, security title or Lien arising from a security agreement, mortgage, deed of trust, deed to secure debt, encumbrance, pledge, conditional sale or trust receipt or a lease, consignment or bailment for security purposes. The term “Lien” shall include covenants, conditions, restrictions, leases, and other encumbrances affecting any property. For the purpose of this Agreement, Borrower shall be deemed to be the owner of any property which it has acquired or holds subject to a conditional sale agreement or other arrangement pursuant to which title to the Property has been retained by or vested in some other Person for security purposes.

 

Loan shall mean that convertible line of credit facility in the maximum principal amount of TWO MILLION DOLLARS ($2,000,000) advanced by Lender to Borrower from time to time evidenced by the Note as further described in Article 2.

 

Loan Advance shall have the meaning set forth in Section 2.1.

 

Loan Documents refers to this Agreement, the Note and any other instrument executed and delivered to evidence the Loan, and any and all other agreements, instruments, and documents heretofore, now or hereafter, executed by Borrower and delivered to Lender in respect to the transactions contemplated by this Agreement.

 

Maturity Date shall have the meaning set forth in Section 2.1.

 

Note shall have the meaning set forth in Section 2.1.

 

Person shall mean an individual, partnership, corporation, joint stock company, firm, land trust, business trust, unincorporated organization, limited liability company, or other business entity, or a government or agency or political subdivision thereof.

 

Requirement of Law shall mean as to any Person, the articles of incorporation and bylaws or other organizational or governing documents of the Person, and any law, treaty, rule or regulation, or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding on the Person or any of its property or to which the Person or any of its property is subject.

 

2.               The Loan .

 

2.1           Loan Terms . Subject to the terms and conditions hereof, Lender agrees to make available to Borrower an unsecured convertible line of credit (the “ Loan ”) of up to TWO MILLION US DOLLARS (US$2,000,000) . The Loan shall be repaid or converted as set forth below on or before the date that is two years from the Effective Date (the “ Maturity Date ”). From time to time until the Maturity Date, Lender shall afford Borrower advances of funds under the Loan in amounts of not less than One Million US Dollars (US$1,000,000.00) (each, a “ Loan Advance ” and collectively, the “ Loan Advances ”). Until the Maturity Date, Borrower may borrow under this Section 2.1; provided, that the amount of any Loan Advance to be made at any time shall not exceed the availability under the Loan at such time and no Event of Default has occurred or is continuing at such time. Each Loan Advance shall be made on notice by Borrower to Lender via electronic transmission or at the address specified herein. Any such notice must be given not less than three (3) Business Days prior to the proposed Loan Advance. Each such notice must be given in writing by Borrower. The date of disbursement of each Loan Advance shall be referred to herein as an “ Advance Date .” Borrower shall execute and deliver to Lender a promissory note to evidence the Loan, dated as of the Effective Date and in a form satisfactory to Lender (the “ Note ”).

 

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2.2            Interest . Interest on the Loan shall accrue on the Loan Advances outstanding from time to time at the rate of five percent (5%) per annum and is payable semi-annually. Interest will be calculated on the Loan Advances on the basis of a 360-day year consisting of twelve 30 day months. On or prior to the Maturity Date, all accrued but unpaid interest and outstanding principal shall be convertible in accordance with Section 2.5 below.

 

2.3            Prepayment . Prepayments of outstanding principal and accrued but unpaid interest may be made without penalty at any time prior to the Maturity Date upon receipt of written consent from Lender, provided , that any prepayment shall be accompanied by accrued but unpaid interest on the amount of such principal prepayment.

 

2.4            Term of Agreement . This Agreement shall remain in force and effect until the Maturity Date, or any extension thereof.

 

2.5            Conversion of the Loan . Subject to Section 5(b) of the Note, at any time prior to the Maturity Date, the then outstanding principal balance and accrued but unpaid interest under this Agreement and the Note shall be convertible, athe option of the Holder, into shares of Borrower’s common stock (“ Shares ”) at the average of the closing price for the Shares during the ten (10) Business Days prior to each Advance Date, less a discount of 10%, as may be adjusted for any share splits, share dividends, reclassifications and other similar events which have occurred before such conversion (the “ Conversion Price ”). Subject to Section 5(b), Upon the Maturity Date, the then outstanding principal balance and accrued but unpaid interest under this Agreement and the Note shall be automatically converted into Shares at the Conversion Price up to the Conversion Limitation (as defined in the Note) (if applicable), and the remaining outstanding principal balance and accrued but unpaid interest under the Note, if any, shall be settled in cash pursuant to Section 4(b) of the Note.

 

2.6            Use of Proceeds . Borrower shall use the proceeds of the Loan for (i) manufacturing, marketing and sale of Celsius® products in the People’s Republic of China, (ii) expansion in U.S. markets and (iii) for working capital and other general corporate purposes.

 

2.7            Financing Transaction . Subject to Section 5(b) of the Note, if, at any time during which the Loan remains outstanding pursuant to the terms of this Agreement the Company consummates a transaction which entails a private or public financing generating gross proceeds of not less than $25.0 million, the then outstanding principal balance and accrued but unpaid interest under the Loan shall be automatically converted into Shares at the Conversion Price up to the Conversion Limitation (if applicable), and the remaining outstanding principal balance and accrued but unpaid interest under the Note, if any, shall be settled in cash pursuant to Section 4(b) of the Note.

 

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2.8            Payments .

 

(a)                   All payments made under the Note shall be without setoff or counterclaim, and in currency of the United States of America that at the time of payment is legal tender for the payment of public and private debt.

 

(b)                   Any payments not made as and when due with respect to the Loan (whether at stated maturity, by acceleration, or otherwise) shall bear interest at the Default Rate from the date due until paid, payable on demand.

 

(c)                   All sums paid to Lender by Borrower hereunder shall be paid directly to Lender in immediately available funds.

 

2.9            Limitation on Interest Charges . Lender and Borrower intend to comply strictly with applicable law regulating the maximum allowable rate or amount of interest that Lender may charge and collect on the Loans to Borrower pursuant to this Agreement. Accordingly, and notwithstanding anything in any Note or in this Agreement to the contrary, the maximum, aggregate amount of interest and other charges constituting interest under applicable law that are payable, chargeable, or receivable under any Note and this Agreement shall not exceed the maximum amount of interest now allowed by applicable law or any greater amount of interest allowed because of a future amendment to existing law. Borrower is not liable for any interest in excess of the maximum lawful amount, and any excess interest charged or collected by Lender will constitute an inadvertent mistake and, if charged but not paid, will be cancelled automatically, or, if paid, will be either refunded to Borrower or credited against the outstanding principal balance of the applicable Note, at the election of Lender.

 

3.               Conditions of Lending . In addition to any other requirements set forth in this Agreement, Lender shall not be obligated to make any advance under the Loan unless at the time thereof the following conditions shall have been met:

 

3.1            Company Proceedings . All proper company proceedings shall have been taken by Borrower to authorize this Agreement and the transactions contemplated hereby.

 

3.2            Loan Documents . Lender shall have received executed copies of this Agreement and the Note.

 

3.3            Default . No event shall have occurred or be continuing which constitutes an Event of Default.

 

3.4            Availability Under Loan . With respect to a Loan Advance, there must be sufficient availability of credit under the Loan for such Loan Advance to be made.

 

3.5            Additional Documents . Lender shall have received such additional legal certificates, proceedings, instruments, and other documents as Lender or its counsel may reasonably request.

 

4.              Representations, Warranties, and General Covenants . Borrower hereby represents, warrants, and covenants to Lender that:

 

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4.1            Organization and Qualification of Borrower . Borrower is a corporation duly organized, validly existing and in good standing under the laws of its state of incorporation or formation; has the power to own its properties and to carry on its business as now being conducted; and is duly qualified to do business and is in good standing in every jurisdiction in which the character of the properties owned by it or in which the transaction of its business makes its qualification necessary.

 

4.2            Corporate Power and Authorization; Compliance with Law . Borrower has full power and authority to enter into this Agreement, to borrow hereunder, to execute and deliver the Note and any other Loan Documents, and to incur the obligations provided for herein, all of which have been authorized by all proper and necessary corporate action. Borrower is in material compliance with all Requirements of Law applicable to it and possesses all governmental franchises, licenses, and permits that are necessary to own or lease its assets and to carry on its business as now conducted.

 

4.3            Enforceability; No Legal Bar . This Agreement has been, and each other Loan Document to which it is a party will be, duly executed and delivered to Lender on behalf of Borrower. This Agreement and each of the other Loan Documents constitute, and the Note when executed and delivered for value received will constitute, a valid and legally binding obligation of Borrower enforceable in accordance with their respective terms. The execution, delivery, and performance by Borrower of this Agreement and the other Loan Documents to which it is a party, Borrower’s borrowings pursuant to this Agreement, and use of the loan proceeds, will not violate any Requirement of Law applicable to Borrower or constitute a breach or violation of, a default under, or require any consent under, any of its Contractual Obligations, and will not result in a breach or violation of, or require the creation or imposition of any Lien on any of its properties or revenues pursuant to any Requirement of Law or Contractual Obligation.

 

4.4            Taxes . Borrower has filed all federal, state, and local tax returns which are required to be filed and has paid, or made adequate provision for the payment of, all taxes which have or may become due pursuant to said returns. Borrower has paid all withholding, FICA and other payments required by federal, state or local governments with respect to any wages paid to employees.

 

4.5            Full Disclosure . All information furnished by Borrower to Lender concerning Borrower, its financial condition, or otherwise for the purpose of obtaining credit or an extension of credit, is, or will be at the time the same is furnished, accurate and correct in all material respects and complete insofar as completeness may be necessary to give Lender a true and accurate knowledge of the subject matter. The books of account, minute books, and stock record books of Borrower are complete and correct and have been maintained in accordance with good business practices, and there have been no transactions adversely affecting the business of Borrower that should have been set forth therein and have not been so set forth.

 

4.6            Representations True . No representation or warranty by Borrower contained herein or in any certificate or other document furnished by Borrower pursuant hereto contains any untrue statement of material fact or omits to state a material fact necessary to make such representation or warranty not misleading in light of the circumstances under which it was made.

 

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4.7            Compliance with Loan Documents . Borrower acknowledges and agrees that its timely and complete compliance with all of the terms and conditions contained in the documents evidencing and securing the loan obligation is material consideration for the loan.

 

5.               Affirmative Covenants . Borrower agrees and covenants that until the Maturity Date, Borrower shall:

 

5.1            Insurance . Maintain insurance, including but not limited to casualty and business interruption in such amounts and against such risks as is customarily maintained in similar businesses operating in the same vicinity.

 

5.2            Company Existence ; Qualification . Maintain its company existence and, in each jurisdiction in which the character of the property owned by it or in which the transaction of its business makes its qualification necessary, maintain good standing.

 

5.3            Taxes . During its fiscal year, accrue all current tax liabilities of all kinds, all required withholding of income taxes of employees and all required payments to employee benefit plans, and pay the same when they become due.

 

5.4            Compliance with Laws . Comply in all material respects with all Requirements of Law, and pay all taxes, assessments, charges, claims for labor, supplies, rent, and other obligations which, if unpaid, might give rise to a Lien against property of Borrower, except claims being contested in good faith by appropriate proceedings. Specifically, Borrower shall pay when due all taxes and assessments upon this Agreement, the Note, or any Loan Document, including, without limitation, any stamp taxes or intangibles taxes imposed by virtue of the transactions outlined herein.

 

5.5            Conduct of Business . Conduct its business as now conducted and do all things necessary to preserve, renew, and keep in full force and effect its rights, patents, permits, licenses, franchises, and trade names necessary to continue its business.

 

5.6            Maintenance of Properties . Keep its properties in good repair, working order and condition, reasonable wear and tear excepted, and from time to time make all needed and proper repairs, renewals, replacements, additions, and improvements thereto and comply with the provisions of all leases to which it is a party or under which it occupies property so as to prevent any loss or forfeiture thereof or thereunder.

 

6.              Negative Covenants . Until the Maturity Date, without the prior written consent of Lender, Borrower shall not:

 

6.1            Liquidation, Merger or Consolidation . Liquidate, wind up, or dissolve itself (or suffer any liquidation or dissolution), or enter into any merger or consolidation, or acquire all or substantially all of the assets of any Person without the prior written consent of Lender; or sell, lease, transfer or otherwise dispose of any of its assets, except sales in the ordinary course of its business.

 

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6.2            Change in Business, Management or Ownership . Enter into any business which is substantially different from the business or businesses in which it is presently engaged or substantially change its executive management or majority ownership without the prior written consent of the Lender.

 

7.               Events of Default . The occurrence of any one or more of the following events shall constitute an Event of Default (unless and except to the extent that the same is cured within the applicable cure period, if any, or, at the sole discretion of Lender, at any time thereafter):

 

7.1            Payment Default . If Borrower shall fail to make any payment of any installment of principal or interest on the Notes within five (5) Business Days of the date due and payable; or

 

7.2            Other Defaults . If, after twenty (20) Business Days’ written notice from Lender, Borrower fails to perform, keep or observe any other covenant, agreement or provision of the Note or of this Agreement or if there is a default in any Loan Document or the Note; or

 

7.3            Representations False . If any warranty, representation, or other statement made or furnished to Lender by or on behalf of Borrower or in any of the Loan Documents proves to be false or misleading in any material respect when made or furnished and is not cured after twenty (20) Business Days’ written notice from Lender; or

 

7.4            Insolvency . If Borrower shall be involved in financial difficulties as evidenced by:

 

(a)                  its commencing a voluntary case under the United States Bankruptcy Code or any similar law regarding debtor’s rights and remedies or an admission seeking the relief therein provided;

 

(b)                  its making a general assignment for the benefit of its creditors; or

 

(c)                  its voluntarily liquidating or terminating operations or applying for or consenting to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of such Person or of all or of a substantial part of its assets;

 

7.5            Delisting . The Shares shall not be eligible for listing or quotation for trading on the Nasdaq Global Market or the Nasdaq Capital Market (as applicable) for a period of ten (10) consecutive trading days, and shall not be eligible to resume listing or quotation for trading thereon within thirty (30) trading days

 

7.6            Stop Trade . A stop trade order imposed judicially or by the U.S. Securities and Exchange Commission or by the OTC Bulletin Board or other exchange trading suspension with respect to Shares and such stop order not being rectified and resumed within thirty (30) trading days;

 

7.7            Cross Default . A default by the Company or any of its subsidiaries under any loan, mortgage, indenture, notes, debentures or any other instrument evidencing any indebtedness of the Company or any of its subsidiaries in excess of $1,000,000, that results in acceleration of the maturity of such debt or liability, or failure to pay any such debt when due; or

 

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7.8            Inability to Convert . The Company’s notice to the Holder, including by way of public announcement, at any time, of its inability to comply or its intention not to comply with proper requests for conversion of this Note into Shares.

 

On the occurrence of any Event of Default, Lender may at its option proceed to protect and enforce its rights by suit in equity, action at law and/or the appropriate proceeding either for specific performance of any covenant or condition contained in the Notes or in any Loan Document, and/or declare the unpaid balance of the Loan and Note together with all accrued interest to be forthwith due and payable in, at Lender’s option, in cash and/or Shares (at the Conversion Price), and thereupon such balance shall become so due and payable without presentation, protest or further demand or notice of any kind, all of which are hereby expressly waived. The rights and remedies provided by this Note shall be cumulative, and shall be in addition to, and not exclusive of, any other rights and remedies available at law or in equity. Each request for a Loan Advance made by Borrower pursuant to this Agreement or any of the other Loan Documents shall constitute an automatic representation and warranty by Borrower to Lender that there does not then exist any Event of Default.

 

8.               Miscellaneous.

 

8.1            Costs and Expenses . Borrower shall pay the reasonable fees and expenses of the counsel to Lender, in an amount not to exceed $5,000 in the aggregate.

 

8.2            Actions Not Constituting a Waiver . Neither (i) the failure at any time or times hereafter to require strict performance by Borrower of any of its provisions, warranties, terms and conditions contained in this Agreement or any other agreement, document or instrument now or hereafter executed by Borrower, and delivered to Lender, nor (ii) the failure of Lender to take action or to exercise its remedies with respect to any default or Event of Default hereunder, nor (iii) any delay or omission of Lender to exercise any right, remedy, power, or privilege hereunder after the occurrence of a default or Event of Default, shall act to waive, affect, or diminish any right of Lender to demand strict compliance with the terms of this Agreement or to exercise remedies with respect to any default or Event of Default.

 

8.3            Headings; Exhibits . Except for the definitions set forth in this Agreement, the headings of the articles, sections, paragraphs and subdivisions of this Agreement are for convenience of reference only, are not to be considered a pan hereof, and shall not limit or otherwise affect any of the terms hereof. Unless otherwise expressly indicated, all references in this Agreement to a section or an exhibit are to a section or an exhibit of this Agreement. All exhibits referred to in this Agreement are an integral part of it and are incorporated by reference in it.

 

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8.4            Notices . Any notice or demand which by any provision of this Agreement is required or provided to be given shall be deemed to have been sufficiently given or served for all purposes by being delivered in person or by electronic transmission to the party to whom the notice or demand is directed or by being sent by overnight courier or first class mail, postage prepaid, to the following address: If to Borrower, 2424 North Federal Highway, Suite 208, Boca Raton Florida 33431 or if any other address shall at any time be designated by Borrower in writing to the holders of record of the Note at the time of such designation to such other address; and if to Lender, c/o 29 th Floor, Harbour Centre, 25 Harbour Road, Wan Chai, Hong Kong (attn.: Jason Wong / Raymond Ng), or if any other address shall at any time be designated in writing to Borrower, to such other address.

 

8.5            Benefits . All of the terms and provisions of this Agreement shall bind and inure to the benefit of the parties hereto and their respective successors and assigns. No right or obligation hereunder shall be assigned by any party without the express prior written consent of the other party, which consent will not be unreasonably withheld. Neither this Agreement nor any term hereof shall be amended, modified, waived or varied except by an instrument in writing signed by the Lender and Borrower.

 

8.6            Governing Law and Venue . This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, without regard to its conflicts of laws provisions. Any legal action regarding this Agreement shall be brought in the courts located in Palm Beach County, Florida.

 

8.7            Counterparts; Severability . This Agreement may be executed in any number of counterparts, each of which, when executed and delivered, shall be an original, but such counterparts shall together constitute one and the same instrument. Any provision in this Agreement which may be unenforceable or invalid under any law shall be ineffective to the extent of such unenforceability or invalidity without affecting the enforceability or validity of any other provisions hereof.

 

8.8            Limitation of Grant . Nothing in this Agreement, whether express or implied, is intended or should be construed to confer upon, or to grant to, any person, except Lender and Borrower, any right, remedy, or claim under or because of either this Agreement or any provision of it.

 

8.9            Confidentiality . Lender shall maintain the confidentiality of trade secret information furnished to Lender regarding Borrower’s business operations, except to the extent that disclosure of this information is required by law or by a court of competent jurisdiction.

 

8.10          Waiver of Trial By Jury . The Borrower and the Lender knowingly, voluntarily and intentionally waive the right any of them may have to a trial by jury in respect of any litigation based hereon, or arising out of, under or in connection with the Loan Documents and any agreement contemplated to be executed in conjunction therewith, or any course of conduct, course of dealing, statements (whether verbal or written) or actions of any party. This provision is a material inducement for the Lender entering into the loan evidenced by the Loan Documents.

 

8.11          Currency . All references to “$” or dollars in this Note shall refer to the currency of the United States.

 

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8.12          NOTICE OF FINAL AGREEMENT . THIS WRITTEN AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.

 

[Signature Page Follows]

 

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IN WITNESS WHEREOF , each of Borrower and Lender has caused this Agreement to be executed by its duly authorized officer.

 

  BORROWER :
       
  CELSIUS HOLDINGS, INC.
       
  By: /s/ John Fieldly
  Name: John Fieldly
  Title: Chief Executive Officer

 

  LENDER :
       
  GRIEG INTERNATIONAL LIMITED
       
  By: /s/ Chau Hoi Shuen, Solina Holly
  Name: Chau Hoi Shuen, Solina Holly
  Title: Director

  

[Signature Page to the Convertible Loan Agreement by and between
Celsius Holdings, Inc. and Grieg International Limited]

 

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Exhibit 10.3

 

AMENDED AND RESTATED CONVERTIBLE LOAN AGREEMENT

 

THIS AMENDED AND RESTATED CONVERTIBLE LOAN AGREEMENT (the “Agreement” ) is made and entered into as of December 14, 2018 (“ Effective Date ”), by and between CD FINANCIAL, LLC, a Florida limited liability company (“ Lender ”), and CELSIUS HOLDINGS, INC. , a Nevada corporation (“ Borrower ”).

 

RECITALS:

 

A.            This Amended and Restated Convertible Loan Agreement amends, restates and replaces in its entirety that certain Loan and Security Agreement (“ Prior Loan Agreement ”), dated as of July 12, 2010, as previously amended, by and between Lender and Borrower.

 

B.            In connection with the Prior Loan Agreement Borrower executed a Promissory Note payable to Lender, as previously amended and restated (the “ Prior Note ”).

 

C.            As of the date hereof, the principal amount of $3,500,000 is due and owning from Borrower to Lender under the Prior Note.

 

D.            Lender and Borrower desire to amend and restate the Prior Loan Agreement and the Prior Note for the purposes of (i) increasing the principal amount available for borrowing under the loan from $4,500,000 to $5,000,000 and (ii) providing for an unsecured convertible line of credit facility granting Lender an option to convert the outstanding principal and interest due under the loan into shares of Borrower’s common stock as further set forth herein.

 

E.            Lender agrees to fund such credit facility on the terms and conditions set forth herein.

 

NOW, THEREFORE, in consideration of the mutual promises, conditions, representations and warranties hereinafter set forth and for other good and valuable consideration, the parties hereto have mutually agreed as follows:

 

1.             Defined Terms . As used in this Agreement, the following terms shall have the following meanings:

 

Agreement shall mean this Amended and Restated Convertible Loan Agreement.

 

Borrower shall have the meaning set forth above.

 

Business Day shall mean any day except a Saturday, a Sunday or any other day on which commercial banks are required or authorized to close in New York, New York.

 

Contractual Obligation shall mean any provision of any agreement, instrument, or undertaking to which such Person is a party or by which it or any of its property is bound.

 

Conversion Price shall have the meaning set forth in Section 2.5.

 

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Default Rate shall mean that default rate more specifically described in the Note.

 

Event of Default refers to any one of the events enumerated in Article 7.

 

GAAP shall mean generally accepted accounting principles in the United States of America as defined by the Financial Accounting Standards Board or its successor, as in effect from time to time consistently applied.

 

Governmental Authority means any nation or government, any state or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions pertaining to government.

 

Lender shall have the meaning set forth above.

 

Lien shall mean any interest in property (real, personal, or mixed, and tangible or intangible) securing an obligation owed to, or a claim by, a Person other than the owner of the property, whether such interest is based on the common law, statute or contract, and including a security interest, security title or Lien arising from a security agreement, mortgage, deed of trust, deed to secure debt, encumbrance, pledge, conditional sale or trust receipt or a lease, consignment or bailment for security purposes. The term “Lien” shall include covenants, conditions, restrictions, leases, and other encumbrances affecting any property. For the purpose of this Agreement, Borrower shall be deemed to be the owner of any property which it has acquired or holds subject to a conditional sale agreement or other arrangement pursuant to which title to the Property has been retained by or vested in some other Person for security purposes.

 

Loan shall mean that convertible line of credit facility in the maximum principal amount of FIVE MILLION US DOLLARS (US$5,000,000) advanced by Lender to Borrower from time to time evidenced by the Note as further described in Article 2.

 

Loan Advance shall have the meaning set forth in Section 2.1.

 

Loan Documents refers to this Agreement, the Note and any other instrument executed and delivered to evidence the Loan, and any and all other agreements, instruments, and documents heretofore, now or hereafter, executed by Borrower and delivered to Lender in respect to the transactions contemplated by this Agreement.

 

Maturity Date shall have the meaning set forth in Section 2.1.

 

Note shall have the meaning set forth in Section 2.1.

 

Person shall mean an individual, partnership, corporation, joint stock company, firm, land trust, business trust, unincorporated organization, limited liability company, or other business entity, or a government or agency or political subdivision thereof.

 

Requirement of Law shall mean as to any Person, the articles of incorporation and bylaws or other organizational or governing documents of the Person, and any law, treaty, rule or regulation, or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding on the Person or any of its property or to which the Person or any of its property is subject.

 

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2.             The Loan .

 

2.1            Loan Terms . Subject to the terms and conditions hereof, Lender agrees to make available to Borrower an unsecured convertible line of credit (the “ Loan ”) of up to FIVE MILLION US DOLLARS (US$5,000,000) . The Loan shall be repaid or converted as set forth below on or before the date that is one year from the Effective Date (the “ Maturity Date ”). From time to time until the Maturity Date, Lender shall afford Borrower advances of funds under the Loan in amounts of not less than Five Hundred Thousand US Dollars (US$500,000.00) (each, a “ Loan Advance ” and collectively, the “ Loan Advances ”). Until the Maturity Date, Borrower may borrow under this Section 2.1; provided, that the amount of any Loan Advance to be made at any time shall not exceed the availability under the Loan at such time and no Event of Default has occurred or is continuing at such time. Each Loan Advance shall be made on notice by Borrower to Lender via electronic transmission or at the address specified herein. Any such notice must be given not less than three (3) Business Days prior to the proposed Loan Advance. Each such notice must be given in writing by Borrower. The date of disbursement of each Loan Advance shall be referred to herein as an “ Advance Date .” Borrower shall execute and deliver to Lender an amended and restated promissory note to evidence the Loan, dated as of the Effective Date and in a form satisfactory to Lender (the “ Note ”).

 

2.2            Interest . Interest on the Loan shall accrue on the Loan Advances outstanding from time to time at the rate of five percent (5%) per annum and is payable semi-annually. Interest will be calculated on the Loan Advances on the basis of a 360-day year consisting of twelve 30 day months. On or prior to the Maturity Date, all accrued but unpaid interest and outstanding principal shall be convertible in accordance with Section 2.5 below.

 

2.3            Prepayment . Prepayments of outstanding principal and accrued but unpaid interest may be made without penalty at any time prior to the Maturity Date upon receipt of written consent from Lender, provided , that any prepayment shall be accompanied by accrued but unpaid interest on the amount of such principal prepayment.

 

2.4            Term of Agreement . This Agreement shall remain in force and effect until the Maturity Date, or any extension thereof.

 

2.5            Conversion of the Loan . Subject to Section 5(b) of the Note, at any time prior to the Maturity Date, the then outstanding principal balance and accrued but unpaid interest under this Agreement and the Note shall be convertible, at the option of the Holder, into shares of Borrower’s common stock (“ Shares ”) at the average of the closing price for the Shares during the ten (10) Business Days prior to each Advance Date, less a discount of 10%, as may be adjusted for any share splits, share dividends, reclassifications and other similar events which have occurred before such conversion (the “ Conversion Price ”). Subject to Section 5(b), Upon the Maturity Date, the then outstanding principal balance and accrued but unpaid interest under this Agreement and the Note shall be automatically converted into Shares at the Conversion Price up to the Conversion Limitation (as defined in the Note) (if applicable), and the remaining outstanding principal balance and accrued but unpaid interest under the Note, if any, shall be settled in cash pursuant to Section 4(b) of the Note.

 

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2.6            Use of Proceeds . Borrower shall use the proceeds of the Loan for (i) manufacturing, marketing and sale of Celsius® products, (ii) expansion in U.S. and global markets and (iii) for working capital and other general corporate purposes.

 

2.7            Financing Transaction . Subject to Section 5(b) of the Note, if, at any time during which the Loan remains outstanding pursuant to the terms of this Agreement the Company consummates a transaction which entails a private or public financing generating gross proceeds of not less than $25.0 million, the then outstanding principal balance and accrued but unpaid interest under the Loan shall be automatically converted into Shares at the Conversion Price up to the Conversion Limitation (if applicable), and the remaining outstanding principal balance and accrued but unpaid interest under the Note, if any, shall be settled in cash pursuant to Section 4(b) of the Note.

 

2.8            Payments .

 

(a)           All payments made under the Note shall be without setoff or counterclaim, and in currency of the United States of America that at the time of payment is legal tender for the payment of public and private debt.

 

(b)           Any payments not made as and when due with respect to the Loan (whether at stated maturity, by acceleration, or otherwise) shall bear interest at the Default Rate from the date due until paid, payable on demand.

 

(c)           All sums paid to Lender by Borrower hereunder shall be paid directly to Lender in immediately available funds.

 

2.9            Limitation on Interest Charges . Lender and Borrower intend to comply strictly with applicable law regulating the maximum allowable rate or amount of interest that Lender may charge and collect on the Loans to Borrower pursuant to this Agreement. Accordingly, and notwithstanding anything in any Note or in this Agreement to the contrary, the maximum, aggregate amount of interest and other charges constituting interest under applicable law that are payable, chargeable, or receivable under any Note and this Agreement shall not exceed the maximum amount of interest now allowed by applicable law or any greater amount of interest allowed because of a future amendment to existing law. Borrower is not liable for any interest in excess of the maximum lawful amount, and any excess interest charged or collected by Lender will constitute an inadvertent mistake and, if charged but not paid, will be cancelled automatically, or, if paid, will be either refunded to Borrower or credited against the outstanding principal balance of the applicable Note, at the election of Lender.

 

3.            Conditions of Lending . In addition to any other requirements set forth in this Agreement, Lender shall not be obligated to make any advance under the Loan unless at the time thereof the following conditions shall have been met:

 

3.1            Company Proceedings . All proper company proceedings shall have been taken by Borrower to authorize this Agreement and the transactions contemplated hereby.

 

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3.2            Loan Documents . Lender shall have received executed copies of this Agreement and the Note.

 

3.3            Default . No event shall have occurred or be continuing which constitutes an Event of Default.

 

3.4            Availability Under Loan . With respect to a Loan Advance, there must be sufficient availability of credit under the Loan for such Loan Advance to be made.

 

3.5            Additional Documents . Lender shall have received such additional legal certificates, proceedings, instruments, and other documents as Lender or its counsel may reasonably request.

 

4.             Representations, Warranties, and General Covenants . Borrower hereby represents, warrants, and covenants to Lender that:

 

4.1            Organization and Qualification of Borrower . Borrower is a corporation duly organized, validly existing and in good standing under the laws of its state of incorporation or formation; has the power to own its properties and to carry on its business as now being conducted; and is duly qualified to do business and is in good standing in every jurisdiction in which the character of the properties owned by it or in which the transaction of its business makes its qualification necessary.

 

4.2            Corporate Power and Authorization; Compliance with Law . Borrower has full power and authority to enter into this Agreement, to borrow hereunder, to execute and deliver the Note and any other Loan Documents, and to incur the obligations provided for herein, all of which have been authorized by all proper and necessary corporate action. Borrower is in material compliance with all Requirements of Law applicable to it and possesses all governmental franchises, licenses, and permits that are necessary to own or lease its assets and to carry on its business as now conducted.

 

4.3            Enforceability; No Legal Bar . This Agreement has been, and each other Loan Document to which it is a party will be, duly executed and delivered to Lender on behalf of Borrower. This Agreement and each of the other Loan Documents constitute, and the Note when executed and delivered for value received will constitute, a valid and legally binding obligation of Borrower enforceable in accordance with their respective terms. The execution, delivery, and performance by Borrower of this Agreement and the other Loan Documents to which it is a party, Borrower’s borrowings pursuant to this Agreement, and use of the loan proceeds, will not violate any Requirement of Law applicable to Borrower or constitute a breach or violation of, a default under, or require any consent under, any of its Contractual Obligations, and will not result in a breach or violation of, or require the creation or imposition of any Lien on any of its properties or revenues pursuant to any Requirement of Law or Contractual Obligation.

 

4.4            Taxes . Borrower has filed all federal, state, and local tax returns which are required to be filed and has paid, or made adequate provision for the payment of, all taxes which have or may become due pursuant to said returns. Borrower has paid all withholding, FICA and other payments required by federal, state or local governments with respect to any wages paid to employees.

 

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4.5            Full Disclosure . All information furnished by Borrower to Lender concerning Borrower, its financial condition, or otherwise for the purpose of obtaining credit or an extension of credit, is, or will be at the time the same is furnished, accurate and correct in all material respects and complete insofar as completeness may be necessary to give Lender a true and accurate knowledge of the subject matter. The books of account, minute books, and stock record books of Borrower are complete and correct and have been maintained in accordance with good business practices, and there have been no transactions adversely affecting the business of Borrower that should have been set forth therein and have not been so set forth.

 

4.6            Representations True . No representation or warranty by Borrower contained herein or in any certificate or other document furnished by Borrower pursuant hereto contains any untrue statement of material fact or omits to state a material fact necessary to make such representation or warranty not misleading in light of the circumstances under which it was made.

 

4.7            Compliance with Loan Documents . Borrower acknowledges and agrees that its timely and complete compliance with all of the terms and conditions contained in the documents evidencing and securing the loan obligation is material consideration for the loan.

 

5.             Affirmative Covenants . Borrower agrees and covenants that until the Maturity Date, Borrower shall:

 

5.1            Insurance . Maintain insurance, including but not limited to casualty and business interruption in such amounts and against such risks as is customarily maintained in similar businesses operating in the same vicinity.

 

5.2            Company Existence ; Qualification . Maintain its company existence and, in each jurisdiction in which the character of the property owned by it or in which the transaction of its business makes its qualification necessary, maintain good standing.

 

5.3            Taxes . During its fiscal year, accrue all current tax liabilities of all kinds, all required withholding of income taxes of employees and all required payments to employee benefit plans, and pay the same when they become due.

 

5.4            Compliance with Laws . Comply in all material respects with all Requirements of Law, and pay all taxes, assessments, charges, claims for labor, supplies, rent, and other obligations which, if unpaid, might give rise to a Lien against property of Borrower, except claims being contested in good faith by appropriate proceedings. Specifically, Borrower shall pay when due all taxes and assessments upon this Agreement, the Note, or any Loan Document, including, without limitation, any stamp taxes or intangibles taxes imposed by virtue of the transactions outlined herein.

 

5.5            Conduct of Business . Conduct its business as now conducted and do all things necessary to preserve, renew, and keep in full force and effect its rights, patents, permits, licenses, franchises, and trade names necessary to continue its business.

 

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5.6            Maintenance of Properties . Keep its properties in good repair, working order and condition, reasonable wear and tear excepted, and from time to time make all needed and proper repairs, renewals, replacements, additions, and improvements thereto and comply with the provisions of all leases to which it is a party or under which it occupies property so as to prevent any loss or forfeiture thereof or thereunder.

 

6.             Negative Covenants . Until the Maturity Date, without the prior written consent of Lender, Borrower shall not:

 

6.1            Liquidation, Merger or Consolidation . Liquidate, wind up, or dissolve itself (or suffer any liquidation or dissolution), or enter into any merger or consolidation, or acquire all or substantially all of the assets of any Person without the prior written consent of Lender; or sell, lease, transfer or otherwise dispose of any of its assets, except sales in the ordinary course of its business.

 

6.2            Change in Business, Management or Ownership . Enter into any business which is substantially different from the business or businesses in which it is presently engaged or substantially change its executive management or majority ownership without the prior written consent of the Lender.

 

7.             Events of Default . The occurrence of any one or more of the following events shall constitute an Event of Default (unless and except to the extent that the same is cured within the applicable cure period, if any, or, at the sole discretion of Lender, at any time thereafter):

 

7.1            Payment Default . If Borrower shall fail to make any payment of any installment of principal or interest on the Notes within five (5) Business Days of the date due and payable; or

 

7.2            Other Defaults . If, after twenty (20) Business Days’ written notice from Lender, Borrower fails to perform, keep or observe any other covenant, agreement or provision of the Note or of this Agreement or if there is a default in any Loan Document or the Note; or

 

7.3            Representations False . If any warranty, representation, or other statement made or furnished to Lender by or on behalf of Borrower or in any of the Loan Documents proves to be false or misleading in any material respect when made or furnished and is not cured after twenty (20) Business Days’ written notice from Lender; or

 

7.4            Insolvency . If Borrower shall be involved in financial difficulties as evidenced by:

 

(a)           its commencing a voluntary case under the United States Bankruptcy Code or any similar law regarding debtor’s rights and remedies or an admission seeking the relief therein provided;

 

(b)           its making a general assignment for the benefit of its creditors; or

 

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(c)           its voluntarily liquidating or terminating operations or applying for or consenting to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of such Person or of all or of a substantial part of its assets;

 

7.5            Delisting . The Shares shall not be eligible for listing or quotation for trading on the Nasdaq Global Market or the Nasdaq Capital Market (as applicable) for a period of ten (10) consecutive trading days, and shall not be eligible to resume listing or quotation for trading thereon within thirty (30) trading days

 

7.6            Stop Trade . A stop trade order imposed judicially or by the U.S. Securities and Exchange Commission or by the OTC Bulletin Board or other exchange trading suspension with respect to Shares and such stop order not being rectified and resumed within thirty (30) trading days;

 

7.7            Cross Default . A default by the Company or any of its subsidiaries under any loan, mortgage, indenture, notes, debentures or any other instrument evidencing any indebtedness of the Company or any of its subsidiaries in excess of $1,000,000, that results in acceleration of the maturity of such debt or liability, or failure to pay any such debt when due; or

  

7.8            Inability to Convert . The Company’s notice to the Holder, including by way of public announcement, at any time, of its inability to comply or its intention not to comply with proper requests for conversion of this Note into Shares.

 

On the occurrence of any Event of Default, Lender may at its option proceed to protect and enforce its rights by suit in equity, action at law and/or the appropriate proceeding either for specific performance of any covenant or condition contained in the Notes or in any Loan Document, and/or declare the unpaid balance of the Loan and Note together with all accrued interest to be forthwith due and payable in, at Lender’s option, in cash and/or Shares (at the Conversion Price), and thereupon such balance shall become so due and payable without presentation, protest or further demand or notice of any kind, all of which are hereby expressly waived. The rights and remedies provided by this Note shall be cumulative, and shall be in addition to, and not exclusive of, any other rights and remedies available at law or in equity. Each request for a Loan Advance made by Borrower pursuant to this Agreement or any of the other Loan Documents shall constitute an automatic representation and warranty by Borrower to Lender that there does not then exist any Event of Default.

 

8.             Miscellaneous.

 

8.1            Actions Not Constituting a Waiver . Neither (i) the failure at any time or times hereafter to require strict performance by Borrower of any of its provisions, warranties, terms and conditions contained in this Agreement or any other agreement, document or instrument now or hereafter executed by Borrower, and delivered to Lender, nor (ii) the failure of Lender to take action or to exercise its remedies with respect to any default or Event of Default hereunder, nor (iii) any delay or omission of Lender to exercise any right, remedy, power, or privilege hereunder after the occurrence of a default or Event of Default, shall act to waive, affect, or diminish any right of Lender to demand strict compliance with the terms of this Agreement or to exercise remedies with respect to any default or Event of Default.

 

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8.2            Headings; Exhibits . Except for the definitions set forth in this Agreement, the headings of the articles, sections, paragraphs and subdivisions of this Agreement are for convenience of reference only, are not to be considered a pan hereof, and shall not limit or otherwise affect any of the terms hereof. Unless otherwise expressly indicated, all references in this Agreement to a section or an exhibit are to a section or an exhibit of this Agreement. All exhibits referred to in this Agreement are an integral part of it and are incorporated by reference in it.

 

8.3            Notices . Any notice or demand which by any provision of this Agreement is required or provided to be given shall be deemed to have been sufficiently given or served for all purposes by being delivered in person or by electronic transmission to the party to whom the notice or demand is directed or by being sent by overnight courier or first class mail, postage prepaid, to the following address: If to Borrower, 2424 North Federal Highway, Suite 208, Boca Raton Florida 33431 or if any other address shall at any time be designated by Borrower in writing to the holders of record of the Note at the time of such designation to such other address; and if to Lender, 3299 NW 2 nd Ave, Boca Raton, Florida 33431, or if any other address shall at any time be designated in writing to Borrower, to such other address.

 

8.4            Benefits . All of the terms and provisions of this Agreement shall bind and inure to the benefit of the parties hereto and their respective successors and assigns. No right or obligation hereunder shall be assigned by any party without the express prior written consent of the other party, which consent will not be unreasonably withheld. Neither this Agreement nor any term hereof shall be amended, modified, waived or varied except by an instrument in writing signed by the Lender and Borrower.

 

8.5            Governing Law and Venue . This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, without regard to its conflicts of laws provisions. Any legal action regarding this Agreement shall be brought in the courts located in Palm Beach County, Florida.

 

8.6            Counterparts; Severability . This Agreement may be executed in any number of counterparts, each of which, when executed and delivered, shall be an original, but such counterparts shall together constitute one and the same instrument. Any provision in this Agreement which may be unenforceable or invalid under any law shall be ineffective to the extent of such unenforceability or invalidity without affecting the enforceability or validity of any other provisions hereof.

 

8.7            Limitation of Grant . Nothing in this Agreement, whether express or implied, is intended or should be construed to confer upon, or to grant to, any person, except Lender and Borrower, any right, remedy, or claim under or because of either this Agreement or any provision of it.

 

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8.8            Confidentiality . Lender shall maintain the confidentiality of trade secret information furnished to Lender regarding Borrower’s business operations, except to the extent that disclosure of this information is required by law or by a court of competent jurisdiction.

 

8.9            Waiver of Trial By Jury . The Borrower and the Lender knowingly, voluntarily and intentionally waive the right any of them may have to a trial by jury in respect of any litigation based hereon, or arising out of, under or in connection with the Loan Documents and any agreement contemplated to be executed in conjunction therewith, or any course of conduct, course of dealing, statements (whether verbal or written) or actions of any party. This provision is a material inducement for the Lender entering into the loan evidenced by the Loan Documents.

 

8.10            Currency . All references to “$” or dollars in this Note shall refer to the currency of the United States.

 

8.11            NOTICE OF FINAL AGREEMENT . THIS WRITTEN AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.

 

[Signature Page Follows]

 

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IN WITNESS WHEREOF , each of Borrower and Lender has caused this Agreement to be executed by its duly authorized officer. 

     
  BORROWER :
     
  CELSIUS HOLDINGS, INC.
     
  By: /s/ John Fieldly
  Name:John Fieldly
  Title:Chief Executive Officer
     
  LENDER :
     
  CD FINANCIAL, LLC
     
  By: /s/ William H. Milmoe
  Name:William H. Milmoe
  Title:Manager

 

[Signature Page to the Amended and Restated Convertible Loan Agreement by and between
Celsius Holdings, Inc. and CD Financial, LLC]

 

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Exhibit 10.4

 

THIS CONVERTIBLE PROMISSORY NOTE (THE “NOTE”) AND THE SECURITIES ISSUABLE UPON CONVERSION HEREOF HAVE NOT BEEN REGISTERED UNDER THE APPLICABLE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR UNDER THE SECURITIES LAWS OF ANY STATE (“BLUE SKY LAWS”). THIS NOTE HAS BEEN ACQUIRED FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO THE DISTRIBUTION THEREOF. THIS NOTE AND THE SECURITIES ISSUABLE UPON CONVERSION HEREOF MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND REGISTRATION OR QUALIFICATION UNDER APPLICABLE BLUE SKY LAWS OR AN OPINION OF COUNSEL THAT SUCH PROPOSED TRANSFER DOES NOT VIOLATE THE SECURITIES ACT AND APPLICABLE BLUE SKY LAWS.

 

CELSIUS HOLDINGS, INC.

CONVERTIBLE PROMISSORY NOTE

 

$3,000,000 or principal amount outstanding Dated Effective as of December 12, 2018

 

FOR VALUE RECEIVED , the undersigned, CELSIUS HOLDINGS, INC., a Nevada corporation (the “ Company ”), hereby promises to pay to the order of CHARMNEW LIMITED (the “ Holder ”), the principal amount of up to THREE MILLION DOLLARS ($3,000,000), or so much of such principal amount as shall be outstanding from time to time under this Note, together with accrued and unpaid interest thereon as described herein.

 

1.               Definitions . In addition to the terms defined elsewhere in this Note, the following terms have the meanings indicated:

 

Affiliate ” means, with respect to any Person that is not an individual, another other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with such Person. The Parties acknowledge and agree that Charmnew Limited shall not be deemed an Affiliate of Grieg International Limited, and vice versa. 

 

Business Day ” means any day other than a Saturday, Sunday or other day on which banks in New York, New York are generally not open for business.

 

Conversion Date ” means the date a Conversion Notice is delivered to the Company.

 

Conversion Notice ” means a written notice in the form attached as Exhibit A hereto.

 

Conversion Price ” means the average of the closing price for the Shares during the ten (10) Business Days prior to each Advance Date, less a discount of 10%, as may be adjusted from time to time as provided herein.

 

Loan Agreement ” means that certain Convertible Loan Agreement dated as of December 12, 2018 by and between the Company and the Holder.

 

Person ” means any individual or entity.

 

 

 

 

Shares ” means shares of the Company’s common stock.

 

2.               Advances .

 

(a)            The Holder may make multiple advances under this Note in amounts of not less than One Million US Dollars (US$1,000,000). Amounts outstanding hereunder from time to time shall be as set forth in the records of the Holder, which shall be final and determinative absent error upon review by the Company. Attached hereto as Exhibit A is a schedule of advances, on which Holder shall record each advance and the principal amount thereof.

 

(b)            The Company shall notify the Holder in writing when it wishes to draw upon this Note, which notice shall specify the date of the advance and the principal amount thereof. So long as no Event of Default has occurred or is continuing at such time, the Holder shall advance the requested funds within three (3) Business Days of the date specified in such notice.

 

3.               Interest . The unpaid principal balance from time to time outstanding hereunder shall bear interest from the date disbursed until paid in full at a fixed rate of five percent (5%) per annum. Any amount of principal of or interest on this Note which is not paid when due shall bear interest at the Default Rate (hereinafter defined) from the due date thereof until the same is paid. “ Default Rate ” means a rate of eighteen (18%) per annum, or such lesser rate equal to the highest rate permitted by applicable law. Interest will be calculated on this Note from and including its original issuance date on the basis of a 360-day year consisting of twelve 30 day months.

 

4.               Payment Terms .

 

(a)            Interest on this Note will accrue and will be payable semi-annually until the earliest to occur of (i) the Maturity Date (as hereinafter defined), (ii) conversion of the Note into Shares pursuant to Section 5 below or (iii) the Note otherwise becoming due and payable.

 

(b)            Subject to earlier payment or conversion as provided for elsewhere in this Note, the entire unpaid principal amount and all unpaid accrued interest under this Note shall be due and payable to Holder on the date that is two years from the Effective Date (the “ Maturity Date ”). Principal and interest due hereunder shall be paid in lawful money of the United States of America in immediately available federal funds or the equivalent at the address of the Holder set forth in Section 8 below or at such other address as the Holder may designate. All payments made hereunder shall first be applied to interest then due and payable and any excess payment shall then be applied to reduce the principal amount.

 

(c)            Upon payment in full or conversion to Shares of all principal and interest payable hereunder, the Holder shall surrender this Note to the Company for cancellation.

 

(d)            The Note outstanding principal and unpaid accrued interest thereon may be prepaid by the Company only upon receipt of written consent from Holder.

 

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(e)            Subject to Section 5(b), if, at any time during which this Note remains outstanding the Company consummates a transaction which entails a private or public financing generating gross proceeds of not less than $25.0 million, the then outstanding principal balance and accrued but unpaid interest under the Note shall be automatically converted into Shares at the Conversion Price up to the Conversion Limitation (if applicable), and the remaining outstanding principal balance and accrued but unpaid interest under the Note, if any, shall be settled in cash pursuant to Section 4(b).

 

(f)             Any and all payments by the Company to or for the account of the Holder under this Note shall be made free and clear of and without deduction for any taxes, except as required by applicable law.  If the Company shall be required by any applicable law to deduct any taxes from or in respect of any sum payable under this Note to the Holder, (i) the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this ‎ provision ), the Holder receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Company shall make such deductions, (iii) the Company shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law, and (iv) as promptly as practicable after the date of such payment, the Company shall furnish to the Holder the original or a certified copy of a receipt evidencing payment thereof.

 

5.               Conversion into Shares; Conversion Limitation; Reservation .

 

(a)            At any time prior to the Maturity Date, the Holder may, at its option, convert the entire principal amount of and all accrued but unpaid interest on this Note into shares of Company’s common stock at the applicable Conversion Price, subject Section 5(b) below and subject to any applicable adjustments as set forth in Section 7 below. The Holder shall effect a conversion by delivering to the Company a conversion notice in substantially the form attached hereto as Exhibit B (the “Conversion Notice” ). Subject to Section 5(b), upon the Maturity Date, the then outstanding principal balance and accrued but unpaid interest under this Note shall be automatically converted into Shares at the Conversion Price up to the Conversion Limitation (if applicable), and the remaining outstanding principal balance and accrued but unpaid interest under the Note, if any, shall be settled in cash pursuant to Section 4(b).

 

(b)            Notwithstanding anything to the contrary in this Note, the Holder shall not convert, and the Company shall not issue any Shares upon any attempted conversion or exercise of, any portion of this Note, to the extent that after giving effect to such conversion, the Holder (and its Affiliates) would have acquired, through the conversion of this Note or otherwise, beneficial ownership of a number of Shares in excess of 19.99% of the aggregate number of Shares outstanding immediately after giving effect to such conversion or exercise (the “ Conversion Limitation ”). For purposes of the foregoing, the number of Shares beneficially owned by the Holder and its Affiliates shall include the number of Shares issuable upon conversion of this Note with respect to which such determination is being made, and shall include additional shares of Common Stock issued to the Holder and its Affiliates after the date hereof, but shall exclude Shares which would be issuable upon (A) conversion of the remaining, nonconverted portion of any Note beneficially owned by the Holder or any of its Affiliates and (B) exercise or conversion of the unexercised or nonconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its Affiliates. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities and Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder from time to time in effect, the “ Exchange Act ”). By not less than 65 days’ prior written notice to the Company, the Holder may, at its election, (i) increase or decrease the Conversion Limitation to any other percentage not in excess of 19.99% specified in such notice, and the Conversion Limitation shall continue to apply until such 65th day (or such later date, as determined by the Investor, as may be specified in such notice); or (ii) waive in whole or in part permanently or temporarily at any time the provisions of this Section and this Section shall not be waived until such 65th day (or such later date, as determined by the Holder, as may be specified in such notice).

 

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(c)            The Company covenants that it will at all times reserve and keep available out of its authorized and unissued shares of common stock for the sole purpose of issuance upon conversion of this Note, free from all mortgages, charges, pledges, liens, hypothecations or other security interests, preemptive rights or any other actual contingent purchase rights of persons other than the Holder, not less than the aggregate number of shares of the Common Stock as shall be issuable (taking into account the adjustments and restrictions contained in this Note) upon the conversion of this Note.  The Company covenants that all shares of common stock that shall be so issuable shall, upon issue, be duly authorized, validly issued, fully paid and nonassessable.  The Company agrees that its issuance of this Note shall constitute full authority to its officers, agents, and transfer agents who are charged with the duty of executing and issuing stock certificates to execute and issue the necessary certificates for shares of Common Stock upon the conversion of this Note. The issuance of certificates for shares of the Common Stock on conversion of this Note shall be made without charge to the Holder hereof for any documentary, stamp or similar taxes that may be payable in respect of the issue or delivery of such certificates.

 

6.               Mechanics of Conversion .

 

(a)            Upon receipt of a Conversion Notice, the Company shall, as soon as practicable (but in no event later than five (5) Business Days after the Conversion Date) issue or cause to be issued and cause to be delivered to the Holder and in such name or names as the Holder may designate a certificate for the Shares issuable upon such conversion, with such restrictive legends as deemed necessary by the Company. The Holder, or any Person so designated by the Holder to receive Shares, shall be deemed to have become holder of record of such Shares as of the Conversion Date.

 

(b)            The Holder shall be required to deliver the original Note to the Company in order to effect a conversion hereunder.

 

(c)            The Company’s obligations to issue and deliver Shares upon conversion of this Note in accordance with the terms hereof are absolute and unconditional, irrespective of any action or inaction by the Holder to enforce the same, any waiver or consent with respect to any provision hereof, the recovery of any judgment against any Person or any action to enforce the same, or any set-off, counterclaim, recoupment, limitation or termination, or any breach or alleged breach by the Holder or any other Person of any obligation to the Company or any violation or alleged violation of law by the Holder or any other Person, and irrespective of any other circumstance which might otherwise limit such obligation of the Company to the Holder in connection with the issuance of such Shares.

 

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(d)            No Fractional Shares . The Company shall not issue or cause to be issued fractional Shares on conversion of this Note. If any fraction of a Share would, except for the provisions of this Section 6(d) , be issuable upon conversion of this Note, the number of Shares to be issued will be rounded up to the nearest whole share.

 

7.               Certain Adjustments . The Conversion Price is subject to adjustment from time to time as set forth in this Section 7 .

 

(a)            Stock Dividends and Splits . If the Company, at any time while this Note is outstanding, (i) pays a stock dividend on its Shares or otherwise makes a distribution on any class of capital stock that is payable in Shares, (ii) subdivides outstanding Shares into a larger number of shares, or (iii) combines outstanding Shares into a smaller number of shares, then in each such case the Conversion Price shall be appropriately and equitably adjusted to reflect such event. Any adjustment made pursuant to Section 7(a)(i) shall become effective immediately after the record date for the determination of shareholders entitled to receive such dividend or distribution, and any adjustment pursuant to Section 7(a)(ii) or Section 7(a)(iii) shall become effective immediately after the effective date of such subdivision or combination.

 

(b)           Adjustment for Other Dividends and Distributions . If the Company shall at any time or from time to time after the date hereof, make or issue or set a record date for the determination of holders of Shares entitled to receive a dividend or other distribution payable in other than Shares, then, and in each event, an appropriate revision to the applicable Conversion Price shall be made and provision shall be made (by adjustments of the Conversion Price or otherwise) so that the holders of this Note shall receive upon conversions thereof, in addition to the number of Shares receivable thereon, the number of securities of the Company or other issuer (as applicable) which they would have received had this Note been converted into Shares on the date of such event and had thereafter, during the period from the date of such event to and including the Conversion Date, retained such securities (together with any distributions payable thereon during such period), giving application to all adjustments called for during such period under this Note, provided , however , that if such record date shall have been fixed and such dividend is not fully paid or if such distribution is not fully made on the date fixed therefor, the Conversion Price shall be adjusted pursuant to this Section 7(c) as of the time of actual payment of such dividends or distributions.

 

(c)            Adjustments for Reclassification, Exchange or Substitution . If the Shares issuable upon conversion of this Note at any time or from time to time after the date hereof shall be changed to the same or different number of shares of any class or classes of stock, whether by reclassification, exchange, substitution or otherwise (other than by way of a stock split or combination of shares or stock dividends provided for in this Section 7 ), then, and in each event, an appropriate revision to the Conversion Price shall be made and provisions shall be made (by adjustments of the Conversion Price or otherwise) so that the Holder shall have the right thereafter to convert this Note into the kind and amount of shares of stock and other securities receivable upon reclassification, exchange, substitution or other change, by holders of the number of Shares into which such Note might have been converted immediately prior to such reclassification, exchange, substitution or other change, all subject to further adjustment as provided herein.

 

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(d)            Merger, Sale of Assets, etc .  If (i) the Company effects any merger or consolidation of the Company with or into another entity, (ii) the Company effects any sale of all or substantially all of its assets in one or a series of related transactions, (iii) any tender offer or exchange offer (whether by the Company or another entity) is completed pursuant to which holders of Shares are permitted to tender or exchange their shares for other securities, cash or property, (iv) the Company consummates a stock purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with one or more persons or entities whereby such other persons or entities (such other persons or entities, the “ Purchasers ”) acquire more than 50% of the outstanding Shares (not including any shares of Common Stock held by the Purchasers or such other persons or entities associated or affiliated with the Purchasers), or (v) any “person” or “group” (as these terms are used for purposes of Sections 13(d) and 14(d) of the 1934 Act) is or shall become the “beneficial owner” (as defined in Rule 13d-3 under the 1934 Act), directly or indirectly, of 50% of the aggregate Shares (in any such case, a “ Fundamental Transaction ”), this Note, as to the principal and accrued and unpaid interest thereon, shall thereafter, at the Holder’s election, be deemed to evidence the right to convert into such number and kind of shares or other securities and property as would have been issuable or distributable on account of such Fundamental Transaction, upon or with respect to the securities subject to the conversion right immediately prior to such Fundamental Transaction.  The foregoing provision shall similarly apply to successive Fundamental Transactions of a similar nature by any such successor or purchaser. Without limiting the generality of the foregoing, the provisions of this Section shall apply to such securities of such successor or purchaser after any such Fundamental Transaction .

 

(e)            Calculations . All calculations under this Section 7 shall be made to the nearest cent or the nearest 1/100th of a share, as applicable. The number of Shares outstanding at any given time shall not include shares owned or held by or for the account of the Company.

 

(f)             Notice of Adjustments . Upon the occurrence of each adjustment pursuant to this Section 7 , the Company, at its expense, will promptly compute such adjustment in accordance with the terms hereof and prepare and deliver to the Holder a certificate describing in reasonable detail such adjustment and the transactions giving rise thereto, including all facts upon which such adjustment is based.

 

(g)            No Impairment . The Company shall not, by amendment of its Articles of Incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Company, but will at all times in good faith, assist in the carrying out of all the provisions of this Section 7 and in the taking of all such action as may be necessary or appropriate in order to protect the Conversion Rights of the Holder against impairment.

 

(h)            Notice of Corporate Events . If the Company: (i) declares a dividend or any other distribution of cash, securities or other property in respect of its Shares, including without limitation any granting of rights or warrants to subscribe for or purchase any capital stock of the Company; (ii) authorizes or approves, enters into any agreement contemplating, or solicits shareholder approval for, any merger, consolidation or similar transaction in which the Company is not the surviving entity; or (iii) authorizes the voluntary dissolution, liquidation or winding up of the affairs of the Company, then the Company shall deliver to the Holder a notice describing the material terms and conditions of such transaction, at least ten (10) Business Days prior to the applicable record or effective date on which a Person would need to hold Shares in order to participate in or vote with respect to such transaction, and the Company will take all steps reasonably necessary in order to insure that the Holder is given the practical opportunity to convert this Note prior to such time so as to participate in or vote with respect to such transaction; provided , however , that the failure to deliver such notice or any defect therein shall not affect the validity of the corporate action required to be described in such notice.

 

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8.               Notices . All notices and other communications required or permitted hereunder to be given to a party to this Note shall be in writing and shall be faxed, mailed by registered or certified mail postage prepaid, delivered by a national overnight delivery service, or otherwise delivered by hand, electronically (including by email) or by messenger, addressed to such party’s address as set forth below:

 

  if to the Company: Celsius Holdings, Inc.
    2424 N Federal Highway
    Suite #208
    Boca Raton, FL 33341
    Email: jfieldly@celsius.com
     
  if to the Holder: Charmnew Limited
    c/o 7 th Floor, Cheung Kong Center
    2 Queen’s Road Central, Central
    Hong Kong
    Attn: Ezra Pau / Eirene Yeung

 

or such other address with respect to a party as such party shall notify each other party in writing as above provided. Any notice sent in accordance with this Section 8 shall be effective upon the earlier of: (i) if mailed, five (5) Business Days after mailing; (ii) if sent by messenger, upon delivery; (iii) if sent by a nationally recognized overnight delivery service, one (1) Business Day after having been dispatched; or (iv) if sent by electronic mail, upon transmission and notice by telephone of such transmission or (if transmitted and received on a non-Business Day) on the first Business Day following transmission and notice by telephone; and (vi) upon the actual receipt thereof.

 

9.               Default and Remedies .

 

(a)             An “ Event of Default ” under this Note shall mean the occurrence of any of the following events:

 

(i)              If the Company shall fail to make within five (5) Business Days when due the payment of the principal amount or interest as required by this Note, whether at the due date thereof or by acceleration thereof or otherwise;

 

(ii)             The Company shall fail to observe or perform any covenant or agreement contained in this Note or the Loan Agreement which failure is not cured, if possible to cure, within twenty (20) Business Days after notice to the Company of such default sent by the Holder or by any other Holder;

 

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(iii)            If any warranty, representation, or other statement made or furnished to Holder by or on behalf of Company or in any of the Loan Documents proves to be false or misleading in any material respect when made or furnished and is not cured after twenty (20) Business Days’ written notice from the Holder;

 

(iv)            If the Company shall be involved in financial difficulties as evidenced by:

 

(a)                            its commencing a voluntary case under the United States Bankruptcy Code or any similar law regarding debtor’s rights and remedies or an admission seeking the relief therein provided;

 

(b)                            its making a general assignment for the benefit of its creditors; or

 

(c)                            its voluntarily liquidating or terminating operations or applying for or consenting to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of such Person or of all or of a substantial part of its assets;

 

(v)             The Shares shall not be eligible for listing or quotation for trading on the Nasdaq Global Market or the Nasdaq Capital Market (as applicable) for a period of ten (10) consecutive trading days, and shall not be eligible to resume listing or quotation for trading thereon within thirty (30) trading days;

 

(vi)           A stop trade order imposed judicially or by the U.S. Securities and Exchange Commission or by the OTC Bulletin Board or other exchange trading suspension with respect to Shares and such stop order not being rectified and resumed within thirty (30) trading days;

 

(vii)           A default by the Company or any of its subsidiaries under any loan, mortgage, indenture, notes, debentures or any other instrument evidencing any indebtedness of the Company or any of its subsidiaries in excess of $1,000,000, that results in acceleration of the maturity of such debt or liability, or failure to pay any such debt when due ; or

 

(viii)          The Company’s notice to the Holder, including by way of public announcement, at any time, of its inability to comply or its intention not to comply with proper requests for conversion of this Note into Shares.

 

(b)             Upon and during the continuation of an Event of Default, the Holder may declare the outstanding principal amount, and all accrued and unpaid interest on the principal amount, immediately due and payable in, at Holder’s option, in cash and/or Shares (at the Conversion Price) and thereupon such balance shall become so due and payable without presentation, protest or further demand or notice of any kind, all of which are hereby expressly waived. The rights and remedies provided by this Note shall be cumulative, and shall be in addition to, and not exclusive of, any other rights and remedies available at law or in equity. Each request for a Loan Advance made by Borrower pursuant to this Agreement or any of the other Loan Documents shall constitute an automatic representation and warranty by Borrower to Lender that there does not then exist any Event of Default.

 

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10.             Assignability . Neither party may assign this Note without the prior consent of the other party. No such assignment shall constitute a novation or release of the Company of the obligations hereof or from any liability to the Holder.

 

11.             Usury Laws . It is the intention of the Company and the Holder to conform strictly to all applicable usury laws now or hereafter in force, and any interest payable under this Note shall be subject to reduction to an amount that is the maximum legal amount allowed under the applicable usury laws as now or hereafter construed by the courts having jurisdiction over such matters. The aggregate of all interest (whether designated as interest, service charges, points or otherwise) contracted for, chargeable, or receivable under this Note shall under no circumstances exceed the maximum legal rate upon the principal amount remaining unpaid from time to time. If such interest does exceed the maximum legal rate, it shall be deemed a mistake and such excess shall be canceled automatically and, if theretofore paid, rebated to the Company or credited on the principal amount, or if this Note has been repaid, then such excess shall be rebated to the Company.

 

12.             Transfer Register .  In the event of a transfer, the Company shall maintain a register (the “ Register ”) for the registration or transfer of this Note, and shall enter the names and addresses of the registered holders of this Note, the transfers of this Note and the names and addresses of the transferees of this Note.  The Company shall treat any registered holder as the absolute owner of this Note held by such holder, as indicated in the Register, for the purpose of receiving payment of all amounts payable with respect to this Note and for all other purposes.  The Note and the right, title, and interest of any person in and to such Note shall be transferable only upon notation of such transfer in the Register.  Solely for purposes of this Section 7.4 and for tax purposes only, the keeper of the Register, if it is not the Company, shall be the Company’s agent for purposes of maintaining the Register.  This Section 7.4 shall be construed so that this Note is at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the United States Internal Revenue Code (the “ Code ”) and any related regulations (and any other relevant or successor provisions of the Code or such regulations).

 

13.             Miscellaneous .

 

(a)            Any amendment hereto or waiver of any provision hereof must be in writing and signed by both the Company and the Holder.

 

(b)            Wherever in this Note reference is made to the Company or the Holder, such reference shall be deemed to include, as applicable, a reference to their respective permitted successors and permitted assigns, and the provisions of this Note shall be binding upon and shall inure to the benefit of such successors and permitted assigns.

 

(c)            Except as otherwise specifically provided for herein, this Note shall in all respects be governed by and construed in accordance with the laws of the State of Florida without regard to conflicts of law principles of any jurisdiction to the contrary.

 

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(d)            The captions of the Sections of this Note are inserted solely for ease of reference and shall not be considered in the interpretation or construction of this Note.

 

(e)            The Holder, by acceptance of this Note, hereby represents and warrants that this Note has been acquired by the Holder for investment only and not for resale or distribution hereof. The Holder, by acceptance of this Note, further understands, covenants and agrees that the Company is under no obligation and has made no commitment to provide for registration of this Note or Shares issuable upon conversion of this Note under the Securities Act or applicable state securities laws.

 

(f)             All references to “$” or dollars in this Note shall refer to the currency of the United States.

 

(g)            The Company waives presentment, notice and demand, notice of protest, notice of demand and dishonor, and notice of nonpayment of this Note.

 

(h)            Any legal action regarding this Note shall be brought in the courts located in Palm Beach County, Florida.

 

(i)             In the event that any provision of this Note is invalid or unenforceable under any applicable statute or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform with such statute or rule of law. Any such provision which may prove invalid or unenforceable under any law shall not affect the validity or enforceability of any other provision of this Note. Nothing contained herein shall be deemed or operate to preclude the Holder from bringing suit or taking other legal action against the Company in any other jurisdiction to collect on the Company’s obligations to the Holder, or to enforce a judgment or other court ruling in favor of the Holder.

 

(j)             No delay in the exercise of any right or remedy of any party hereto shall operate as a waiver thereof, and no single or partial exercise of any such right or remedy shall preclude other or future exercise thereof or the exercise of any other right or remedy.

 

(k)            It is expressly understood and agreed by the parties hereto that if it is necessary to enforce payment of this Note through the engagement or efforts of an attorney or by suit, the Company shall pay reasonable attorneys’ fees, expenses of counsel, and other costs of collection actually incurred by the Holder.

 

[Signature Page Follows]

 

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IN WITNESS WHEREOF, the Company has executed, acknowledged and delivered this Note as of the day and year first above written.

 

  CELSIUS HOLDINGS, INC.
     
  By: /s/ John Fieldly
    Name: John Fieldly
    Title: CEO

  

ACCEPTED AND ACKNOWLEDGED: 

 

CHARMNEW LIMITED 

 

By: /s/ Pau Yee Wan, Ezra  
Name: Pau Yee Wan, Ezra  
Title: Director  

 

[Signature Page to the Convertible Promissory Note by and between
Celsius Holdings, Inc. and Charmnew Limited]

 

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Exhibit A

 

SCHEDULE OF ADVANCES 

 

Date Principal Amount
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   

 

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Exhibit B

 

FORM OF CONVERSION NOTICE 

 

(To be executed by the Holder in order to convert Note)

 

The undersigned hereby elects to convert the specified principal and interest amount of the Convertible Note (the “ Note ”) into shares of common stock (“ Shares ”), of CELSIUS HOLDINGS, INC ., a Nevada corporation, according to the conditions hereof, as of the date written below.  

     
  Date to Effect Conversion
   
  Principal Amount Owned Prior to Conversion
   
  Principal and Interest Amount of Note to be Converted
   
  Number of Shares to be Issued
   
  Applicable Conversion Price
   
  Name of Holder
   
  By:  
    Name:
    Title:

 

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Exhibit 10.5 

 

THIS CONVERTIBLE PROMISSORY NOTE (THE “NOTE”) AND THE SECURITIES ISSUABLE UPON CONVERSION HEREOF HAVE NOT BEEN REGISTERED UNDER THE APPLICABLE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR UNDER THE SECURITIES LAWS OF ANY STATE (“BLUE SKY LAWS”). THIS NOTE HAS BEEN ACQUIRED FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO THE DISTRIBUTION THEREOF. THIS NOTE AND THE SECURITIES ISSUABLE UPON CONVERSION HEREOF MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND REGISTRATION OR QUALIFICATION UNDER APPLICABLE BLUE SKY LAWS OR AN OPINION OF COUNSEL THAT SUCH PROPOSED TRANSFER DOES NOT VIOLATE THE SECURITIES ACT AND APPLICABLE BLUE SKY LAWS.

 

CELSIUS HOLDINGS, INC.

 CONVERTIBLE PROMISSORY NOTE

 

$2,000,000 or principal amount outstanding Dated Effective as of December 12, 2018

 

FOR VALUE RECEIVED , the undersigned, CELSIUS HOLDINGS, INC., a Nevada corporation (the “ Company ”), hereby promises to pay to the order of GRIEG INTERNATIONAL LIMITED (the “ Holder ”), the principal amount of up to TWO MILLION DOLLARS ($2,000,000), or so much of such principal amount as shall be outstanding from time to time under this Note, together with accrued and unpaid interest thereon as described herein.

 

1.        Definitions . In addition to the terms defined elsewhere in this Note, the following terms have the meanings indicated:

 

Affiliate ” means, with respect to any Person that is not an individual, another other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with such Person. The Parties acknowledge and agree that Charmnew Limited shall not be deemed an Affiliate of Grieg International Limited, and vice versa.

 

Business Day ” means any day other than a Saturday, Sunday or other day on which banks in New York, New York are generally not open for business.

 

Conversion Date ” means the date a Conversion Notice is delivered to the Company.

 

Conversion Notice ” means a written notice in the form attached as Exhibit A hereto.

 

Conversion Price ” means the average of the closing price for the Shares during the ten (10) Business Days prior to each Advance Date, less a discount of 10%, as may be adjusted from time to time as provided herein.

 

Loan Agreement ” means that certain Convertible Loan Agreement dated as of December 12, 2018 by and between the Company and the Holder.

 

Person ” means any individual or entity.

 

 

  

Shares ” means shares of the Company’s common stock.

 

2.              Advances .

 

(a)       The Holder may make multiple advances under this Note in amounts of not less than One Million US Dollars (US$1,000,000). Amounts outstanding hereunder from time to time shall be as set forth in the records of the Holder, which shall be final and determinative absent error upon review by the Company. Attached hereto as Exhibit A is a schedule of advances, on which Holder shall record each advance and the principal amount thereof.

 

(b)       The Company shall notify the Holder in writing when it wishes to draw upon this Note, which notice shall specify the date of the advance and the principal amount thereof. So long as no Event of Default has occurred or is continuing at such time, the Holder shall advance the requested funds within three (3) Business Days of the date specified in such notice.

 

3.              Interest . The unpaid principal balance from time to time outstanding hereunder shall bear interest from the date disbursed until paid in full at a fixed rate of five percent (5%) per annum. Any amount of principal of or interest on this Note which is not paid when due shall bear interest at the Default Rate (hereinafter defined) from the due date thereof until the same is paid. “ Default Rate ” means a rate of eighteen (18%) per annum, or such lesser rate equal to the highest rate permitted by applicable law. Interest will be calculated on this Note from and including its original issuance date on the basis of a 360-day year consisting of twelve 30 day months.

 

4.              Payment Terms .

 

(a)       Interest on this Note will accrue and will be payable semi-annually until the earliest to occur of (i) the Maturity Date (as hereinafter defined), (ii) conversion of the Note into Shares pursuant to Section 5 below or (iii) the Note otherwise becoming due and payable.

 

(b)       Subject to earlier payment or conversion as provided for elsewhere in this Note, the entire unpaid principal amount and all unpaid accrued interest under this Note shall be due and payable to Holder on the date that is two years from the Effective Date (the “ Maturity Date ”). Principal and interest due hereunder shall be paid in lawful money of the United States of America in immediately available federal funds or the equivalent at the address of the Holder set forth in Section 8 below or at such other address as the Holder may designate. All payments made hereunder shall first be applied to interest then due and payable and any excess payment shall then be applied to reduce the principal amount.

 

(c)       Upon payment in full or conversion to Shares of all principal and interest payable hereunder, the Holder shall surrender this Note to the Company for cancellation.

 

(d)       The Note outstanding principal and unpaid accrued interest thereon may be prepaid by the Company only upon receipt of written consent from Holder.

 

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(e)       Subject to Section 5(b), if, at any time during which this Note remains outstanding the Company consummates a transaction which entails a private or public financing generating gross proceeds of not less than $25.0 million, the then outstanding principal balance and accrued but unpaid interest under the Note shall be automatically converted into Shares at the Conversion Price up to the Conversion Limitation (if applicable), and the remaining outstanding principal balance and accrued but unpaid interest under the Note, if any, shall be settled in cash pursuant to Section 4(b).

 

(f)       Any and all payments by the Company to or for the account of the Holder under this Note shall be made free and clear of and without deduction for any taxes, except as required by applicable law. If the Company shall be required by any applicable law to deduct any taxes from or in respect of any sum payable under this Note to the Holder, (i) the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this ‎ provision ), the Holder receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Company shall make such deductions, (iii) the Company shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law, and (iv) as promptly as practicable after the date of such payment, the Company shall furnish to the Holder the original or a certified copy of a receipt evidencing payment thereof.

 

5.              Conversion into Shares; Conversion Limitation; Reservation .

 

(a)       At any time prior to the Maturity Date, the Holder may, at its option, convert the entire principal amount of and all accrued but unpaid interest on this Note into shares of Company’s common stock at the applicable Conversion Price, subject Section 5(b) below and subject to any applicable adjustments as set forth in Section 7 below. The Holder shall effect a conversion by delivering to the Company a conversion notice in substantially the form attached hereto as Exhibit B (the “Conversion Notice” ). Subject to Section 5(b), upon the Maturity Date, the then outstanding principal balance and accrued but unpaid interest under this Note shall be automatically converted into Shares at the Conversion Price up to the Conversion Limitation (if applicable), and the remaining outstanding principal balance and accrued but unpaid interest under the Note, if any, shall be settled in cash pursuant to Section 4(b).

 

(b)       Notwithstanding anything to the contrary in this Note, the Holder shall not convert, and the Company shall not issue any Shares upon any attempted conversion or exercise of, any portion of this Note, to the extent that after giving effect to such conversion, the Holder (and its Affiliates) would have acquired, through the conversion of this Note or otherwise, beneficial ownership of a number of Shares in excess of 19.99% of the aggregate number of Shares outstanding immediately after giving effect to such conversion or exercise (the “ Conversion Limitation ”). For purposes of the foregoing, the number of Shares beneficially owned by the Holder and its Affiliates shall include the number of Shares issuable upon conversion of this Note with respect to which such determination is being made, and shall include additional shares of Common Stock issued to the Holder and its Affiliates after the date hereof, but shall exclude Shares which would be issuable upon (A) conversion of the remaining, nonconverted portion of any Note beneficially owned by the Holder or any of its Affiliates and (B) exercise or conversion of the unexercised or nonconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its Affiliates. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities and Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder from time to time in effect, the “ Exchange Act ”). By not less than 65 days’ prior written notice to the Company, the Holder may, at its election, (i) increase or decrease the Conversion Limitation to any other percentage not in excess of 19.99% specified in such notice, and the Conversion Limitation shall continue to apply until such 65th day (or such later date, as determined by the Investor, as may be specified in such notice); or (ii) waive in whole or in part permanently or temporarily at any time the provisions of this Section and this Section shall not be waived until such 65th day (or such later date, as determined by the Holder, as may be specified in such notice).

 

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(c)       The Company covenants that it will at all times reserve and keep available out of its authorized and unissued shares of common stock for the sole purpose of issuance upon conversion of this Note, free from all mortgages, charges, pledges, liens, hypothecations or other security interests, preemptive rights or any other actual contingent purchase rights of persons other than the Holder, not less than the aggregate number of shares of the Common Stock as shall be issuable (taking into account the adjustments and restrictions contained in this Note) upon the conversion of this Note. The Company covenants that all shares of common stock that shall be so issuable shall, upon issue, be duly authorized, validly issued, fully paid and nonassessable. The Company agrees that its issuance of this Note shall constitute full authority to its officers, agents, and transfer agents who are charged with the duty of executing and issuing stock certificates to execute and issue the necessary certificates for shares of Common Stock upon the conversion of this Note. The issuance of certificates for shares of the Common Stock on conversion of this Note shall be made without charge to the Holder hereof for any documentary, stamp or similar taxes that may be payable in respect of the issue or delivery of such certificates.

 

6.              Mechanics of Conversion .

 

(a)       Upon receipt of a Conversion Notice, the Company shall, as soon as practicable (but in no event later than five (5) Business Days after the Conversion Date) issue or cause to be issued and cause to be delivered to the Holder and in such name or names as the Holder may designate a certificate for the Shares issuable upon such conversion, with such restrictive legends as deemed necessary by the Company. The Holder, or any Person so designated by the Holder to receive Shares, shall be deemed to have become holder of record of such Shares as of the Conversion Date.

 

(b)       The Holder shall be required to deliver the original Note to the Company in order to effect a conversion hereunder.

 

(c)       The Company’s obligations to issue and deliver Shares upon conversion of this Note in accordance with the terms hereof are absolute and unconditional, irrespective of any action or inaction by the Holder to enforce the same, any waiver or consent with respect to any provision hereof, the recovery of any judgment against any Person or any action to enforce the same, or any set-off, counterclaim, recoupment, limitation or termination, or any breach or alleged breach by the Holder or any other Person of any obligation to the Company or any violation or alleged violation of law by the Holder or any other Person, and irrespective of any other circumstance which might otherwise limit such obligation of the Company to the Holder in connection with the issuance of such Shares.

 

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(d)        No Fractional Shares . The Company shall not issue or cause to be issued fractional Shares on conversion of this Note. If any fraction of a Share would, except for the provisions of this Section 6(d) , be issuable upon conversion of this Note, the number of Shares to be issued will be rounded up to the nearest whole share.

 

7.              Certain Adjustments . The Conversion Price is subject to adjustment from time to time as set forth in this Section 7 .

 

(a)        Stock Dividends and Splits . If the Company, at any time while this Note is outstanding, (i) pays a stock dividend on its Shares or otherwise makes a distribution on any class of capital stock that is payable in Shares, (ii) subdivides outstanding Shares into a larger number of shares, or (iii) combines outstanding Shares into a smaller number of shares, then in each such case the Conversion Price shall be appropriately and equitably adjusted to reflect such event. Any adjustment made pursuant to Section 7(a)(i) shall become effective immediately after the record date for the determination of shareholders entitled to receive such dividend or distribution, and any adjustment pursuant to Section 7(a)(ii) or Section 7(a)(iii) shall become effective immediately after the effective date of such subdivision or combination.

 

(b)        Adjustment for Other Dividends and Distributions . If the Company shall at any time or from time to time after the date hereof, make or issue or set a record date for the determination of holders of Shares entitled to receive a dividend or other distribution payable in other than Shares, then, and in each event, an appropriate revision to the applicable Conversion Price shall be made and provision shall be made (by adjustments of the Conversion Price or otherwise) so that the holders of this Note shall receive upon conversions thereof, in addition to the number of Shares receivable thereon, the number of securities of the Company or other issuer (as applicable) which they would have received had this Note been converted into Shares on the date of such event and had thereafter, during the period from the date of such event to and including the Conversion Date, retained such securities (together with any distributions payable thereon during such period), giving application to all adjustments called for during such period under this Note, provided , however , that if such record date shall have been fixed and such dividend is not fully paid or if such distribution is not fully made on the date fixed therefor, the Conversion Price shall be adjusted pursuant to this Section 7(c) as of the time of actual payment of such dividends or distributions.

 

(c)        Adjustments for Reclassification, Exchange or Substitution . If the Shares issuable upon conversion of this Note at any time or from time to time after the date hereof shall be changed to the same or different number of shares of any class or classes of stock, whether by reclassification, exchange, substitution or otherwise (other than by way of a stock split or combination of shares or stock dividends provided for in this Section 7 ), then, and in each event, an appropriate revision to the Conversion Price shall be made and provisions shall be made (by adjustments of the Conversion Price or otherwise) so that the Holder shall have the right thereafter to convert this Note into the kind and amount of shares of stock and other securities receivable upon reclassification, exchange, substitution or other change, by holders of the number of Shares into which such Note might have been converted immediately prior to such reclassification, exchange, substitution or other change, all subject to further adjustment as provided herein.

 

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(d)        Merger, Sale of Assets, etc . If (i) the Company effects any merger or consolidation of the Company with or into another entity, (ii) the Company effects any sale of all or substantially all of its assets in one or a series of related transactions, (iii) any tender offer or exchange offer (whether by the Company or another entity) is completed pursuant to which holders of Shares are permitted to tender or exchange their shares for other securities, cash or property, (iv) the Company consummates a stock purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with one or more persons or entities whereby such other persons or entities (such other persons or entities, the “ Purchasers ”) acquire more than 50% of the outstanding Shares (not including any shares of Common Stock held by the Purchasers or such other persons or entities associated or affiliated with the Purchasers), or (v) any “person” or “group” (as these terms are used for purposes of Sections 13(d) and 14(d) of the 1934 Act) is or shall become the “beneficial owner” (as defined in Rule 13d-3 under the 1934 Act), directly or indirectly, of 50% of the aggregate Shares (in any such case, a “ Fundamental Transaction ”), this Note, as to the principal and accrued and unpaid interest thereon, shall thereafter, at the Holder’s election, be deemed to evidence the right to convert into such number and kind of shares or other securities and property as would have been issuable or distributable on account of such Fundamental Transaction, upon or with respect to the securities subject to the conversion right immediately prior to such Fundamental Transaction. The foregoing provision shall similarly apply to successive Fundamental Transactions of a similar nature by any such successor or purchaser. Without limiting the generality of the foregoing, the provisions of this Section shall apply to such securities of such successor or purchaser after any such Fundamental Transaction .

 

(e)        Calculations . All calculations under this Section 7 shall be made to the nearest cent or the nearest 1/100th of a share, as applicable. The number of Shares outstanding at any given time shall not include shares owned or held by or for the account of the Company.

 

(f)        Notice of Adjustments . Upon the occurrence of each adjustment pursuant to this Section 7 , the Company, at its expense, will promptly compute such adjustment in accordance with the terms hereof and prepare and deliver to the Holder a certificate describing in reasonable detail such adjustment and the transactions giving rise thereto, including all facts upon which such adjustment is based.

 

(g)        No Impairment . The Company shall not, by amendment of its Articles of Incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Company, but will at all times in good faith, assist in the carrying out of all the provisions of this Section 7 and in the taking of all such action as may be necessary or appropriate in order to protect the Conversion Rights of the Holder against impairment.

 

(h)        Notice of Corporate Events . If the Company: (i) declares a dividend or any other distribution of cash, securities or other property in respect of its Shares, including without limitation any granting of rights or warrants to subscribe for or purchase any capital stock of the Company; (ii) authorizes or approves, enters into any agreement contemplating, or solicits shareholder approval for, any merger, consolidation or similar transaction in which the Company is not the surviving entity; or (iii) authorizes the voluntary dissolution, liquidation or winding up of the affairs of the Company, then the Company shall deliver to the Holder a notice describing the material terms and conditions of such transaction, at least ten (10) Business Days prior to the applicable record or effective date on which a Person would need to hold Shares in order to participate in or vote with respect to such transaction, and the Company will take all steps reasonably necessary in order to insure that the Holder is given the practical opportunity to convert this Note prior to such time so as to participate in or vote with respect to such transaction; provided , however , that the failure to deliver such notice or any defect therein shall not affect the validity of the corporate action required to be described in such notice.

 

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8.              Notices . All notices and other communications required or permitted hereunder to be given to a party to this Note shall be in writing and shall be faxed, mailed by registered or certified mail postage prepaid, delivered by a national overnight delivery service, or otherwise delivered by hand, electronically (including by email) or by messenger, addressed to such party’s address as set forth below:

 

if to the Company: Celsius Holdings, Inc.
  2424 N Federal Highway
  Suite #208
  Boca Raton, FL 33341
  Email: jfieldly@celsius.com

 

if to the Holder: Grieg International Limited
  c/o 29 th Floor, Harbour Centre
  25 Harbour Road, Wan Chai
  Hong Kong
  Attn: Jason Wong / Raymond Ng

  

or such other address with respect to a party as such party shall notify each other party in writing as above provided. Any notice sent in accordance with this Section 8 shall be effective upon the earlier of: (i) if mailed, five (5) Business Days after mailing; (ii) if sent by messenger, upon delivery; (iii) if sent by a nationally recognized overnight delivery service, one (1) Business Day after having been dispatched; or (iv) if sent by electronic mail, upon transmission and notice by telephone of such transmission or (if transmitted and received on a non-Business Day) on the first Business Day following transmission and notice by telephone; and (vi) upon the actual receipt thereof.

 

9.              Default and Remedies .

 

(a)       An “ Event of Default ” under this Note shall mean the occurrence of any of the following events:

 

(i)       If the Company shall fail to make within five (5) Business Days when due the payment of the principal amount or interest as required by this Note, whether at the due date thereof or by acceleration thereof or otherwise;

 

(ii)       The Company shall fail to observe or perform any covenant or agreement contained in this Note or the Loan Agreement which failure is not cured, if possible to cure, within twenty (20) Business Days after notice to the Company of such default sent by the Holder or by any other Holder;

 

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(iii)       If any warranty, representation, or other statement made or furnished to Holder by or on behalf of Company or in any of the Loan Documents proves to be false or misleading in any material respect when made or furnished and is not cured after twenty (20) Business Days’ written notice from the Holder;

 

(iv)       If the Company shall be involved in financial difficulties as evidenced by:

 

(a)       its commencing a voluntary case under the United States Bankruptcy Code or any similar law regarding debtor’s rights and remedies or an admission seeking the relief therein provided;

 

(b)       its making a general assignment for the benefit of its creditors; or

 

(c)       its voluntarily liquidating or terminating operations or applying for or consenting to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of such Person or of all or of a substantial part of its assets;

 

(v)        The Shares shall not be eligible for listing or quotation for trading on the Nasdaq Global Market or the Nasdaq Capital Market (as applicable) for a period of ten (10) consecutive trading days, and shall not be eligible to resume listing or quotation for trading thereon within thirty (30) trading days;

 

(vi)       A stop trade order imposed judicially or by the U.S. Securities and Exchange Commission or by the OTC Bulletin Board or other exchange trading suspension with respect to Shares and such stop order not being rectified and resumed within thirty (30) trading days;

 

(vii)       A default by the Company or any of its subsidiaries under any loan, mortgage, indenture, notes, debentures or any other instrument evidencing any indebtedness of the Company or any of its subsidiaries in excess of $1,000,000, that results in acceleration of the maturity of such debt or liability, or failure to pay any such debt when due ; or

 

 

(viii)       The Company’s notice to the Holder, including by way of public announcement, at any time, of its inability to comply or its intention not to comply with proper requests for conversion of this Note into Shares.

 

(b)       Upon and during the continuation of an Event of Default, the Holder may declare the outstanding principal amount, and all accrued and unpaid interest on the principal amount, immediately due and payable in, at Holder’s option, in cash and/or Shares (at the Conversion Price) and thereupon such balance shall become so due and payable without presentation, protest or further demand or notice of any kind, all of which are hereby expressly waived. The rights and remedies provided by this Note shall be cumulative, and shall be in addition to, and not exclusive of, any other rights and remedies available at law or in equity. Each request for a Loan Advance made by Borrower pursuant to this Agreement or any of the other Loan Documents shall constitute an automatic representation and warranty by Borrower to Lender that there does not then exist any Event of Default.

 

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10.            Assignability . Neither party may assign this Note without the prior consent of the other party. No such assignment shall constitute a novation or release of the Company of the obligations hereof or from any liability to the Holder.

 

11.            Usury Laws . It is the intention of the Company and the Holder to conform strictly to all applicable usury laws now or hereafter in force, and any interest payable under this Note shall be subject to reduction to an amount that is the maximum legal amount allowed under the applicable usury laws as now or hereafter construed by the courts having jurisdiction over such matters. The aggregate of all interest (whether designated as interest, service charges, points or otherwise) contracted for, chargeable, or receivable under this Note shall under no circumstances exceed the maximum legal rate upon the principal amount remaining unpaid from time to time. If such interest does exceed the maximum legal rate, it shall be deemed a mistake and such excess shall be canceled automatically and, if theretofore paid, rebated to the Company or credited on the principal amount, or if this Note has been repaid, then such excess shall be rebated to the Company.

 

12.            Transfer Register . In the event of a transfer, the Company shall maintain a register (the “ Register ”) for the registration or transfer of this Note, and shall enter the names and addresses of the registered holders of this Note, the transfers of this Note and the names and addresses of the transferees of this Note. The Company shall treat any registered holder as the absolute owner of this Note held by such holder, as indicated in the Register, for the purpose of receiving payment of all amounts payable with respect to this Note and for all other purposes. The Note and the right, title, and interest of any person in and to such Note shall be transferable only upon notation of such transfer in the Register. Solely for purposes of this Section 7.4 and for tax purposes only, the keeper of the Register, if it is not the Company, shall be the Company’s agent for purposes of maintaining the Register. This Section 7.4 shall be construed so that this Note is at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the United States Internal Revenue Code (the “ Code ”) and any related regulations (and any other relevant or successor provisions of the Code or such regulations).

 

13.            Miscellaneous .

 

(a)       Any amendment hereto or waiver of any provision hereof must be in writing and signed by both the Company and the Holder.

 

(b)       Wherever in this Note reference is made to the Company or the Holder, such reference shall be deemed to include, as applicable, a reference to their respective permitted successors and permitted assigns, and the provisions of this Note shall be binding upon and shall inure to the benefit of such successors and permitted assigns.

 

(c)       Except as otherwise specifically provided for herein, this Note shall in all respects be governed by and construed in accordance with the laws of the State of Florida without regard to conflicts of law principles of any jurisdiction to the contrary.

 

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(d)       The captions of the Sections of this Note are inserted solely for ease of reference and shall not be considered in the interpretation or construction of this Note.

 

(e)       The Holder, by acceptance of this Note, hereby represents and warrants that this Note has been acquired by the Holder for investment only and not for resale or distribution hereof. The Holder, by acceptance of this Note, further understands, covenants and agrees that the Company is under no obligation and has made no commitment to provide for registration of this Note or Shares issuable upon conversion of this Note under the Securities Act or applicable state securities laws.

 

(f)       All references to “$” or dollars in this Note shall refer to the currency of the United States.

 

(g)       The Company waives presentment, notice and demand, notice of protest, notice of demand and dishonor, and notice of nonpayment of this Note.

 

(h)       Any legal action regarding this Note shall be brought in the courts located in Palm Beach County, Florida.

 

(i)        In the event that any provision of this Note is invalid or unenforceable under any applicable statute or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform with such statute or rule of law. Any such provision which may prove invalid or unenforceable under any law shall not affect the validity or enforceability of any other provision of this Note. Nothing contained herein shall be deemed or operate to preclude the Holder from bringing suit or taking other legal action against the Company in any other jurisdiction to collect on the Company’s obligations to the Holder, or to enforce a judgment or other court ruling in favor of the Holder.

 

(j)        No delay in the exercise of any right or remedy of any party hereto shall operate as a waiver thereof, and no single or partial exercise of any such right or remedy shall preclude other or future exercise thereof or the exercise of any other right or remedy.

 

(k)        It is expressly understood and agreed by the parties hereto that if it is necessary to enforce payment of this Note through the engagement or efforts of an attorney or by suit, the Company shall pay reasonable attorneys’ fees, expenses of counsel, and other costs of collection actually incurred by the Holder.

 

[Signature Page Follows]

 

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IN WITNESS WHEREOF, the Company has executed, acknowledged and delivered this Note as of the day and year first above written.

     
  CELSIUS HOLDINGS, INC.
     
  By: /s/ John Fieldly
    Name: John Fieldly
    Title: CEO

     
ACCEPTED AND ACKNOWLEDGED:  
   
GRIEG INTERNATIONAL LIMITED  
     
By: /s/ Chau Hoi Shuen, Solina Holly  
Name: Chau Hoi Shuen, Solina Holly  
Title: Director  

  

[Signature Page to the Convertible Promissory Note by and between
Celsius Holdings, Inc. and Grieg International Limited]

 

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Exhibit A

 

SCHEDULE OF ADVANCES

 

Date Principal Amount
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   

 

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Exhibit B

 

FORM OF CONVERSION NOTICE

 

(To be executed by the Holder in order to convert Note)

 

The undersigned hereby elects to convert the specified principal and interest amount of the Convertible Note (the “ Note ”) into shares of common stock (“ Shares ”), of CELSIUS HOLDINGS, INC ., a Nevada corporation, according to the conditions hereof, as of the date written below.

 

   
  Date to Effect Conversion
   
  Principal Amount Owned Prior to Conversion
   
  Principal and Interest Amount of Note to be Converted
   
  Number of Shares to be Issued
   
  Applicable Conversion Price
   
  Name of Holder
   
  By:  
    Name:
    Title:

 

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Exhibit 10.6

 

THIS AMENDED AND RESTATED CONVERTIBLE PROMISSORY NOTE (THE “NOTE”) AND THE SECURITIES ISSUABLE UPON CONVERSION HEREOF HAVE NOT BEEN REGISTERED UNDER THE APPLICABLE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR UNDER THE SECURITIES LAWS OF ANY STATE (“BLUE SKY LAWS”). THIS NOTE HAS BEEN ACQUIRED FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO THE DISTRIBUTION THEREOF. THIS NOTE AND THE SECURITIES ISSUABLE UPON CONVERSION HEREOF MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND REGISTRATION OR QUALIFICATION UNDER APPLICABLE BLUE SKY LAWS OR AN OPINION OF COUNSEL THAT SUCH PROPOSED TRANSFER DOES NOT VIOLATE THE SECURITIES ACT AND APPLICABLE BLUE SKY LAWS.

 

CELSIUS HOLDINGS, INC. 

AMENDED AND RESTATED CONVERTIBLE PROMISSORY NOTE

 

$5,000,000 or principal amount outstanding Dated Effective as of December 14, 2018

 

This is an amendment and restatement of the $4,500,000 Amended and Restated Promissory Note issued on April 16, 2015 by Celsius Holdings, Inc. to CD Financial, LLC (the “ Prior Promissory Note ”). Certain prepayments were previously made on the Prior Promissory Note, such that the outstanding principal amount of the Prior Promissory Note is $3,500,000 as of the date hereof.

 

FOR VALUE RECEIVED , the undersigned, CELSIUS HOLDINGS, INC., a Nevada corporation (the “ Company ”), hereby promises to pay to the order of CD FINANCIAL, LLC (the “ Holder ”), the principal amount of up to FIVE MILLION DOLLARS ($5,000,000) , or so much of such principal amount as shall be outstanding from time to time under this Note, together with accrued and unpaid interest thereon as described herein.

 

1.               Definitions . In addition to the terms defined elsewhere in this Note, the following terms have the meanings indicated:

 

Affiliate ” means, with respect to any Person that is not an individual, another other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with such Person.

 

Business Day ” means any day other than a Saturday, Sunday or other day on which banks in New York, New York are generally not open for business.

 

Conversion Date ” means the date a Conversion Notice is delivered to the Company.

 

Conversion Notice ” means a written notice in the form attached as Exhibit A hereto.

 

Conversion Price ” means the average of the closing price for the Shares during the ten (10) Business Days prior to each Advance Date, less a discount of 10%, as may be adjusted from time to time as provided herein.

 

 

 

Loan Agreement ” means that certain Amended and Restated Convertible Loan Agreement dated as of even date herewith by and between the Company and the Holder.

 

Person ” means any individual or entity.

 

Shares ” means shares of the Company’s common stock.

 

2.             Advances .

 

(a)            The Holder may make multiple advances under this Note in amounts of not less than Five Hundred Thousand US Dollars (US$500,000). Amounts outstanding hereunder from time to time shall be as set forth in the records of the Holder, which shall be final and determinative absent error upon review by the Company. Attached hereto as Exhibit A is a schedule of advances, on which Holder shall record each advance and the principal amount thereof.

 

(b)            The Company shall notify the Holder in writing when it wishes to draw upon this Note, which notice shall specify the date of the advance and the principal amount thereof. So long as no Event of Default has occurred or is continuing at such time, the Holder shall advance the requested funds within three (3) Business Days of the date specified in such notice.

 

3.             Interest . The unpaid principal balance from time to time outstanding hereunder shall bear interest from the date disbursed until paid in full at a fixed rate of five percent (5%) per annum. Any amount of principal of or interest on this Note which is not paid when due shall bear interest at the Default Rate (hereinafter defined) from the due date thereof until the same is paid. “ Default Rate ” means a rate of eighteen (18%) per annum, or such lesser rate equal to the highest rate permitted by applicable law. Interest will be calculated on this Note from and including its original issuance date on the basis of a 360-day year consisting of twelve 30 day months.

 

4.             Payment Terms .

 

(a)            Interest on this Note will accrue and will be payable semi-annually until the earliest to occur of (i) the Maturity Date (as hereinafter defined), (ii) conversion of the Note into Shares pursuant to Section 5 below or (iii) the Note otherwise becoming due and payable.

 

(b)            Subject to earlier payment or conversion as provided for elsewhere in this Note, the entire unpaid principal amount and all unpaid accrued interest under this Note shall be due and payable to Holder on the date that is one year from the Effective Date (the “ Maturity Date ”). Principal and interest due hereunder shall be paid in lawful money of the United States of America in immediately available federal funds or the equivalent at the address of the Holder set forth in Section 8 below or at such other address as the Holder may designate. All payments made hereunder shall first be applied to interest then due and payable and any excess payment shall then be applied to reduce the principal amount.

 

(c)            Upon payment in full or conversion to Shares of all principal and interest payable hereunder, the Holder shall surrender this Note to the Company for cancellation.

 

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(d)            The Note outstanding principal and unpaid accrued interest thereon may be prepaid by the Company only upon receipt of written consent from Holder.

 

(e)            Subject to Section 5(b), if, at any time during which this Note remains outstanding the Company consummates a transaction which entails a private or public financing generating gross proceeds of not less than $25.0 million, the then outstanding principal balance and accrued but unpaid interest under the Note shall be automatically converted into Shares at the Conversion Price up to the Conversion Limitation (if applicable), and the remaining outstanding principal balance and accrued but unpaid interest under the Note, if any, shall be settled in cash pursuant to Section 4(b).

 

(f)             Any and all payments by the Company to or for the account of the Holder under this Note shall be made free and clear of and without deduction for any taxes, except as required by applicable law. If the Company shall be required by any applicable law to deduct any taxes from or in respect of any sum payable under this Note to the Holder, (i) the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this ‎ provision ), the Holder receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Company shall make such deductions, (iii) the Company shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law, and (iv) as promptly as practicable after the date of such payment, the Company shall furnish to the Holder the original or a certified copy of a receipt evidencing payment thereof.

 

5.             Conversion into Shares; Conversion Limitation; Reservation .

 

(a)            At any time prior to the Maturity Date, the Holder may, at its option, convert the entire principal amount of and all accrued but unpaid interest on this Note into shares of Company’s common stock at the applicable Conversion Price, subject Section 5(b) below and subject to any applicable adjustments as set forth in Section 7 below. The Holder shall effect a conversion by delivering to the Company a conversion notice in substantially the form attached hereto as Exhibit B (the “Conversion Notice” ). Subject to Section 5(b), upon the Maturity Date, the then outstanding principal balance and accrued but unpaid interest under this Note shall be automatically converted into Shares at the Conversion Price up to the Conversion Limitation (if applicable), and the remaining outstanding principal balance and accrued but unpaid interest under the Note, if any, shall be settled in cash pursuant to Section 4(b).

 

(b)            The Company covenants that it will at all times reserve and keep available out of its authorized and unissued shares of common stock for the sole purpose of issuance upon conversion of this Note, free from all mortgages, charges, pledges, liens, hypothecations or other security interests, preemptive rights or any other actual contingent purchase rights of persons other than the Holder, not less than the aggregate number of shares of the Common Stock as shall be issuable (taking into account the adjustments and restrictions contained in this Note) upon the conversion of this Note. The Company covenants that all shares of common stock that shall be so issuable shall, upon issue, be duly authorized, validly issued, fully paid and nonassessable. The Company agrees that its issuance of this Note shall constitute full authority to its officers, agents, and transfer agents who are charged with the duty of executing and issuing stock certificates to execute and issue the necessary certificates for shares of Common Stock upon the conversion of this Note. The issuance of certificates for shares of the Common Stock on conversion of this Note shall be made without charge to the Holder hereof for any documentary, stamp or similar taxes that may be payable in respect of the issue or delivery of such certificates.

 

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6.             Mechanics of Conversion .

 

(a)            Upon receipt of a Conversion Notice, the Company shall, as soon as practicable (but in no event later than five (5) Business Days after the Conversion Date) issue or cause to be issued and cause to be delivered to the Holder and in such name or names as the Holder may designate a certificate for the Shares issuable upon such conversion, with such restrictive legends as deemed necessary by the Company. The Holder, or any Person so designated by the Holder to receive Shares, shall be deemed to have become holder of record of such Shares as of the Conversion Date.

 

(b)            The Holder shall be required to deliver the original Note to the Company in order to effect a conversion hereunder.

 

(c)            The Company’s obligations to issue and deliver Shares upon conversion of this Note in accordance with the terms hereof are absolute and unconditional, irrespective of any action or inaction by the Holder to enforce the same, any waiver or consent with respect to any provision hereof, the recovery of any judgment against any Person or any action to enforce the same, or any set-off, counterclaim, recoupment, limitation or termination, or any breach or alleged breach by the Holder or any other Person of any obligation to the Company or any violation or alleged violation of law by the Holder or any other Person, and irrespective of any other circumstance which might otherwise limit such obligation of the Company to the Holder in connection with the issuance of such Shares.

 

(d)             No Fractional Shares . The Company shall not issue or cause to be issued fractional Shares on conversion of this Note. If any fraction of a Share would, except for the provisions of this Section 6(d) , be issuable upon conversion of this Note, the number of Shares to be issued will be rounded up to the nearest whole share.

 

7.             Certain Adjustments . The Conversion Price is subject to adjustment from time to time as set forth in this Section 7 .

 

(a)             Stock Dividends and Splits . If the Company, at any time while this Note is outstanding, (i) pays a stock dividend on its Shares or otherwise makes a distribution on any class of capital stock that is payable in Shares, (ii) subdivides outstanding Shares into a larger number of shares, or (iii) combines outstanding Shares into a smaller number of shares, then in each such case the Conversion Price shall be appropriately and equitably adjusted to reflect such event. Any adjustment made pursuant to Section 7(a)(i) shall become effective immediately after the record date for the determination of shareholders entitled to receive such dividend or distribution, and any adjustment pursuant to Section 7(a)(ii) or Section 7(a)(iii) shall become effective immediately after the effective date of such subdivision or combination.

 

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(b)             Adjustment for Other Dividends and Distributions . If the Company shall at any time or from time to time after the date hereof, make or issue or set a record date for the determination of holders of Shares entitled to receive a dividend or other distribution payable in other than Shares, then, and in each event, an appropriate revision to the applicable Conversion Price shall be made and provision shall be made (by adjustments of the Conversion Price or otherwise) so that the holders of this Note shall receive upon conversions thereof, in addition to the number of Shares receivable thereon, the number of securities of the Company or other issuer (as applicable) which they would have received had this Note been converted into Shares on the date of such event and had thereafter, during the period from the date of such event to and including the Conversion Date, retained such securities (together with any distributions payable thereon during such period), giving application to all adjustments called for during such period under this Note, provided , however , that if such record date shall have been fixed and such dividend is not fully paid or if such distribution is not fully made on the date fixed therefor, the Conversion Price shall be adjusted pursuant to this Section 7(c) as of the time of actual payment of such dividends or distributions.

 

(c)             Adjustments for Reclassification, Exchange or Substitution . If the Shares issuable upon conversion of this Note at any time or from time to time after the date hereof shall be changed to the same or different number of shares of any class or classes of stock, whether by reclassification, exchange, substitution or otherwise (other than by way of a stock split or combination of shares or stock dividends provided for in this Section 7 ), then, and in each event, an appropriate revision to the Conversion Price shall be made and provisions shall be made (by adjustments of the Conversion Price or otherwise) so that the Holder shall have the right thereafter to convert this Note into the kind and amount of shares of stock and other securities receivable upon reclassification, exchange, substitution or other change, by holders of the number of Shares into which such Note might have been converted immediately prior to such reclassification, exchange, substitution or other change, all subject to further adjustment as provided herein.

 

(d)             Merger, Sale of Assets, etc . If (i) the Company effects any merger or consolidation of the Company with or into another entity, (ii) the Company effects any sale of all or substantially all of its assets in one or a series of related transactions, (iii) any tender offer or exchange offer (whether by the Company or another entity) is completed pursuant to which holders of Shares are permitted to tender or exchange their shares for other securities, cash or property, (iv) the Company consummates a stock purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with one or more persons or entities whereby such other persons or entities (such other persons or entities, the “ Purchasers ”) acquire more than 50% of the outstanding Shares (not including any shares of Common Stock held by the Purchasers or such other persons or entities associated or affiliated with the Purchasers), or (v) any “person” or “group” (as these terms are used for purposes of Sections 13(d) and 14(d) of the 1934 Act) is or shall become the “beneficial owner” (as defined in Rule 13d-3 under the 1934 Act), directly or indirectly, of 50% of the aggregate Shares (in any such case, a “ Fundamental Transaction ”), this Note, as to the principal and accrued and unpaid interest thereon, shall thereafter, at the Holder’s election, be deemed to evidence the right to convert into such number and kind of shares or other securities and property as would have been issuable or distributable on account of such Fundamental Transaction, upon or with respect to the securities subject to the conversion right immediately prior to such Fundamental Transaction. The foregoing provision shall similarly apply to successive Fundamental Transactions of a similar nature by any such successor or purchaser. Without limiting the generality of the foregoing, the provisions of this Section shall apply to such securities of such successor or purchaser after any such Fundamental Transaction.

 

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(e)             Calculations . All calculations under this Section 7 shall be made to the nearest cent or the nearest 1/100th of a share, as applicable. The number of Shares outstanding at any given time shall not include shares owned or held by or for the account of the Company.

 

(f)              Notice of Adjustments . Upon the occurrence of each adjustment pursuant to this Section 7 , the Company, at its expense, will promptly compute such adjustment in accordance with the terms hereof and prepare and deliver to the Holder a certificate describing in reasonable detail such adjustment and the transactions giving rise thereto, including all facts upon which such adjustment is based.

 

(g)             No Impairment . The Company shall not, by amendment of its Articles of Incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Company, but will at all times in good faith, assist in the carrying out of all the provisions of this Section 7 and in the taking of all such action as may be necessary or appropriate in order to protect the Conversion Rights of the Holder against impairment.

 

(h)             Notice of Corporate Events . If the Company: (i) declares a dividend or any other distribution of cash, securities or other property in respect of its Shares, including without limitation any granting of rights or warrants to subscribe for or purchase any capital stock of the Company; (ii) authorizes or approves, enters into any agreement contemplating, or solicits shareholder approval for, any merger, consolidation or similar transaction in which the Company is not the surviving entity; or (iii) authorizes the voluntary dissolution, liquidation or winding up of the affairs of the Company, then the Company shall deliver to the Holder a notice describing the material terms and conditions of such transaction, at least ten (10) Business Days prior to the applicable record or effective date on which a Person would need to hold Shares in order to participate in or vote with respect to such transaction, and the Company will take all steps reasonably necessary in order to insure that the Holder is given the practical opportunity to convert this Note prior to such time so as to participate in or vote with respect to such transaction; provided , however , that the failure to deliver such notice or any defect therein shall not affect the validity of the corporate action required to be described in such notice.

 

8.             Notices . All notices and other communications required or permitted hereunder to be given to a party to this Note shall be in writing and shall be faxed, mailed by registered or certified mail postage prepaid, delivered by a national overnight delivery service, or otherwise delivered by hand, electronically (including by email) or by messenger, addressed to such party’s address as set forth below:

 

  if to the Company: Celsius Holdings, Inc. 
    2424 N Federal Highway 
    Suite #208 
    Boca Raton, FL 33341 
    Email: jfieldly@celsius.com

 

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  if to the Holder: CD Financial, LLC 
    3299 NW 2 nd Ave 
    Boca Raton, FL 33431 
    Email: bill.milmoe@cdsholdings.com

  

or such other address with respect to a party as such party shall notify each other party in writing as above provided. Any notice sent in accordance with this Section 8 shall be effective upon the earlier of: (i) if mailed, five (5) Business Days after mailing; (ii) if sent by messenger, upon delivery; (iii) if sent by a nationally recognized overnight delivery service, one (1) Business Day after having been dispatched; or (iv) if sent by electronic mail, upon transmission and notice by telephone of such transmission or (if transmitted and received on a non-Business Day) on the first Business Day following transmission and notice by telephone; and (vi) upon the actual receipt thereof.

 

9.             Default and Remedies .

 

(a)            An “ Event of Default ” under this Note shall mean the occurrence of any of the following events:

 

(i)            If the Company shall fail to make within five (5) Business Days when due the payment of the principal amount or interest as required by this Note, whether at the due date thereof or by acceleration thereof or otherwise;

 

(ii)           The Company shall fail to observe or perform any covenant or agreement contained in this Note or the Loan Agreement which failure is not cured, if possible to cure, within twenty (20) Business Days after notice to the Company of such default sent by the Holder or by any other Holder;

 

(iii)          If any warranty, representation, or other statement made or furnished to Holder by or on behalf of Company or in any of the Loan Documents proves to be false or misleading in any material respect when made or furnished and is not cured after twenty (20) Business Days’ written notice from the Holder;

 

(iv)          If the Company shall be involved in financial difficulties as evidenced by:

 

(a)              its commencing a voluntary case under the United States Bankruptcy Code or any similar law regarding debtor’s rights and remedies or an admission seeking the relief therein provided;

 

(b)              its making a general assignment for the benefit of its creditors; or

 

(c)              its voluntarily liquidating or terminating operations or applying for or consenting to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of such Person or of all or of a substantial part of its assets;

 

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(v)           The Shares shall not be eligible for listing or quotation for trading on the Nasdaq Global Market or the Nasdaq Capital Market (as applicable) for a period of ten (10) consecutive trading days, and shall not be eligible to resume listing or quotation for trading thereon within thirty (30) trading days;

 

(vi)          A stop trade order imposed judicially or by the U.S. Securities and Exchange Commission or by the OTC Bulletin Board or other exchange trading suspension with respect to Shares and such stop order not being rectified and resumed within thirty (30) trading days;

 

(vii)         A default by the Company or any of its subsidiaries under any loan, mortgage, indenture, notes, debentures or any other instrument evidencing any indebtedness of the Company or any of its subsidiaries in excess of $1,000,000, that results in acceleration of the maturity of such debt or liability, or failure to pay any such debt when due; or

 

(viii)        The Company’s notice to the Holder, including by way of public announcement, at any time, of its inability to comply or its intention not to comply with proper requests for conversion of this Note into Shares.

 

(b)           Upon and during the continuation of an Event of Default, the Holder may declare the outstanding principal amount, and all accrued and unpaid interest on the principal amount, immediately due and payable in, at Holder’s option, in cash and/or Shares (at the Conversion Price) and thereupon such balance shall become so due and payable without presentation, protest or further demand or notice of any kind, all of which are hereby expressly waived. The rights and remedies provided by this Note shall be cumulative, and shall be in addition to, and not exclusive of, any other rights and remedies available at law or in equity. Each request for a Loan Advance made by Borrower pursuant to this Agreement or any of the other Loan Documents shall constitute an automatic representation and warranty by Borrower to Lender that there does not then exist any Event of Default.

 

10.           Assignability . Neither party may assign this Note without the prior consent of the other party. No such assignment shall constitute a novation or release of the Company of the obligations hereof or from any liability to the Holder.

 

11.           Usury Laws . It is the intention of the Company and the Holder to conform strictly to all applicable usury laws now or hereafter in force, and any interest payable under this Note shall be subject to reduction to an amount that is the maximum legal amount allowed under the applicable usury laws as now or hereafter construed by the courts having jurisdiction over such matters. The aggregate of all interest (whether designated as interest, service charges, points or otherwise) contracted for, chargeable, or receivable under this Note shall under no circumstances exceed the maximum legal rate upon the principal amount remaining unpaid from time to time. If such interest does exceed the maximum legal rate, it shall be deemed a mistake and such excess shall be canceled automatically and, if theretofore paid, rebated to the Company or credited on the principal amount, or if this Note has been repaid, then such excess shall be rebated to the Company.

 

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12.           Transfer Register . In the event of a transfer, the Company shall maintain a register (the “ Register ”) for the registration or transfer of this Note, and shall enter the names and addresses of the registered holders of this Note, the transfers of this Note and the names and addresses of the transferees of this Note. The Company shall treat any registered holder as the absolute owner of this Note held by such holder, as indicated in the Register, for the purpose of receiving payment of all amounts payable with respect to this Note and for all other purposes. The Note and the right, title, and interest of any person in and to such Note shall be transferable only upon notation of such transfer in the Register. Solely for purposes of this Section 7.4 and for tax purposes only, the keeper of the Register, if it is not the Company, shall be the Company’s agent for purposes of maintaining the Register. This Section 7.4 shall be construed so that this Note is at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the United States Internal Revenue Code (the “ Code ”) and any related regulations (and any other relevant or successor provisions of the Code or such regulations).

 

13.           Miscellaneous .

 

(a)            Any amendment hereto or waiver of any provision hereof must be in writing and signed by both the Company and the Holder.

 

(b)            Wherever in this Note reference is made to the Company or the Holder, such reference shall be deemed to include, as applicable, a reference to their respective permitted successors and permitted assigns, and the provisions of this Note shall be binding upon and shall inure to the benefit of such successors and permitted assigns.

 

(c)            Except as otherwise specifically provided for herein, this Note shall in all respects be governed by and construed in accordance with the laws of the State of Florida without regard to conflicts of law principles of any jurisdiction to the contrary.

 

(d)            The captions of the Sections of this Note are inserted solely for ease of reference and shall not be considered in the interpretation or construction of this Note.

 

(e)            The Holder, by acceptance of this Note, hereby represents and warrants that this Note has been acquired by the Holder for investment only and not for resale or distribution hereof. The Holder, by acceptance of this Note, further understands, covenants and agrees that the Company is under no obligation and has made no commitment to provide for registration of this Note or Shares issuable upon conversion of this Note under the Securities Act or applicable state securities laws.

 

(f)             All references to “$” or dollars in this Note shall refer to the currency of the United States.

 

(g)            The Company waives presentment, notice and demand, notice of protest, notice of demand and dishonor, and notice of nonpayment of this Note.

 

(h)            Any legal action regarding this Note shall be brought in the courts located in Palm Beach County, Florida.

 

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(i)             In the event that any provision of this Note is invalid or unenforceable under any applicable statute or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform with such statute or rule of law. Any such provision which may prove invalid or unenforceable under any law shall not affect the validity or enforceability of any other provision of this Note. Nothing contained herein shall be deemed or operate to preclude the Holder from bringing suit or taking other legal action against the Company in any other jurisdiction to collect on the Company’s obligations to the Holder, or to enforce a judgment or other court ruling in favor of the Holder.

 

(j)             No delay in the exercise of any right or remedy of any party hereto shall operate as a waiver thereof, and no single or partial exercise of any such right or remedy shall preclude other or future exercise thereof or the exercise of any other right or remedy.

 

(k)            It is expressly understood and agreed by the parties hereto that if it is necessary to enforce payment of this Note through the engagement or efforts of an attorney or by suit, the Company shall pay reasonable attorneys’ fees, expenses of counsel, and other costs of collection actually incurred by the Holder.

 

(l)             This Note shall amend, restate and replace the Prior Promissory Note in its entirety; provided, however, that the execution and delivery of this Note shall not in any circumstance be deemed to have terminated, extinguished or discharged any of the Borrower’s outstanding indebtedness under the Prior Promissory Note, all of which indebtedness shall continue under and be governed by this Note. This Note is a replacement, amendment and restatement of the Prior Promissory Note and is not a novation.

 

[Signature Page Follows]

 

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IN WITNESS WHEREOF, the Company has executed, acknowledged and delivered this Note as of the day and year first above written. 

     
  CELSIUS HOLDINGS, INC.
     
  By: /s/ John Fieldly
    Name: John Fieldly
    Title: CEO

  

ACCEPTED AND ACKNOWLEDGED:

 

CD FINANCIAL, LLC

 

By: /s/ William H. Milmoe  
Name: William H. Milmoe  
Title: Manager  

  

[Signature Page to the Amended and Restated Convertible Promissory Note by and between
Celsius Holdings, Inc. and CD Financial, LLC]

 

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Exhibit A

 

SCHEDULE OF ADVANCES 

 

Date Principal Amount
December 14, 2018 $5,000,000
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   
   

 

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Exhibit B

 

FORM OF CONVERSION NOTICE

 

(To be executed by the Holder in order to convert Note)

 

The undersigned hereby elects to convert the specified principal and interest amount of the Convertible Note (the “ Note ”) into shares of common stock (“ Shares ”), of CELSIUS HOLDINGS, INC ., a Nevada corporation, according to the conditions hereof, as of the date written below. 

     
  Date to Effect Conversion
     
  Principal Amount Owned Prior to Conversion
     
  Principal and Interest Amount of Note to be Converted
     
  Number of Shares to be Issued
     
  Applicable Conversion Price
     
  Name of Holder
     
  By:   
    Name:
    Title:

 

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