EXCHANGE AGREEMENT
Exhibit
10.1
This
Exchange Agreement (the “Agreement”) is dated this January 17, 2008, by and
among Celsius Holdings, Inc., a Nevada corporation (the “Company”), and
Xxxxxxxxx Partners LLC (“Holder”).
WHEREAS,
Holder, beneficially owns and holds that certain promissory issued by the
Company in the amount of $250,000.00 and dated April 2, 2007 (the “April 2, 2007
Note”);
WHEREAS,
the Holder desires to exchange the April 2, 2007 Note for 1,000,000 shares
of
the Company’s common stock, par value $.001 per share (“Common Stock”), and a
new promissory note in the amount of $105,000.00 in substantially similar form
to the promissory note attached hereto as Exhibit A (the “New Promissory Note”),
and the Company desires to issue the Common Stock and New Promissory Note in
exchange for the April 2, 2007 Note, all on the terms and conditions set forth
in this Agreement;
WHEREAS,
the Holder shall waive and relinquish any and all rights that the Holder may
have in and to the accrued and unpaid interest on the April 2, 2007 Note;
and
WHEREAS,
the reliance upon the representations made by the Holder in this Agreement,
the
transactions contemplated by this Agreement are such that the offer and exchange
of securities by the Company under this Agreement will be exempt from
registration under applicable United States securities laws because this is
an
exchange offer pursuant to Section 3(a)(9) of the Securities Act of 1933, as
amended (the “Securities Act”) and it is a private placement intended to be a
non-public offering pursuant to Section 4(2) of the Securities Act and/or
Regulation D promulgated under the Securities Act.
NOW,
THEREFORE, in consideration of the terms and conditions contained herein, and
other good and valuable consideration, the receipt and sufficiency of which
is
hereby acknowledged, the Company and the Holder hereby agree as follows:
1. Exchange.
Subject to and upon
the terms and conditions set forth in this Agreement, the Holder agrees to
surrender to the Company (the “Exchange”) the April 2, 2007 Note beneficially
owned by the Holders for 1,000,000 shares of the Company’s newly issued Common
Stock (the “Exchange Shares”) and a newly issued promissory note in
substantially similar form to the promissory note attached hereto as Exhibit
A
(the “New Promissory Note”).
1.1 Delivery.
The Holder
will promptly deliver, or cause to be delivered, to the Company the April 7,
2007 Note duly endorsed by Holder in its full legal name under the following
caption:
“SATISFACTION:
The debt evidenced by this Note has been satisfied in full this the ____day
of
January, 2008.
Promptly
after receipt of the duly endorsed April 2, 2007 Note, the Company will deliver
or cause to be delivered to the Holder at the address set forth on the signature
page of this Agreement (or at such other address provided to the Company in
writing), a certificate or certificates representing the Exchange Shares issued
in the name of the Holder, in such denominations as Holder requests in writing
and the New Promissory Note.
1.2 Waiver.
In
consideration of the Exchange, each Holder hereby waives, releases, acquits
and
forever discharges the Company, and all of its respective subsidiaries,
affiliates, agents, employees, officers, and directors, as well as their
respective heirs, successors, legal and personal representatives, and assigns
of
any and all of them, from and against any and all claims, liabilities, losses,
damages, cause or causes of action of any kind or character whatsoever, whether
liquidated, unliquidated or disputed, asserted or assertable, known or unknown,
in contract or in tort, at law or in equity, which the Holder might now or
hereafter having arising out of or in connection with or relating to the April
2, 2007 Note, including all rights to any and all amounts of accrued and unpaid
interest or other amounts due on or in connection with the April 2, 2007
Note.
1.3 SEC
Reports. The
Company is a reporting company under the Exchange Act of 1934, as amended (the
“Exchange Act”) and has filed with the United States Securities and Exchange
Commission (the “SEC”) all reports required to be filed by the Company under
Section 13 or 15(d) of the Exchange Act (the “SEC Reports”). The Holder has had
the opportunity to review, and has reviewed, all such reports and information
which the Holder deemed material to an investment decision regarding the
Exchange and the investment in the Exchange Shares.
1.4 Section
3(a)(9).
Assuming the accuracy of the representations and warranties of the Holder set
forth in section 3 of this Agreement, the Company acknowledges and agrees that
the Exchange qualifies as an exchange under Section 3(a)(9) of the Securities
Act.
2. Representations
and Warranties of the
Company. The Company represents and warrants to the Holders that:
2.1 Organization
and
Qualification. The Company is duly organized, validly existing and in
good standing under the laws of the State of Delaware.
2.2 Authorization;
Enforcement;
Validity. The Company has the requisite power and authority to enter into
and perform the transactions contemplated by this Agreement.
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2.3 Issuance
of Exchange Shares
and New Promissory Note. The issuance of the Exchange Shares is duly
authorized and, upon issuance in accordance with the terms hereof, the Exchange
Shares shall be validly issued, fully paid and nonassessable shares of the
Common Stock of the Company and the New Promissory Note shall be a valid
obligation of the Company. Assuming the accuracy of each of the representations
and warranties of the Holder contained in Section 3 of this Agreement, the
issuance by the Company of the Exchange Shares and New Promissory Note in
accordance with the terms of this Agreement is exempt from registration under
the Securities Act.
2.4 No
Conflicts. The
execution, delivery and performance of this Agreement by the Company and the
consummation by the Company of the transactions contemplated hereby (including,
without limitation, the issuance of the Exchange Shares) will not result in
a
violation of the articles of incorporation or bylaws of the Company.
2.5 Acknowledgment
Regarding the
Exchange. The Company acknowledges and agrees that the Holder is acting
solely in the capacity of an arm’s length third party with respect to this
Agreement and the transactions contemplated hereby. The Company further
acknowledges the Holder is not acting as a financial advisor or fiduciary of
the
Company (or in any similar capacity) with respect to this Agreement and the
transactions contemplated hereby, and any advice given by the Holder or any
of
its representatives or agents in connection with this Agreement is merely
incidental to the Exchange.
2.6 No
Commission; No Other
Consideration. The Holder has not paid or given, and has not agreed to
pay or give, directly or indirectly, any commission or other remuneration for
soliciting the Exchange. The Exchange Shares and New Promissory Note are being
issued exclusively for the exchange of the April 2, 2007 Note and no other
consideration has or will be paid for the Exchange Shares and New Promissory
Note.
2.7 No
General
Solicitation. Neither the Company, nor any of its affiliates, nor any
person acting on its or their behalf, has engaged in any form of general
solicitation or general advertising (within the meaning of Regulation D) in
connection with the Exchange.
3. Representations
and
Warranties of the Holder. The Holder represents and warrants to the
Company that:
3.1 No
Public Sale or
Distribution. The Holder is acquiring the Exchange Shares and New
Promissory Note in the ordinary course of business for its own account and
not
with a view towards, or for resale in connection with, the public sale or
distribution thereof; provided, however, that by making the representations
herein, the Holder does not agree to hold any of the Exchange Shares or New
Promissory Note for any minimum or other specific term and reserves the right
to
dispose of the Exchange Shares and/or New Promissory Note at any time in
accordance with or pursuant to a registration statement or an exemption from
the
registration requirements of the Securities Act and applicable state securities
laws. The Holder does not presently have any agreement or understanding,
directly or indirectly, with any person to distribute, or transfer any interest
or grant participation rights in, the April 2, 2007 Note, the Exchange Shares
or
the New Promissory Note.
3.2 Accredited
Investor and
Affiliate Status. The Holder is an “accredited investor” as that term is
defined in Rule 501 of Regulation D under the 1933 Act. The Holder is not,
and
has not been, for a period of at least three months prior to the date of this
Agreement (a) an officer or director of the Company, (b) an “affiliate” of the
Company (as defined in Rule 144) (an “Affiliate”) or (c) a “beneficial owner” of
more than 10% of the common stock (as defined for purposes of Rule 13d-3 of
the
Exchange Act).
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3.3 Reliance
on
Exemptions. The Holder understands that the Exchange is being made in
reliance on specific exemptions from the registration requirements of United
States federal and state securities laws and that the Company is relying in
part
upon the truth and accuracy of, and each Holder’s compliance with, the
representations, warranties, agreements, acknowledgments and understandings
of
the Holder set forth herein in order to determine the availability of such
exemptions and the eligibility of each Holder to complete the Exchange and
to
acquire the Exchange Shares and New Promissory Note.
3.4 Information.
The
Holder has been furnished with all materials relating to the business, finances
and operations of the Company and materials relating to the Exchange which
have
been requested by the Holder. The Holder has been afforded the opportunity
to
ask questions of the Company. Neither such inquiries nor any other due diligence
investigations conducted by the Holder or its representatives shall modify,
amend or affect the Holder’s right to rely on the Company’s representations and
warranties contained herein. The Holder acknowledges that all of the documents
filed by the Company with the SEC under Sections 13(a), 14(a) or 15(d) of the
Exchange Act are available to the Holder, and the Holder has not relied on
any
statement of the Company not contained in such documents in connection with
the
Holder’s decision to enter into this Agreement and the Exchange.
3.5 Risk.
The Holder
understands that its investment in the Exchange Shares and New Promissory Note
involves a high degree of risk. The Holder is able to bear the risk of an
investment in the Exchange Shares and New Promissory Note including, without
limitation, the risk of total loss of its investment. The Holder has sought
such
accounting, legal and tax advice as it has considered necessary to make an
informed investment decision with respect to the Exchange. There is no assurance
that the Exchange Shares will continue to be quoted, traded or listed for
trading or quotation on the Nasdaq over-the-counter (“OTC”) market or on any
other organized market or quotation system.
3.6 No
Governmental
Review. The Holder understands that no United States federal or state
agency or any other government or governmental agency has passed on or made
any
recommendation or endorsement in connection with the Exchange or the fairness
or
suitability of the investment in the Exchange Shares or New Promissory Note
nor
have such authorities passed upon or endorsed the merits of the offering of
the
Exchange Shares or New Promissory Note.
3.7 Organization;
Authorization. The Holder has the requisite organizational power and
authority to enter into and perform its obligations under this Agreement.
3.8 Validity;
Enforcement. This Agreement has been duly and validly authorized,
executed and delivered on behalf of the Holder and shall constitute the legal,
valid and binding obligations of the Holder enforceable against the Holder
in
accordance with its terms.
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3.9 Ownership
of the April 2,
2007 Note. Holder is the beneficial owner of the April 2, 2007 Note. The
Holder paid for the April 2, 2007 Note in full, and has continuously held the
April 2, 2007 note since its issuance. The Holder, individually or through
a
nominee, owns the April 2, 2007 Note outright and free and clear of any options,
contracts, agreements, liens, security interests, or other encumbrances.
3.10 Prior
Investment
Experience. The Holder acknowledges that it has prior investment
experience, including investment in non-listed and non-registered securities,
or
has employed the services of an investment advisor, attorney or accountant
to
read all of the documents furnished or made available by the Company to it
and
to evaluate the merits and risks of such an investment on its behalf, and that
it recognizes the highly speculative nature of this investment.
3.11 Tax
Consequences. The
Holder acknowledges that the Company has made no representation regarding the
potential or actual tax consequences for the Holder which will result from
entering into the Agreement and from consummation of the Exchange. The Holder
acknowledges that it bears complete responsibility for obtaining adequate tax
advice regarding the Agreement and the Exchange.
3.12 No
Registration, Review or
Approval. The Holder acknowledges, understands and agrees that the
Exchange Shares and New Promissory Note are being offered and exchanged
hereunder pursuant to (a) an exchange offer exemption under Section 3(a)(9)
of
the Securities Act and (b) (i) a private placement exemption to the registration
provisions of the Securities Act pursuant to Section 4(2) of such Securities
Act
and/or Regulation D promulgated under the Securities Act) and (ii) a similar
exemption to the registration provisions of applicable state securities
laws.
4. Conditions
Precedent to
Obligations of the Company. The obligation of the Company to consummate
the transactions contemplated by this Agreement is subject to the satisfaction
of each of the following conditions, provided that these conditions are for
the
Company’s sole benefit and may be waived by the Company at any time in its sole
discretion by providing the Holder with prior written notice thereof:
4.1 Delivery.
The Holder
shall have delivered to the Company the April 2, 2007 Note, endorsed as set
forth in paragraph 1.1.
4.2 No
Prohibition. No
order of any court, arbitrator, or governmental or regulatory authority shall
be
in effect which purports to enjoin or restrain any of the transactions
contemplated by this Agreement.
5. Conditions
Precedent to
Obligations of the Holder. The obligation of the Holder to consummate the
transactions contemplated by this Agreement is subject to the satisfaction
of
the condition that no order of any court, arbitrator, or governmental or
regulatory authority shall be in effect which purports to enjoin or restrain
any
of the transactions contemplated by this Agreement. Such condition is for the
Holder’s sole benefit and may be waived by the Holder at any time in its sole
discretion by providing the Company with prior written notice thereof.
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6. Governing
Law;
Jurisdiction; Waiver of Jury Trial. This Agreement shall be construed
under the laws of the state of New York, without regard to principles of
conflicts of law or choice of law that would permit or require the application
of the laws of another jurisdiction. The Company and Holder each
hereby agrees that all actions or proceedings arising directly or indirectly
from or in connection with this Agreement shall be litigated only in the Supreme
Court of the State of New York or the United States District Court for the
Southern District of New York located in New York County, New
York. The Company and Holder each consents to the exclusive
jurisdiction and venue of the foregoing courts and consents that any process
or
notice of motion or other application to either of said courts or a judge
thereof may be served inside or outside the State of New York or the Southern
District of New York by certified or registered mail, return receipt requested,
directed to such party at its or his address set forth below (and service so
made shall be deemed “personal service”) or by personal service or in such other
manner as may be permissible under the rules of said courts. THE
COMPANY AND HOLDER EACH HEREBY WAIVES ANY RIGHT TO A JURY TRIAL IN CONNECTION
WITH ANY LITIGATION PURSUANT TO THIS AGREEMENT.
7. Counterparts.
This Agreement may be executed in two or more identical counterparts, all of
which shall be considered one and the same agreement and shall become effective
when counterparts have been signed by each party and delivered to the other
party; provided that a facsimile signature shall be considered due execution
and
shall be binding upon the signatory thereto with the same force and effect
as if
the signature were an original, not a facsimile signature.
8. Headings.
The headings of this Agreement are for convenience of reference and shall not
form part of, or affect the interpretation of, this Agreement.
9. Severability.
If any provision of this Agreement shall be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect the validity
or enforceability of the remainder of this Agreement in that jurisdiction or
the
validity or enforceability of any provision of this Agreement in any other
jurisdiction.
10. Entire
Agreement; Amendments. This Agreement supersedes all other prior oral or
written agreements between the Holder, the Company, their affiliates and persons
acting on their behalf with respect to the matters discussed herein, and this
Agreement and the instruments referenced herein contain the entire understanding
of the parties with respect to the matters covered herein and therein and,
except as specifically set forth herein or therein, neither the Company nor
the
Holder makes any representation, warranty, covenant or undertaking with respect
to such matters. No provision of this Agreement may be amended other than by
an
instrument in writing signed by the Company and the Holder. No provision hereof
may be waived other than by an instrument in writing signed by the party against
whom enforcement is sought.
11. Notices.
Any notices, consents, waivers or other communications required or permitted
to
be given under the terms of this Agreement must be in writing and will be deemed
to have been delivered: (a) upon receipt, when delivered personally; (b) upon
receipt, when sent by facsimile (provided confirmation of transmission is
mechanically or electronically generated and kept on file by the sending party);
or (c) one calendar day (excluding Saturdays, Sundays, and national banking
holidays) after deposit with an overnight courier service, in each case properly
addressed to the party to receive the same.
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The
addresses and facsimile numbers for such communications shall be:
If
to the
Company:
000
XX
0xx Xxxxxx, Xxxxx X
Xxxxxx
Xxxxx, Xxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention:
Jan Norelid
If
to the
Holder:
Xxxxxxxxx
Partners LLC
000
Xxxxxxxx Xxx.
Xxxxxxxx,
XX 00000
Telephone:
000-000-0000
Facsimile:
000-000-0000
Attention:
Xxx Xxxxxxx, Managing Member
or
to
such other address and/or facsimile number and/or to the attention of such
other
person as the recipient party has specified by written notice given to each
other party five (5) days prior to the effectiveness of such change.
12. Successors
and
Assigns. This Agreement shall be binding upon and inure to the benefit of
the parties and their respective successors and assigns, including any
purchasers of the Exchange Shares and/or New Promissory Note. The Holder may
assign some or all of its rights hereunder without the consent of the Company,
in which event such assignee shall be deemed to be the Holder hereunder with
respect to such assigned rights.
13. No
Third Party
Beneficiaries. This Agreement is intended for the benefit of the parties
hereto and their respective permitted successors and assigns, and is not for
the
benefit of, nor may any provision hereof be enforced by, any other
person.
14. Survival
of
Representations. The representations and warranties of the Company and
the Holder contained in sections 2 and 3, respectively, will survive the closing
of the transactions contemplated by this Agreement.
15. Further
Assurances. Each party shall do and perform, or cause to be done and
performed, all such further acts and things, and shall execute and deliver
all
such other agreements, certificates, instruments and documents, as any other
party may reasonably request in order to carry out the intent and accomplish
the
purposes of this Agreement and the consummation of the transactions contemplated
hereby.
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
and delivered by their duly authorized officers as of the date first above
written.
CELSIUS
HOLDINGS, INC., a Nevada corporation
By:
_______/s/ Jan
Norelid 1/22/08_________
Jan
Norelid, Chief Financial Officer
XXXXXXXXX
PARTNERS, LLC
By:
_______/s/ Xxx
Xxxxxxx 1/17/08_________
Xxx
Xxxxxxx, Managing Member
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Exhibit
A
NOTE
|
$105,000.00
|
January
17, 2008
|
FOR
VALUE RECEIVED, Celsius
Holdings, Inc (the “Maker”), a Nevada corporation with a address of 000 XX
0xx
Xxx, Xxxxxx Xxxxx, Xxxxxxx, promises to pay, to Xxxxxxxxx Partners LLC or its
assigns or successors-in-interest (the “Holder”), at 000 Xxxxxxxx Xxx.,
Xxxxxxxx, XX 00000 (or at such other place as may be designated by Holder),
the
principal sum of ONE HUNDRED FIVE THOUSAND Dollars ($105,000) together with
no
interest accruing on the outstanding principal balance. The Note
(this “Note”) is due and payable in 7 equal monthly installments of
FIFTEEN THOUSAND Dollars ($15,000) (“Installments”) in cash by wire transfer of
immediately available funds to the Holder on first Business Day (as defined
below) of each month starting on March 1, 2008 until the last and seventh
payment on September 1, 2008. As
used herein “Business
Day”
means any day other than a Saturday,
Sunday, or other day on which commercial banks located in New
York City are
authorized or required by law to
remain closed.
This
Note
is subject to the following additional provisions:
1. Interest. No
interest shall accrue on the principal of this Note. Notwithstanding anything
contained herein, the principal balance due hereunder shall bear interest,
from
and after the occurrence and during the continuance of a default in the timely
payment of principal or interest hereunder, at the rate of the lower of eighteen
percent (18%) per annum or the highest rate permitted by law, and from and
after
such time interest shall be payable from time to time on demand. The
interest for default shall be calculated using a 365 day year and paid for
the
actual number of days elapsed. Unless otherwise agreed or required by applicable
law, payments will be applied first to any unpaid collection costs, then to
unpaid interest and fees and any remaining amount to principal.
2. Prepayment. The
Maker may pre-pay all or any part of this Note at any time, without cost or
penalty.
3. No
Impairment. The Maker shall not take any action, directly or
indirectly, which would impair the rights of the Holder hereunder.
4. Obligations
Absolute. No provision of this Note shall alter or impair the
right of the Holder to receive payment in full of the Installments when
due.
5. Waivers
of
Demand. The Maker and any other person who signs, guarantees
or endorses this Note, to the extent allowed by law, hereby expressly waives
demand and presentment for payment, notice of nonpayment, protest, notice of
protest, notice of dishonor, notice of acceleration or intent to accelerate,
all
other notices whatsoever and bringing of suit and diligence in taking any action
to collect amounts called for hereunder, and will be directly and primarily
liable for the payment of all sums owing and to be owing hereon, regardless
of
and without any notice, diligence, act or omission as or with respect to the
collection of any amount called for hereunder.
9
6. Replacement
Note. In the event that the Holder notifies the Maker that
this Note has been lost, stolen or destroyed, a replacement Note identical
in
all respects to the original Note (except for the outstanding principal amount,
if different than that shown on the original Note), shall be delivered to the
Holder, provided that the Holder executes and delivers to the Maker an agreement
reasonably satisfactory to the Maker to indemnify the Maker from any loss
incurred by it in connection with this Note.
7. Payment
of
Expenses. The Maker agrees to pay all costs and expenses,
including attorneys’ fees and expenses, which may be incurred by the Holder in
enforcing this Note and/or collecting any amount due under this
Note.
8. Savings
Clause. In case any provision of this Note is held by a court
of competent jurisdiction to be excessive in scope or otherwise invalid or
unenforceable, such provision shall be adjusted rather than voided, if possible,
so that it is enforceable to the maximum extent possible, and the validity
and
enforceability of the remaining provisions of this Note will not in any way
be
affected or impaired thereby. In no event shall the amount of
interest paid hereunder exceed the maximum rate of interest on the unpaid
principal balance hereof allowable by applicable law. If any sum is
collected in excess of the applicable maximum rate, the excess collected shall
be applied to reduce principal of this Note. If the amount of
interest actually collected hereunder is still in excess of the applicable
maximum rate, the interest rate shall be reduced so as not to exceed the maximum
amount allowable under law.
9. Amendment. Neither
this Note nor any term hereof may be amended, waived, discharged or terminated
other than by a written instrument signed by both the Maker and the
Holder.
10. Assignment. The
Holder may without notice transfer or assign to one or more third parties this
Note or any interest herein and may mortgage, encumber or transfer any of its
rights or interests in and to this Note or any part hereof in accordance with
applicable securities laws, rules and regulations. Each assignee,
transferee and mortgagee shall have the right to transfer or assign its interest
in accordance with the prior sentence. Each such assignee, transferee
and mortgagee shall have all of the rights of the Holder under this
Note. This Note shall be binding upon the Maker and the Pledgor and
their respective successors and shall inure to the benefit of the Holder and
its
successors and assigns. The Maker shall not have the right to assign or
otherwise transfer its obligations under this Note.
11. No
Waiver. No failure on the part of the Holder to exercise, and
no delay in exercising any right, remedy or power hereunder shall operate as
a
waiver thereof, nor shall any single or partial exercise by the Holder of any
right, remedy or power hereunder preclude any other or future exercise of any
other right, remedy or power. Each and every right, remedy or power
hereby granted to the Holder or allowed it by law or other agreement shall
be
cumulative and not exclusive of any other, and may be exercised by the Holder
from time to time.
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12. Miscellaneous.
Any
notices, consents, waivers or other communications required or permitted to
be
given to the Maker or the Holder under the terms of this Note must be in writing
and will be deemed to have been delivered: (i) upon receipt, when delivered
personally or sent by verifiable facsimile, unless such delivery is made on
a
day that is not a Business Day, in which case such delivery will be deemed
to be
made on the next succeeding Business Day; or (ii) one Business Day after timely
delivery to an overnight courier service, properly addressed to the intended
recipient at the address set forth on the signature page hereof or such other
address as he or it may designate in a notice delivered in accordance
herewith. Whenever the sense of this Note requires, words in the
singular shall be deemed to include the plural and words in the plural shall
be
deemed to include the singular. Upon any change in the terms of this
Note, and unless otherwise expressly stated in writing, no party who signs
this
Note, whether as maker, guarantor, accommodation maker or endorser, shall be
released from liability. All such parties agree that the Holder may
(1) renew, extend (repeatedly and for any length of time) or modify this Note,
or release any party or any collateral, (2) impair, fail to realize upon or
perfect any security interest the Holder may have from time to time in any
collateral, or (3) take any other action deemed necessary by the Holder, in
each
case without the consent of or notice to anyone and without releasing the Maker
from any liability or obligation hereunder.
13. Choice
of Law and Venue;
Waiver of Jury Trial. This Note shall be construed under the
laws of the state of New York, without regard to principles of conflicts of
law
or choice of law that would permit or require the application of the laws of
another jurisdiction. The Maker hereby agrees that all actions or
proceedings arising directly or indirectly from or in connection with this
Note
shall be litigated only in the Supreme Court of the State of New York or the
United States District Court for the Southern District of New York located
in
New York County, New York. The Maker consents to the exclusive
jurisdiction and venue of the foregoing courts and consents that any process
or
notice of motion or other application to either of said courts or a judge
thereof may be served inside or outside the State of New York or the Southern
District of New York by certified or registered mail, return receipt requested,
directed to the Maker at its or his address set forth on the signature page
below (and service so made shall be deemed “personal service”) or by personal
service or in such other manner as may be permissible under the rules of said
courts. THE MAKER HEREBY WAIVES ANY RIGHT TO A JURY TRIAL IN
CONNECTION WITH ANY LITIGATION PURSUANT TO THIS NOTE.
IN
WITNESS WHEREOF, the Maker
has caused this instrument to be duly executed by an officer thereunto duly
authorized and the Pledgor has executed this instrument in his individual
capacity solely for the purposes specified herein.
MAKER:
Celsius Holdings, Inc
By:
_________________________
Name: Xxxxxxx
X. Xxxxx
Title:
Chief Executive Officer
