In re Celsius Holdings

   
 
 
 
 
 UNITED STATES OF AMERICA 
 Before the 
   SECURITIES AND EXCHANGE COMMISSION 
 
SECURITIES EXCHANGE ACT OF 1934 
Release No. 101168 / September 25, 2024 
                                                               
ADMINISTRATIVE PROCEEDING 
File No. 3-22184 
  
 
 
In the Matter of 
 
Celsius Holdings, Inc., 
 
Respondent. 
 
 
 
ORDER INSTITUTING CEASE-AND-
DESIST PROCEEDINGS PURSUANT TO 
SECTION 21C OF THE SECURITIES 
EXCHANGE ACT OF 1934, MAKING 
FINDINGS, AND IMPOSING A CEASE-
AND-DESIST ORDER  
  
 
 I. 
 The Securities and Exchange Commission (“Commission”) deems it appropriate that 
cease-and-desist proceedings be, and hereby are, instituted pursuant to Section 21C of the 
Securities Exchange Act of 1934 (“Exchange Act”), against Celsius Holdings, Inc. (“Celsius” or 
“Respondent”).   
II. 
 In anticipation of the institution of these proceedings, Respondent has submitted an Offer 
of Settlement (the “Offer”) which the Commission has determined to accept.  Solely for the 
purpose of these proceedings and any other proceedings brought by or on behalf of the 
Commission, or to which the Commission is a party, and without admitting or denying the 
findings herein, except as to the Commission’s jurisdiction over Respondent and the subject 
matter of these proceedings, which are admitted, Respondent consents to the entry of this Order 
Instituting Cease-and-Desist Proceedings Pursuant to Section 21C of the Securities Exchange 
Act of 1934, Making Findings, and Imposing a Cease-and-Desist Order (“Order”), as set forth 
below.   

 
2 
 
III. 
 On the basis of this Order and Respondent’s Offer, the Commission finds
1
 that: 
Summary 
1. These proceedings arise out of violations of the issuer reporting requirements and 
beneficial ownership reporting requirements of the federal securities laws.   
2. Section 16(a) of the Exchange Act and the rules promulgated thereunder require 
officers and directors of a company with a class of equity security registered under Section 12 of the 
Exchange Act, and any beneficial owners of greater than 10% of such class (collectively, 
“insiders”), to file certain reports of securities holdings and transactions.  Section 16(a) was 
motivated by a belief that “the most potent weapon against the abuse of inside information is full 
and prompt publicity” and by a desire “to give investors an idea of the purchases and sales by 
insiders which may in turn indicate their private opinion as to prospects of the company.”  H.R. 
Rep. 73-1383, at 13, 24 (1934).  Reflecting this informational purpose, the obligation to file applies 
irrespective of profits or the filer’s reasons for engaging in the transactions.  The Sarbanes-Oxley 
Act of 2002 and Commission implementing regulations accelerated the reporting deadline for most 
transactions to two business days and mandated that all reports be filed electronically on EDGAR to 
facilitate rapid dissemination to the public. 
3. Reporting issuers are required to disclose in the proxy statement for the issuer’s 
annual meeting, or its annual report, Section 16 reporting delinquencies by its insiders.  Although 
insiders remain responsible for the timeliness and accuracy of their required Section 16(a) reports, 
the Commission has encouraged the practice of many issuers to “help their [officers and directors] 
or submit the [] filings on their behalf . . . [in order] to facilitate accurate and timely filing.”  
Mandated Electronic Filing and Website Posting for Forms 3, 4 and 5, SEC Release No. 34-47809 
(May 7, 2003), 68 Fed. Reg. 25788, 25789 (May 13, 2003). 
4. Since 2017, Respondent has been a reporting issuer and its insiders have been 
required to file Section 16(a) reports.  On numerous occasions, Respondent’s officers and 
directors violated Section 16(a) by failing to timely file required reports.  Respondent failed to 
comply with its disclosure obligations to report such delinquencies.  In addition, Respondent was 
a cause of many of the Section 16(a) violations by its officers and directors as a result of 
Respondent’s negligence in performing certain tasks it voluntarily agreed to undertake in 
connection with the preparation and filing of Section 16(a) reports on their behalf.  
Respondent 
5. Celsius is a Nevada corporation with its principal place of business in Boca Raton, 
Florida.  Celsius common stock is and has been at all relevant times registered with the Commission 
                                                 
1
   The findings herein are made pursuant to Respondent’s Offer of Settlement and are not binding on 
any other person or entity in this or any other proceeding. 

 
3 
 
under Section 12 of the Exchange Act and trades on the NASDAQ (ticker: CELH).  Celsius is 
required to file annual reports on Form 10-K pursuant to Section 13(a) of the Exchange Act and 
Rule 13a-1 thereunder. 
Applicable Legal Framework 
6. Pursuant to Section 16(a) and Rule 16a-3, insiders are required to file initial 
statements of holdings on Form 3 and keep this information current by reporting transactions on 
Forms 4 and 5.  Specifically, within 10 days after becoming an insider, or on or before the effective 
date of the Section 12 registration of the class of equity security, an insider must file a Form 3 report 
disclosing his or her beneficial ownership of all securities of the issuer.  To keep this information 
current, insiders must file Form 4 reports disclosing transactions resulting in a change in beneficial 
ownership within two business days following the execution date of the transaction, except for 
limited types of transactions eligible for deferred reporting.  Transactions required to be reported on 
Form 4 include purchases and sales of securities, exercises and conversions of derivative securities, 
and grants or awards of securities from the issuer.  In addition, insiders are required to file a Form 5 
report within 45 days after the issuer’s fiscal year-end to report any transactions or holdings that 
should have been, but were not, reported on Form 3 or 4 during the issuer’s most recent fiscal year 
and any transactions eligible for deferred reporting (unless the corporate insider has previously 
reported all such transactions).  Insiders are required to file the reports electronically on EDGAR.  
There is no state of mind requirement for violations of Section 16(a) and the rules thereunder.
2
    
7. Section 13(a) of the Exchange Act requires issuers that have securities registered 
pursuant to Section 12 of the Exchange Act to file such periodic and other reports as the 
Commission may prescribe and in conformity with such rules as the Commission may promulgate.   
Exchange Act Rule 13a-1 requires such issuers to file annual reports with the Commission 
containing specified information.  In 1991, the Commission adopted Item 405 of Regulation S-K to 
help address compliance with Section 16(a) by requiring reporting issuers to disclose in annual 
proxy and information statements or annual reports information regarding delinquent Section 
16(a) filings by insiders.
3
   
                                                 
2
   See, e.g., SEC v. e-Smart Technologies, Inc., 82 F. Supp. 3d 97, 104 (D.D.C. 2015) (scienter is not required 
to establish a violation of Section 16(a) of the Exchange Act); cf. Oppenheimer & Co., Inc., 47 SEC 286, 1980 WL 
26901, at *2 (May 19, 1980) (Commission opinion) (“We have previously held that the failure to make a required 
report, even though inadvertent, constitutes a willful violation”); SEC Release No. 34-47809, 68 Fed. Reg. at 25792 
(noting that an issuer’s eligibility for temporary relief from disclosing Forms 4 filed one business day late by its 
insiders “does not change the fact that any Form 3, 4 or 5 filed later than the applicable due date violates Section 
16(a)”) (emphasis added).  Negligence is sufficient to establish liability for causing such violations.  See KPMG 
Peat Marwick LLP, 74 SEC Docket 357, 2001 WL 47245, at *19 (Jan. 19, 2001) (Commission opinion) 
(“[N]egligence is sufficient to establish ‘causing’ liability under Exchange Act Section 21C(a) ... in cases in which a 
person is alleged to ‘cause’ a primary violation that does not require scienter.”). 
3
   Ownership Reports and Trading by Officers, Directors and Principal Security Holders, SEC Release 34-
28869, 56 Fed. Reg. 7242, 7259-60 (Feb. 21, 1991); 17 C.F.R. § 229.405.  The Commission amended Item 405 in 
FAST Act Modernization and Simplification of Regulation S-K, SEC Release 33-10618 (Mar. 20, 2019), 84 Fed. 
 

 
4 
 
8. Item 405 of Regulation S-K specifically requires an issuer to disclose any late 
filing or known failure by an insider to file a report required by Section 16(a).  In determining 
whether such disclosure is required, the issuer may rely on a review of the Forms 3 and 4 filed 
during the most recent fiscal year, and Forms 5 filed with respect to the most recent fiscal year, 
by the issuer’s insiders.  Section 16(a) reports are posted on EDGAR, and thus are readily 
available to issuers to evaluate their timeliness.  A “known” failure to file includes, but is not 
limited to, a failure to file a Form 3, which is required of all insiders, and a failure to file a Form 
5 in the absence of a written representation that no Form 5 is required, unless the issuer 
otherwise knows that no Form 5 is required.  The Item 405 disclosure of any late filings or 
known failures to file must (i) identify by name each insider who failed to file on a timely basis 
Forms 3, 4, or 5 during the most recent fiscal year or prior fiscal years and (ii) set forth the 
number of late reports, the number of late-reported transactions, and any known failure to file.  
An issuer does not have an obligation under Item 405 to research or make inquiry regarding 
delinquent Section 16(a) filings beyond the review specified in the item.   
9. An issuer that files annual reports with the Commission on Form 10-K, such as 
Respondent, is required to include the Item 405 disclosure in its Form 10-K, or incorporate by 
reference to its Form 10-K the Item 405 disclosure made in the issuer’s definitive proxy or 
information statement for its annual meeting of shareholders for the election of directors, if that 
definitive proxy or information statement is filed with the Commission not later than 120 days 
after the end of the fiscal year covered by the Form 10-K.  To the extent disclosure is required by 
Item 405, materially false, misleading, or omitted Item 405 disclosures constitute a violation of 
Section 13(a) of the Exchange Act and Rule 13a-1.  No showing of scienter is necessary to 
establish a violation of Section 13(a).
4
   
Respondent Failed to Comply with Item 405 Disclosure Requirements 
10. As an issuer required to file annual reports on Form 10-K, Respondent is and has 
been at all relevant times required to disclose information concerning delinquent Section 16(a) 
filings by its insiders to the extent required by Item 405 of Regulation S-K.   
11. Respondent failed to do so for multiple fiscal years, including:  
a. Respondent failed to make the required Item 405 disclosure for its 2018 
fiscal year, improperly stating that “based on our review of such reports, during the year ended 
December 31, 2018 the Reporting Persons complied with all applicable Section 16(a) reporting 
requirements, except that [Director 1]’s Form 3 was not filed until July 26, 2018 due to an 
administrative oversight.”  (Celsius Form 10-K filed on March 14, 2019.)  However, during such 
fiscal year, multiple Celsius insiders filed numerous untimely Form 4 reports, which Respondent 
failed to disclose as required.  Respondent was required to review the forms filed and identify by 
                                                 
Reg. 12674 (Apr. 2, 2019), which among other things, permits an issuer to omit the disclosure if there are no Section 
16(a) delinquencies to report. 
 
4
   SEC v. McNulty, 137 F.3d 732, 740-41 (2d Cir. 1998).     

 
5 
 
name each insider who failed to file on a timely basis and set forth the number of late reports and 
the number of transactions that were not reported on a timely basis, which Respondent failed to 
do. 
b. Respondent failed to make the required Item 405 disclosure for its 2019 
fiscal year, improperly stating that “based on our review of such reports, during the year ended 
December 31, 2019 the Reporting Persons complied with all applicable Section 16(a) reporting 
requirements.”  (Celsius Form 10-K filed on March 12, 2020.)  In fact, during such fiscal year, 
multiple Celsius officers and directors filed numerous untimely Form 4 reports, which 
Respondent was required to disclose pursuant to Item 405.  Respondent was required to review 
the forms filed and identify by name each insider who failed to file on a timely basis and set 
forth the number of late reports and the number of transactions that were not reported on a timely 
basis, which Respondent failed to do. 
c. Respondent failed to make the required Item 405 disclosure for its 2020 
fiscal year, improperly stating that “based on our review of such reports, during the year ended 
December 31, 2020 the Reporting Persons complied with all applicable Section 16(a) reporting 
requirements.”  (Celsius Form 10-K filed on March 11, 2021.)  In fact, during such fiscal year, 
multiple Celsius insiders filed numerous untimely required Form 4 reports and one new director 
filed an untimely required Form 3, which Respondent was required to disclose pursuant to Item 
405.  Respondent was required to review the forms filed and identify by name each insider who 
failed to file on a timely basis and set forth the number of late reports and the number of 
transactions that were not reported on a timely basis, which Respondent failed to do. 
d. Respondent failed to make the required Item 405 disclosure for its 2021 
fiscal year, improperly omitting any disclosure.  An issuer may only omit the disclosure if there 
are no Section 16(a) delinquencies to report.  In fact, during such fiscal year, multiple Celsius 
insiders filed numerous untimely required Section 16(a) reports and four new directors filed 
untimely required Forms 3, which Respondent was required to disclose pursuant to Item 405.  
Respondent was required to review the forms filed and identify by name each insider who failed 
to file on a timely basis and set forth the number of late reports and the number of transactions 
that were not reported on a timely basis, which Respondent failed to do.   
12. As a result of the conduct described above, Respondent failed to comply with its 
disclosure obligation to the extent required by Item 405 and violated Section 13(a) of the 
Exchange Act and Rule 13a-1 thereunder. 
Respondent Was a Cause of Certain Violations of Section 16(a) by its Insiders 
13. Although the Commission encourages the practice of many issuers to assist insiders 
in complying with Section 16(a) filing requirements, issuers who voluntarily accept certain 

 
6 
 
responsibilities and then act negligently in the performance of those tasks may be liable as a cause 
of Section 16(a) violations by insiders.   
14. Since at least 2018, Respondent has voluntarily agreed with its officers and 
directors to perform certain tasks in connection with the filing of Section 16(a) reports on their 
behalf, including the preparation and filing of all such reports for which Respondent had timely 
notification of the required information concerning the transactions.  However, on multiple 
occasions, Respondent acted negligently in its performance of such tasks and was a cause of 
Celsius’s officers and directors failing to file Section 16(a) reports on a timely basis.  The 
procedures and practices employed by Respondent were insufficient to the extent that those 
practices resulted in the recurrent failure to meet the two-business day filing deadline.   
15. For example, between February 2018 and August 2023, Respondent's officers and 
directors in the aggregate filed more than 100 untimely Forms 4 to report transactions related to 
award grants, vesting, exercises of restricted stock units and options, and open-market purchases or 
sales.  For virtually all of these late-reported transactions, Respondent had received timely 
notification of or otherwise possessed the necessary information for such filings but failed to 
prepare and file the reports within the required time frame.  In addition, for many of these untimely 
Forms 4, Respondent improperly marked certain transactions, such as stock and option awards, with 
the code indicating the transaction was “voluntarily reported earlier than required” when in fact such 
transactions were required to be reported on Form 4 within two business days. 
16. As a result of the conduct described above, Respondent was a cause of certain 
violations of Section 16(a) of the Exchange Act and Rule 16a-3 thereunder by Respondent’s 
insiders.   
Respondent’s Remedial Efforts 
17. In determining to accept the Offer, the Commission considered certain remedial 
acts undertaken by Respondent and cooperation afforded to Commission staff. 
IV. 
 
In view of the foregoing, the Commission deems it appropriate to impose the sanctions 
agreed to in Respondent’s Offer. 
 
 Accordingly, it is hereby ORDERED that: 
 
 A. Pursuant to Section 21C of the Exchange Act, Respondent Celsius cease and desist 
from committing or causing any violations and any future violations of Sections 13(a) and 16(a) of 
the Exchange Act and Rules 13a-1 and 16a-3 promulgated thereunder.   
 
B. Respondent shall, within 14 days of the entry of this Order, pay a civil money 
penalty in the amount of $200,000 to the Securities and Exchange Commission, for transfer to 

 
7 
 
the general fund of the United States Treasury, subject to Exchange Act Section 21F(g)(3).  If 
timely payment is not made, additional interest shall accrue pursuant to 31 U.S.C. § 3717.  
Payment must be made in one of the following ways:   
(1)  Respondent may transmit payment electronically to the Commission, which will 
provide detailed ACH transfer/Fedwire instructions upon request;  
 
(2)  Respondent may make direct payment from a bank account via Pay.gov through 
the SEC website at http://www.sec.gov/about/offices/ofm.htm; or  
 
(3)  Respondent may pay by certified check, bank cashier’s check, or United States 
postal money order, made payable to the Securities and Exchange Commission and hand-
delivered or mailed to:  
 
Enterprise Services Center 
Accounts Receivable Branch 
HQ Bldg., Room 181, AMZ-341 
6500 South MacArthur Boulevard 
Oklahoma City, OK 73169 
 
Payments by check or money order must be accompanied by a cover letter identifying 
Celsius Holdings, Inc. as a Respondent in these proceedings, and the file number of these 
proceedings; a copy of the cover letter and check or money order must be sent to Thomas Smith, 
Associate Regional Director, Division of Enforcement, Securities and Exchange Commission, 
100 Pearl Street, Suite 20-100, New York, NY 10004.   
 

 
8 
 
C. Amounts ordered to be paid as civil money penalties pursuant to this Order shall 
be treated as penalties paid to the government for all purposes, including all tax purposes.  To 
preserve the deterrent effect of the civil penalty, Respondent agrees that in any Related Investor 
Action, it shall not argue that it is entitled to, nor shall it benefit by, offset or reduction of any 
award of compensatory damages by the amount of any part of Respondent’s payment of a civil 
penalty in this action (“Penalty Offset”).  If the court in any Related Investor Action grants such 
a Penalty Offset, Respondent agrees that it shall, within 30 days after entry of a final order 
granting the Penalty Offset, notify the Commission’s counsel in this action and pay the amount 
of the Penalty Offset to the Securities and Exchange Commission.  Such a payment shall not be 
deemed an additional civil penalty and shall not be deemed to change the amount of the civil 
penalty imposed in this proceeding.  For purposes of this paragraph, a “Related Investor Action” 
means a private damages action brought against Respondent by or on behalf of one or more 
investors based on substantially the same facts as alleged in the Order instituted by the 
Commission in this proceeding. 
 
 By the Commission. 
 
 
       Vanessa A. Countryman 
       Secretary 

UNITED STATES OF AMERICA 

 Before the 

   SECURITIES AND EXCHANGE COMMISSION 

 

SECURITIES EXCHANGE ACT OF 1934 

Release No. 101168 / September 25, 2024 

                                                               

ADMINISTRATIVE PROCEEDING 

File No. 3-22184 

  

 

 

In the Matter of 

 

Celsius Holdings, Inc., 

 

Respondent. 

 

 

 

ORDER INSTITUTING CEASE-AND-

DESIST PROCEEDINGS PURSUANT TO 

SECTION 21C OF THE SECURITIES 

EXCHANGE ACT OF 1934, MAKING 

FINDINGS, AND IMPOSING A CEASE-

AND-DESIST ORDER  

  

 

 I. 

 The Securities and Exchange Commission (“Commission”) deems it appropriate that 

cease-and-desist proceedings be, and hereby are, instituted pursuant to Section 21C of the 

Securities Exchange Act of 1934 (“Exchange Act”), against Celsius Holdings, Inc. (“Celsius” or 

“Respondent”).   

II. 

 In anticipation of the institution of these proceedings, Respondent has submitted an Offer 

of Settlement (the “Offer”) which the Commission has determined to accept.  Solely for the 

purpose of these proceedings and any other proceedings brought by or on behalf of the 

Commission, or to which the Commission is a party, and without admitting or denying the 

findings herein, except as to the Commission’s jurisdiction over Respondent and the subject 

matter of these proceedings, which are admitted, Respondent consents to the entry of this Order 

Instituting Cease-and-Desist Proceedings Pursuant to Section 21C of the Securities Exchange 

Act of 1934, Making Findings, and Imposing a Cease-and-Desist Order (“Order”), as set forth 

below.   



 

2 

 

III. 

 On the basis of this Order and Respondent’s Offer, the Commission finds1 that: 

Summary 

1. These proceedings arise out of violations of the issuer reporting requirements and 

beneficial ownership reporting requirements of the federal securities laws.   

2. Section 16(a) of the Exchange Act and the rules promulgated thereunder require 

officers and directors of a company with a class of equity security registered under Section 12 of the 

Exchange Act, and any beneficial owners of greater than 10% of such class (collectively, 

“insiders”), to file certain reports of securities holdings and transactions.  Section 16(a) was 

motivated by a belief that “the most potent weapon against the abuse of inside information is full 

and prompt publicity” and by a desire “to give investors an idea of the purchases and sales by 

insiders which may in turn indicate their private opinion as to prospects of the company.”  H.R. 

Rep. 73-1383, at 13, 24 (1934).  Reflecting this informational purpose, the obligation to file applies 

irrespective of profits or the filer’s reasons for engaging in the transactions.  The Sarbanes-Oxley 

Act of 2002 and Commission implementing regulations accelerated the reporting deadline for most 

transactions to two business days and mandated that all reports be filed electronically on EDGAR to 

facilitate rapid dissemination to the public. 

3. Reporting issuers are required to disclose in the proxy statement for the issuer’s 

annual meeting, or its annual report, Section 16 reporting delinquencies by its insiders.  Although 

insiders remain responsible for the timeliness and accuracy of their required Section 16(a) reports, 

the Commission has encouraged the practice of many issuers to “help their [officers and directors] 

or submit the [] filings on their behalf . . . [in order] to facilitate accurate and timely filing.”  

Mandated Electronic Filing and Website Posting for Forms 3, 4 and 5, SEC Release No. 34-47809 

(May 7, 2003), 68 Fed. Reg. 25788, 25789 (May 13, 2003). 

4. Since 2017, Respondent has been a reporting issuer and its insiders have been 

required to file Section 16(a) reports.  On numerous occasions, Respondent’s officers and 

directors violated Section 16(a) by failing to timely file required reports.  Respondent failed to 

comply with its disclosure obligations to report such delinquencies.  In addition, Respondent was 

a cause of many of the Section 16(a) violations by its officers and directors as a result of 

Respondent’s negligence in performing certain tasks it voluntarily agreed to undertake in 

connection with the preparation and filing of Section 16(a) reports on their behalf.  

Respondent 

5. Celsius is a Nevada corporation with its principal place of business in Boca Raton, 

Florida.  Celsius common stock is and has been at all relevant times registered with the Commission 

                                                 
1   The findings herein are made pursuant to Respondent’s Offer of Settlement and are not binding on 

any other person or entity in this or any other proceeding. 



 

3 

 

under Section 12 of the Exchange Act and trades on the NASDAQ (ticker: CELH).  Celsius is 

required to file annual reports on Form 10-K pursuant to Section 13(a) of the Exchange Act and 

Rule 13a-1 thereunder. 

Applicable Legal Framework 

6. Pursuant to Section 16(a) and Rule 16a-3, insiders are required to file initial 

statements of holdings on Form 3 and keep this information current by reporting transactions on 

Forms 4 and 5.  Specifically, within 10 days after becoming an insider, or on or before the effective 

date of the Section 12 registration of the class of equity security, an insider must file a Form 3 report 

disclosing his or her beneficial ownership of all securities of the issuer.  To keep this information 

current, insiders must file Form 4 reports disclosing transactions resulting in a change in beneficial 

ownership within two business days following the execution date of the transaction, except for 

limited types of transactions eligible for deferred reporting.  Transactions required to be reported on 

Form 4 include purchases and sales of securities, exercises and conversions of derivative securities, 

and grants or awards of securities from the issuer.  In addition, insiders are required to file a Form 5 

report within 45 days after the issuer’s fiscal year-end to report any transactions or holdings that 

should have been, but were not, reported on Form 3 or 4 during the issuer’s most recent fiscal year 

and any transactions eligible for deferred reporting (unless the corporate insider has previously 

reported all such transactions).  Insiders are required to file the reports electronically on EDGAR.  

There is no state of mind requirement for violations of Section 16(a) and the rules thereunder.2    

7. Section 13(a) of the Exchange Act requires issuers that have securities registered 

pursuant to Section 12 of the Exchange Act to file such periodic and other reports as the 

Commission may prescribe and in conformity with such rules as the Commission may promulgate.   

Exchange Act Rule 13a-1 requires such issuers to file annual reports with the Commission 

containing specified information.  In 1991, the Commission adopted Item 405 of Regulation S-K to 

help address compliance with Section 16(a) by requiring reporting issuers to disclose in annual 

proxy and information statements or annual reports information regarding delinquent Section 

16(a) filings by insiders.3   

                                                 
2   See, e.g., SEC v. e-Smart Technologies, Inc., 82 F. Supp. 3d 97, 104 (D.D.C. 2015) (scienter is not required 

to establish a violation of Section 16(a) of the Exchange Act); cf. Oppenheimer & Co., Inc., 47 SEC 286, 1980 WL 

26901, at *2 (May 19, 1980) (Commission opinion) (“We have previously held that the failure to make a required 

report, even though inadvertent, constitutes a willful violation”); SEC Release No. 34-47809, 68 Fed. Reg. at 25792 

(noting that an issuer’s eligibility for temporary relief from disclosing Forms 4 filed one business day late by its 

insiders “does not change the fact that any Form 3, 4 or 5 filed later than the applicable due date violates Section 

16(a)”) (emphasis added).  Negligence is sufficient to establish liability for causing such violations.  See KPMG 

Peat Marwick LLP, 74 SEC Docket 357, 2001 WL 47245, at *19 (Jan. 19, 2001) (Commission opinion) 

(“[N]egligence is sufficient to establish ‘causing’ liability under Exchange Act Section 21C(a) … in cases in which a 

person is alleged to ‘cause’ a primary violation that does not require scienter.”). 

3   Ownership Reports and Trading by Officers, Directors and Principal Security Holders, SEC Release 34-

28869, 56 Fed. Reg. 7242, 7259-60 (Feb. 21, 1991); 17 C.F.R. § 229.405.  The Commission amended Item 405 in 

FAST Act Modernization and Simplification of Regulation S-K, SEC Release 33-10618 (Mar. 20, 2019), 84 Fed. 

 



 

4 

 

8. Item 405 of Regulation S-K specifically requires an issuer to disclose any late 

filing or known failure by an insider to file a report required by Section 16(a).  In determining 

whether such disclosure is required, the issuer may rely on a review of the Forms 3 and 4 filed 

during the most recent fiscal year, and Forms 5 filed with respect to the most recent fiscal year, 

by the issuer’s insiders.  Section 16(a) reports are posted on EDGAR, and thus are readily 

available to issuers to evaluate their timeliness.  A “known” failure to file includes, but is not 

limited to, a failure to file a Form 3, which is required of all insiders, and a failure to file a Form 

5 in the absence of a written representation that no Form 5 is required, unless the issuer 

otherwise knows that no Form 5 is required.  The Item 405 disclosure of any late filings or 

known failures to file must (i) identify by name each insider who failed to file on a timely basis 

Forms 3, 4, or 5 during the most recent fiscal year or prior fiscal years and (ii) set forth the 

number of late reports, the number of late-reported transactions, and any known failure to file.  

An issuer does not have an obligation under Item 405 to research or make inquiry regarding 

delinquent Section 16(a) filings beyond the review specified in the item.   

9. An issuer that files annual reports with the Commission on Form 10-K, such as 

Respondent, is required to include the Item 405 disclosure in its Form 10-K, or incorporate by 

reference to its Form 10-K the Item 405 disclosure made in the issuer’s definitive proxy or 

information statement for its annual meeting of shareholders for the election of directors, if that 

definitive proxy or information statement is filed with the Commission not later than 120 days 

after the end of the fiscal year covered by the Form 10-K.  To the extent disclosure is required by 

Item 405, materially false, misleading, or omitted Item 405 disclosures constitute a violation of 

Section 13(a) of the Exchange Act and Rule 13a-1.  No showing of scienter is necessary to 

establish a violation of Section 13(a).4   

Respondent Failed to Comply with Item 405 Disclosure Requirements 

10. As an issuer required to file annual reports on Form 10-K, Respondent is and has 

been at all relevant times required to disclose information concerning delinquent Section 16(a) 

filings by its insiders to the extent required by Item 405 of Regulation S-K.   

11. Respondent failed to do so for multiple fiscal years, including:  

a. Respondent failed to make the required Item 405 disclosure for its 2018 

fiscal year, improperly stating that “based on our review of such reports, during the year ended 

December 31, 2018 the Reporting Persons complied with all applicable Section 16(a) reporting 

requirements, except that [Director 1]’s Form 3 was not filed until July 26, 2018 due to an 

administrative oversight.”  (Celsius Form 10-K filed on March 14, 2019.)  However, during such 

fiscal year, multiple Celsius insiders filed numerous untimely Form 4 reports, which Respondent 

failed to disclose as required.  Respondent was required to review the forms filed and identify by 

                                                 
Reg. 12674 (Apr. 2, 2019), which among other things, permits an issuer to omit the disclosure if there are no Section 

16(a) delinquencies to report. 

 
4   SEC v. McNulty, 137 F.3d 732, 740-41 (2d Cir. 1998).     



 

5 

 

name each insider who failed to file on a timely basis and set forth the number of late reports and 

the number of transactions that were not reported on a timely basis, which Respondent failed to 

do. 

b. Respondent failed to make the required Item 405 disclosure for its 2019 

fiscal year, improperly stating that “based on our review of such reports, during the year ended 

December 31, 2019 the Reporting Persons complied with all applicable Section 16(a) reporting 

requirements.”  (Celsius Form 10-K filed on March 12, 2020.)  In fact, during such fiscal year, 

multiple Celsius officers and directors filed numerous untimely Form 4 reports, which 

Respondent was required to disclose pursuant to Item 405.  Respondent was required to review 

the forms filed and identify by name each insider who failed to file on a timely basis and set 

forth the number of late reports and the number of transactions that were not reported on a timely 

basis, which Respondent failed to do. 

c. Respondent failed to make the required Item 405 disclosure for its 2020 

fiscal year, improperly stating that “based on our review of such reports, during the year ended 

December 31, 2020 the Reporting Persons complied with all applicable Section 16(a) reporting 

requirements.”  (Celsius Form 10-K filed on March 11, 2021.)  In fact, during such fiscal year, 

multiple Celsius insiders filed numerous untimely required Form 4 reports and one new director 

filed an untimely required Form 3, which Respondent was required to disclose pursuant to Item 

405.  Respondent was required to review the forms filed and identify by name each insider who 

failed to file on a timely basis and set forth the number of late reports and the number of 

transactions that were not reported on a timely basis, which Respondent failed to do. 

d. Respondent failed to make the required Item 405 disclosure for its 2021 

fiscal year, improperly omitting any disclosure.  An issuer may only omit the disclosure if there 

are no Section 16(a) delinquencies to report.  In fact, during such fiscal year, multiple Celsius 

insiders filed numerous untimely required Section 16(a) reports and four new directors filed 

untimely required Forms 3, which Respondent was required to disclose pursuant to Item 405.  

Respondent was required to review the forms filed and identify by name each insider who failed 

to file on a timely basis and set forth the number of late reports and the number of transactions 

that were not reported on a timely basis, which Respondent failed to do.   

12. As a result of the conduct described above, Respondent failed to comply with its 

disclosure obligation to the extent required by Item 405 and violated Section 13(a) of the 

Exchange Act and Rule 13a-1 thereunder. 

Respondent Was a Cause of Certain Violations of Section 16(a) by its Insiders 

13. Although the Commission encourages the practice of many issuers to assist insiders 

in complying with Section 16(a) filing requirements, issuers who voluntarily accept certain 



 

6 

 

responsibilities and then act negligently in the performance of those tasks may be liable as a cause 

of Section 16(a) violations by insiders.   

14. Since at least 2018, Respondent has voluntarily agreed with its officers and 

directors to perform certain tasks in connection with the filing of Section 16(a) reports on their 

behalf, including the preparation and filing of all such reports for which Respondent had timely 

notification of the required information concerning the transactions.  However, on multiple 

occasions, Respondent acted negligently in its performance of such tasks and was a cause of 

Celsius’s officers and directors failing to file Section 16(a) reports on a timely basis.  The 

procedures and practices employed by Respondent were insufficient to the extent that those 

practices resulted in the recurrent failure to meet the two-business day filing deadline.   

15. For example, between February 2018 and August 2023, Respondent's officers and 

directors in the aggregate filed more than 100 untimely Forms 4 to report transactions related to 

award grants, vesting, exercises of restricted stock units and options, and open-market purchases or 

sales.  For virtually all of these late-reported transactions, Respondent had received timely 

notification of or otherwise possessed the necessary information for such filings but failed to 

prepare and file the reports within the required time frame.  In addition, for many of these untimely 

Forms 4, Respondent improperly marked certain transactions, such as stock and option awards, with 

the code indicating the transaction was “voluntarily reported earlier than required” when in fact such 

transactions were required to be reported on Form 4 within two business days. 

16. As a result of the conduct described above, Respondent was a cause of certain 

violations of Section 16(a) of the Exchange Act and Rule 16a-3 thereunder by Respondent’s 

insiders.   

Respondent’s Remedial Efforts 

17. In determining to accept the Offer, the Commission considered certain remedial 

acts undertaken by Respondent and cooperation afforded to Commission staff. 

IV. 

 

In view of the foregoing, the Commission deems it appropriate to impose the sanctions 

agreed to in Respondent’s Offer. 

 

 Accordingly, it is hereby ORDERED that: 

 

 A. Pursuant to Section 21C of the Exchange Act, Respondent Celsius cease and desist 

from committing or causing any violations and any future violations of Sections 13(a) and 16(a) of 

the Exchange Act and Rules 13a-1 and 16a-3 promulgated thereunder.   

 

B. Respondent shall, within 14 days of the entry of this Order, pay a civil money 

penalty in the amount of $200,000 to the Securities and Exchange Commission, for transfer to 



 

7 

 

the general fund of the United States Treasury, subject to Exchange Act Section 21F(g)(3).  If 

timely payment is not made, additional interest shall accrue pursuant to 31 U.S.C. § 3717.  

Payment must be made in one of the following ways:   

(1)  Respondent may transmit payment electronically to the Commission, which will 

provide detailed ACH transfer/Fedwire instructions upon request;  

 

(2)  Respondent may make direct payment from a bank account via Pay.gov through 

the SEC website at http://www.sec.gov/about/offices/ofm.htm; or  

 

(3)  Respondent may pay by certified check, bank cashier’s check, or United States 

postal money order, made payable to the Securities and Exchange Commission and hand-

delivered or mailed to:  

 

Enterprise Services Center 

Accounts Receivable Branch 

HQ Bldg., Room 181, AMZ-341 

6500 South MacArthur Boulevard 

Oklahoma City, OK 73169 

 

Payments by check or money order must be accompanied by a cover letter identifying 

Celsius Holdings, Inc. as a Respondent in these proceedings, and the file number of these 

proceedings; a copy of the cover letter and check or money order must be sent to Thomas Smith, 

Associate Regional Director, Division of Enforcement, Securities and Exchange Commission, 

100 Pearl Street, Suite 20-100, New York, NY 10004.   

 



 

8 

 

C. Amounts ordered to be paid as civil money penalties pursuant to this Order shall 

be treated as penalties paid to the government for all purposes, including all tax purposes.  To 

preserve the deterrent effect of the civil penalty, Respondent agrees that in any Related Investor 

Action, it shall not argue that it is entitled to, nor shall it benefit by, offset or reduction of any 

award of compensatory damages by the amount of any part of Respondent’s payment of a civil 

penalty in this action (“Penalty Offset”).  If the court in any Related Investor Action grants such 

a Penalty Offset, Respondent agrees that it shall, within 30 days after entry of a final order 

granting the Penalty Offset, notify the Commission’s counsel in this action and pay the amount 

of the Penalty Offset to the Securities and Exchange Commission.  Such a payment shall not be 

deemed an additional civil penalty and shall not be deemed to change the amount of the civil 

penalty imposed in this proceeding.  For purposes of this paragraph, a “Related Investor Action” 

means a private damages action brought against Respondent by or on behalf of one or more 

investors based on substantially the same facts as alleged in the Order instituted by the 

Commission in this proceeding. 

 

 By the Commission. 

 

 

       Vanessa A. Countryman 

       Secretary 


	Respondent