UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(Mark One)
☒
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2020
or
☐
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
Commission File Number: 001-33852
VirnetX Holding Corporation
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization)
77-0390628
(I.R.S. Employer Identification No.)
308 Dorla Court, Suite 206
Zephyr Cove, Nevada
(Address of principal executive offices)
89448
(Zip Code)
Registrant’s telephone number, including area code: 775-548-1785
Securities registered pursuant to Section 12(b) of the Act:
Title of each class
Trading Symbol(s)
Common Stock, par value $0.0001 per share
VHC
Name of each exchange on which
registered
NYSE
Securities registered pursuant to section 12(g) of the Act:
None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ☐ No ☒
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes ☐ No ☒
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes ☒ No ☐
Indicate by check mark whether the registrant has submitted electronically, every Interactive Data File required to be submitted pursuant to Rule 405 of
Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files).
Yes ☒ No ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an
emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth
company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer ☐
Emerging growth company ☐
Accelerated filer ☐
Smaller reporting company ☒
Non-accelerated filer ☒
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. ☐
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal
control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared
or issued its audit report. ☒
The aggregate market value of the voting and non-voting common equity held by non-affiliates of the Registrant as of June 30, 2020, was
$412,305,224 based upon the closing price of the common shares of the Registrant on June 30, 2020. This calculation does not reflect a determination that
certain persons are affiliates of the Registrant for any other purpose.
Indicate by check mark whether the Registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ☐ No ☒
71,058,570 shares of Registrant’s Common Stock were outstanding as of March 11, 2021.
DOCUMENTS INCORPORATED BY REFERENCE
The information required by Part III of this Annual Report on Form 10-K, to the extent not set forth herein, is incorporated by reference from the
Registrant’s definitive proxy statement to be filed with the Securities and Exchange Commission not later than 120 days after December 31, 2020 relating
to the Registrant’s 2021 Annual Meeting of Stockholders.
Business
Risk Factors
Unresolved Staff Comments
Properties
Legal Proceedings
Mine Safety Disclosure
INDEX
PART I
PART II
Market for the Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity
Securities
Selected Financial Data
Management’s Discussion and Analysis of Financial Condition and Results of Operations
Quantitative and Qualitative Disclosures about Market Risk
Financial Statements and Supplementary Data
Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
Controls and Procedures
Other Information
PART III
Directors, Executive Officers and Corporate Governance
Executive Compensation
Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
Certain Relationships and Related Transactions, and Director Independence
Principal Accountant Fees and Services
Item 1.
Item 1A.
Item 1B.
Item 2.
Item 3.
Item 4.
Item 5.
Item 6.
Item 7.
Item 7A.
Item 8.
Item 9.
Item 9A.
Item 9B.
Item 10.
Item 11.
Item 12.
Item 13.
Item 14.
Item 15.
Exhibits and Financial Statement Schedules
PART IV
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SPECIAL NOTE REGARDING FORWARD LOOKING STATEMENTS
We have included or incorporated by reference in this Annual Report on Form 10-K (including in the section entitled Management’s Discussion and
Analysis of Financial Condition and Results of Operations), and from time to time we may make statements that may constitute “forward-looking
statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as
amended. These forward-looking statements are based upon our current expectations, estimates, assumptions, and beliefs concerning future events and
conditions and may discuss, among other things, anticipated future performance (including sales and earnings), expected growth, future business plans and
costs and the impact of potential and ongoing litigation. Any statement that is not historical in nature is a forward-looking statement and may be identified
by the use of words and phrases such as “anticipates,” “believes,” “estimates,” “expects,” “intends,” “plans,” “predicts,” “projects,” “will be,” “will
continue,” “will likely result in,” and similar expressions. These statements include our beliefs and statements regarding general industry and market
conditions and growth rates, as well as general domestic and international economic conditions. Readers are cautioned not to place undue reliance on
forward-looking statements. Forward-looking statements are necessarily subject to risks, uncertainties, and other factors, many of which are outside our
control, which could cause actual results to differ materially from such statements and from our historical results and experience. These risks, uncertainties
and other factors include, but are not limited to those described in Item 1A - Risk Factors of this Quarterly Report and elsewhere in this Quarterly Report
and those described from time to time in our future reports filed with the Securities and Exchange Commission. Readers are cautioned that it is not possible
to predict or identify all the risks, uncertainties and other factors that may affect future results and that the risks described herein should not be considered a
complete list. Any forward-looking statement speaks only as of the date on which such statement is made, and we undertake no obligation to update or
revise any forward-looking statement, whether as a result of new information, future events or otherwise.
Among others, the forward-looking statements appearing in this Annual Report that may not occur include statements that:
● In the VirnetX Inc. v. Apple, Inc. (Case Nos. 6:11-cv-00563-RWS, 6:12-cv-00855-RWS) (“Apple II”) litigation, the United States Court of
Appeals for the Federal Circuit (the “Federal Circuit”) in November 2019, affirmed-in-part and reversed-in-part the judgment issued by the United States
District Court for the Eastern District of Texas (the “district court”) in the case awarding VirnetX damages of $595.9 million. On October 30, 2020, after a
trial in the district court, a jury returned a verdict in favor of VirnetX, awarding VirnetX with over $502 million in damages. On January 15, 2021, the
district court denied Apple’s motion for judgment as a matter of law and affirmed the jury findings. This may imply that VirnetX may soon receive over
$500 million in cash, however, on February 4, 2021, Apple has filed a notice of appeal to the Federal Circuit with regards to this judgement from the
district court. In addition, the patents in this case are being challenged in the United States Patent and Trademark Office. If those challenges are successful,
the award in the case may be reduced, eliminated and/or delayed for a lengthy period. The continuation of this litigation is distracting to our management,
expensive, and these distractions and expenses may continue.
● We have undertaken activities to commercialize our products and patent portfolio in and outside the United States. These statements may imply
that the worldwide market for our commercialized products is large and will result in significant future revenues for us. However, commercialization of
products such as ours are subject to significant obstacles and risks, including but not limited to a perception by some potential partners and customers that
they should await the outcome of the Apple II litigation before entering or considering to enter any agreement with us, and that or other factors may lead us
to be unsuccessful in obtaining further licensing agreements or making arrangements or entering contracts which create significant future revenues for us.
EXCEPT AS REQUIRED BY LAW, WE UNDERTAKE NO OBLIGATION TO UPDATE OR REVISE ANY FORWARD-LOOKING
STATEMENT AS A RESULT OF NEW INFORMATION, FUTURE EVENTS OR OTHERWISE.
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Item 1.
Business
PART I
The Company
We are an Internet security software and technology company with patented technology for various types of secure network communications, including 5G
and 4G LTE network security. Our patented Secure Domain Name Registry and GABRIEL Connection Technology™, are the foundation for our
GABRIEL Secure Communication Platform™ that protects communications using Zero Trust Network Access (ZTNA). Our technology generates secure
connections on a “zero-click” or “single-click” basis, significantly simplifying the deployment of secure real-time communication solutions by eliminating
the need for end-users to enter any encryption information. Our portfolio of intellectual property is the foundation of our business model. We currently own
approximately 194 total patents and pending applications, including 70 U.S. patents/patent applications and 124 foreign patents/validations/pending
applications. Our patent portfolio is primarily focused on securing real-time communications over the Internet, and related services, and is used in all our
technology and products, some of which were acquired by our principal operating subsidiary; VirnetX, Inc., from Leidos, Inc., or Leidos, (f/k/a Science
Applications International Corporation, or SAIC) in 2006.
Our product portfolio includes sophisticated technologies, products and services that are available for sale worldwide. Our GABRIEL Secure
Communication Platform™ includes a set of software libraries with application interfaces available for securing third-party applications seamlessly across
multiple operating systems. It enables individuals and organizations to maintain complete ownership and control over their personal and confidential data,
secured within their own private network, while enabling authorized secure encrypted access from anywhere at any time.
Our GABRIEL Gateway product extends our Secure Communication Platform™ by allowing existing networked devices and services to seamlessly join
the “GABRIEL SECURED” network without requiring any modifications. All these devices or services, including on-premise or cloud-based services, can
now be assigned a VirnetX Secure Domain Name and use fully authenticated, secure communication channels for its communications.
Our GABRIEL Collaboration Suite™ is a set of communication applications and tools that use our GABRIEL Secure Communication Platform™. It
enables seamless and secure cross-platform communications between devices that are enrolled in our “GABRIEL SECURED” network and have our
software installed. Our GABRIEL Collaboration Suite™ is available for download and free trial, for Android, iOS, Windows, Linux, and Mac OS X
platforms, at https://virnetx.com.
We continue to enhance our products and add new functionality. We will provide updates to new and existing customers as they are released to the public.
Many small and medium businesses have installed our GABRIEL Secure Communication Platform™ and GABRIEL Collaboration Suite™ products in
their corporate networks. We intend to continue to expand our customer base with targeted promotions and direct sales initiatives.
We have an ongoing GABRIEL Licensing Program under which we offer licenses to a portion of our patent portfolio, technology, and software, including
our secure domain name registry service, to domain infrastructure providers, communication service providers as well as to system integrators. Our
GABRIEL Connection Technology™ License is offered to OEM customers who want to adopt the GABRIEL Connection Technology™ as their solution
for establishing secure connections using secure domain names within their products. We have developed GABRIEL Connection Technology™ Software
Development Kit (SDK) to assist with rapid integration of these techniques into existing software implementations. Customers who want to develop their
own implementation of the VirnetX patented techniques for supporting secure domain names, or other techniques that are covered by our patent portfolio
for establishing secure communication links, can purchase a patent license. The number of patents licensed, and therefore the cost of the patent license to
the customer, will depend upon which of the patents are used in a particular product or service. These licenses will typically include an initial license fee, as
well as an ongoing royalty.
Our employees include the core development team behind our patent portfolio, technology, and software. Some members of this team have worked together
for over twenty years and were on same team that invented and developed this technology while working at Leidos, Inc. (“Leidos”). The team has
continued its research and development work and expanded the set of patents we acquired in 2006 from Leidos, into a larger patent portfolio. This portfolio
now serves as the foundation of our products, services, and our licensing business. It is expected to generate most of our future revenue in license fees and
royalties. We intend to continue our efforts to develop new products and technologies and further strengthen and expand our patent portfolio. We intend to
continue using an outsourced and leveraged model to maintain efficiency and manage costs as we grow our licensing business by, for example, offering
incentives to early licensing targets or asserting our rights for use of our patents.
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Industry Overview & Trends
We believe that the rapid growth in remote work has accelerated digital business transformation initiatives that would have taken years, into a matter of
months. The demand to work remotely, explosive growth of video conferencing tools and rapid growth in the cloud has created an opportunity to secure
communications regardless of a user’s location, network, or BYOD (bring your own device).
The shift to remote work and expansion of the enterprise network perimeter has driven the growth of ZTNA solutions. The Zero Trust concept treats all
networks like the Internet, where all users and devices are untrusted by default. Their location within the network is not a factor for deciding trust. Each
user and device on the network require authentication and authorization, based on policy, prior to accessing any applications or resources on the network.
ZTNA facilitates security around remote work, because Zero Trust policies enable granular access control, end-to-end encryption of network
communications and remove application visibility from the public Internet reducing the attack surface. Based on our research and estimates, we believe that
the Zero-Trust Security Market size is projected to grow from USD 15.6 billion in 2019 to USD 38.6 billion by 2024, at a Compound Annual Growth Rate
(CAGR) of 19.9% from 2019 to 2024. We believe Zero Trust represents a growing market and an ideal fit for our technology and products.
With large portions of the global population now living under some form of lockdown, the global coronavirus pandemic has forced many organizations to
shift their business processes – and their employees are having to embrace a work-from-home culture on a scale never attempted. Remote work has
accelerated the adoption of video conferencing and meeting applications across all industries making it an essential tool to connect with remote customers,
workforces, and employees to prevent direct contact. Based on our estimates, we believe that the worldwide Video Conferencing Market size is projected to
grow from USD 14 billion in 2019 to USD 35 billion by 2026, at a CAGR of 16.5% from 2020 to 2026. This rapid adoption, learning curve and demand to
continue working remotely has created significant security concerns and breaches for enterprises. Our market research has focused on security conscious
verticals such as healthcare, banking, legal and government where security breaches can significantly impact outcomes. In many cases, these enterprises
adopted industry standard video conferencing tools and are now looking at more secure alternative solutions. Enterprises want video conferencing
solutions that protect their information and allow them greater security control and visibility, while continuing to be reliable, easy to use and cost effective.
Enterprises in these verticals are also looking for video conferencing solutions that integrate into their existing workflows and better align with specific use
cases instead of forcing them to adapt to more one size fits all solutions on the market. We believe our GABRIEL Collaboration Suite™ represents a
starting point to offer secure video conferencing tools built on a zero-trust architecture.
Cloud computing growth has rapidly expanded as enterprises continue to move applications and services to the cloud. The cloud offers scalability,
operations and development efficiency and remote access benefits for their workforce. Based on our estimates, we believe that the global cloud computing
market size is expected to grow from approximately USD 293 billion in 2020 to over USD 810 billion by 2026, at a CAGR of 18.5% during the forecast
period. The cloud technology adoption is expected to increase quite significantly in industries where the Work-From-Home (WFH) initiative is helping to
sustain enterprise business functions. However, shifting critical data to the cloud has resulted in security concerns and the need for enterprises to control
access and gain visibility into how information is being used, who is accessing it and where it is going. We believe our scalable technology allows
enterprises to secure applications and services regardless of whether hosting is on-premise or in the cloud.
As billions of connected Internet of Things (IoT) devices come online in support of enterprise operations, products, and industrial controls they will need to
be secured and integrated into the enterprise. Facilitated by advancements in 4G/Advanced LTE and high-speed 5G networks, IoT devices will be able to
operate from any network, transmit higher volumes of data including video streaming and sensor data collection and require real-time decisions based on
that data. Without next generation security, these IoT devices represent a large attack surface that manages and control critical enterprise infrastructure.
These IoT devices can operate from anywhere, will need to be secured with the same level of network security and ZTNA solutions enterprises are already
deploying for their remote workforce. We believe that the market opportunity for our software and technology solutions is large and expanding as secure
domain names are now an integral part of securing the next generation 5G and 4G/LTE Advanced wireless networks and IoT communications in areas
including Smart City, Connected Car and Connected Home. Based on our estimates, we believe that the size of global Industrial Internet of Things (IIoT)
market is projected to grow from USD 83.6 billion in 2020 to approximately USD 254 billion by 2027 at a CAGR of 20.35% during this forecasted period
with a growing investment in securing the infrastructure around these devices.
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Our Approach & Strategy
Our portfolio of intellectual property is the foundation of our business model. We currently own approximately 194 total patents and pending applications,
including 70 U.S. patents/patent applications and 124 foreign patents/validations/pending applications. This portfolio now serves as the foundation of our
products, services, and our licensing business. It is expected to generate the majority of our future revenue in license fees and royalties.
Our strategy is to become the market leader in securing real-time communications over the Internet and to establish our GABRIEL Connection
Technology™ as the industry standard security platform. Key elements of our strategy are to:
•
•
•
•
•
•
Actively recruit partners in various vertical markets, including healthcare, finance, legal, government to help us rapidly expand our enterprise
customer base.
Continue to grow our technology licensing program to commercialize our intellectual property, including our GABRIEL Connection
Technology™.
Promote our Gabriel Secure Communication Platform™ as a solution for delivering ZTNA.
Grow our GABRIEL Gateway product offering to secure enterprise applications, services, and infrastructure.
Grow registration of GABRIEL Secure Domains as the network segmentation component of our ZTNA solution. Establish VirnetX as the
exclusive, universal registry of secure domain names and enable our customers to act as registrars for their users and broker secure communication
between devices.
Promote Gabriel Collaboration Suite™ products in the general market for sale to end-user enterprises, directly and with partners, with targeted
promotions and other marketing programs. Expand GABRIEL Collaboration Suite™ to include video conferencing to assist remote workers and
offer an industry leading secure meeting solution.
GABRIEL Secure Communication Platform™ delivers ZTNA allowing enterprises to secure their information, control access and gain visibility into how
information is being used, who is accessing it and where it is going. Our patented technology allows enterprises to license our technology for integration
into their products and services, easily deploy our technology through our GABRIEL Gateway product for endpoint security or securing their
communications with our GABRIEL Collaboration Suite™ application.
We believe GABRIEL Gateway will support enterprises in securing their networks as their applications, services, virtualized resources, and data moves to
the cloud. GABRIEL Gateway secures applications, services and infrastructure using ZTNA. Enterprises can quickly deploy GABRIEL Gateway to
protect legacy applications, secure new cloud-based services and remove application visibility from the public Internet. Enterprises can move towards
more granular network access control to protect their network at the edge and away from legacy VPN technologies. GABRIEL Gateway enables remote
employees to securely communication with on-premise and cloud-based applications, regardless of their location. GABRIEL Gateway is included with the
GABRIEL Collaboration Suite™ and offered as a separate licensing program for enterprises that need a Gateway only solution. Enterprises can also use
GABRIEL Gateway to secure open-source applications powering communications, data and analytics, infrastructure, and business services with a focus on
making those applications easier to secure, access and manage.
GABRIEL Secure Domains provide two fundamental capabilities for enterprises to manage device security and access control.
•
•
Unique, certificate-based device identities, tied to a user, that are used to authenticate and authorize device access (e.g., GABRIEL Connection
Technology™), based on a set of policies.
Flexible, software-based network segmentation that enterprises can deploy on-demand, without requiring additional hardware infrastructure.
Enterprise customers understand the complexity of device certificate management at scale, the operational costs and security ramifications, if not done
properly. GABRIEL Secure Domains enable certificate-based identities and when used within the GABRIEL Secure Communication Platform™, provides
a cloud-based service that automates the process of issuing, renewing, and revoking device certificates across the enterprise at scale. With GABRIEL
Secure Domains, enterprises have a solution for managing device security and access control driven by the rapid growth of IoT and remote work.
Each GABRIEL Secure Domain creates a network microsegment or secure enclave that includes a set of resources (e.g., applications, services, or data) and
a set of users and devices an enterprise can assign to access those resources. Used within the GABRIEL Secure Communication Platform™, enterprises can
scale and adapt their network architecture, on-demand, based on business and workforce needs. Enterprises see the power of GABRIEL Secure Domains as
a way to flexibility segment their networks, enforce access policies, audit compliance, isolate and limit lateral network movement, secure and limit access
for remote workers and gain access control and visibility into their network.
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We believe GABRIEL Collaboration Suite™ provides the foundation for real-time, secure communications and collaboration applications for the enterprise
remote workforce. We bundle multiple applications together within the GABRIEL Collaboration Suite™, including Secure Chat, Secure Share, Secure
Video/Voice, Secure Mail, Secure Backup/Sync and GABRIEL Gateway. We are exploring unbundling the applications within GABRIEL Collaboration
Suite™ and offering à la carte product options. This approach allows us to offer more flexible licensing options to solve specific customer use-cases, align
with partner product offerings and create upsell opportunities.
Competitive Strengths
We believe the following competitive strengths will enable our success in the marketplace:
•
•
Unique patented technology. We are focused on developing innovative technology for securing real-time communications over the Internet and
establishing the exclusive secure domain name registry in the United States and other key markets around the world. Our unique solutions combine
industry standard encryption methods and communication protocols with our patented techniques for automated DNS lookup mechanisms. Our
technology and patented approach enable users to create a secure communication link by generating secure domain names. We currently own
approximately 194 total patents and pending applications, including 70 U.S. patents/patent applications and 124 foreign patents/validations/pending
applications. Our portfolio includes patents and pending patent applications in the United States and other key markets that support our secure domain
name registry service for the Internet.
Scalable licensing business model. We are actively engaged in pursuing additional licensing agreements with OEMs, service providers and system
integrators within the IP-telephony, mobility, mobile-to-mobile communications, fixed-mobile convergence, and unified communications end-markets.
• Highly experienced research and development team. Our research and development team is comprised of nationally recognized network security
and encryption technology scientists and experts that have worked together as a team for over ten years. During their careers, this team has developed
several cutting-edge technologies for U.S. national defense, intelligence, and civilian agencies, many of which remain critical to our national security
today. Prior to joining VirnetX, our team worked for Leidos, during which time they invented the technology that is the foundation of our technology,
and software. Based on the collective knowledge and experience of our development team, we believe that we have one of the most experienced and
sophisticated groups of security experts researching vulnerability and threats to real-time communication over the Internet and developing solutions to
mitigate these problems.
License and Service Offerings
We offer a diversified portfolio of license and service offerings focused on securing real-time communications over the Internet, including:
•
VirnetX technology licensing. Customers who want to develop their own implementation of the VirnetX code module for supporting secure domain
names, or who want to use their own techniques that are covered by our patent portfolio for establishing secure communication links, could purchase a
technology license. We anticipate that these licenses would typically include an initial license fee, as well as an ongoing royalty. We expect that these
licenses will include a one-time delivery of GABRIEL software development kit including object libraries, sample code, testing and quality assurance
tools and the supporting documentation necessary for a customer to implement of the techniques we have developed.
• GABRIEL Connection Technology™ Software Development Kit or SDK. OEM customers who want to adopt the GABRIEL Connection
Technology™ as their solution for establishing secure connections using secure domain names within their products could purchase an SDK license.
The software development kit consists of object libraries, sample code, testing and quality assurance tools and the supporting documentation necessary
for a customer to implement our technology. These tools are comprised of software for a secure domain name connection test server, a relay test server,
and a registration test server. We expect that customers would pay an up-front license fee to purchase an SDK license and a royalty fee for every
product shipped with the embedded VirnetX code module.
•
Secure domain name registrar service. Customers, including service providers, telecommunication companies, ISPs, system integrators and OEMs
could purchase a license to our secure domain name registrar service. We would provide the software suite and technology support to enable such
customers to provision devices with secure domain names and facilitate secure connections between registered devices. This suite includes the
following server software modules:
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•
•
•
•
•
Registrar server software. We anticipate that our registrar server software would enable customers to operate as a secure domain name registrar that
provisions devices with secure domain names. The registrar server software is designed to provide an interface for our customers to register new
virtual private domains and sub-domain names. This server module must be enrolled with the VirnetX secure domain name master registry to obtain its
credentials before functioning as an authorized registrar.
Connection server software. We anticipate that our connection server software would allow customers to provide connection services to enrolled
devices. The connection services include registration of presence information for authenticated users and devices, presence information query request
services, enforcement of policies and support for communication with peers behind firewalls.
Relay server software. We anticipate that our relay server software would allow customers to dynamically maintain connections and relay data to
private IP addresses for network devices that reside behind firewalls.
Secure domain name master registry and connection service. As part of enabling the secure domain name registrar service, we expect that we will
maintain and manage the secure domain name master registry. This service is expected to enroll all secure domain name registrar customers and
generate the credentials required to function as an authorized registrar. It also is expected to provide connection services and universal name resolution,
presence information and secure connections between authorized devices with secure domain names. Secure domain name registrar service customers
will enter into a technology licensing and revenue sharing agreement with VirnetX whereby we will typically receive an up-front licensing fee for the
secure domain name registrar technology, as well as ongoing annual royalties for each secure domain name issued by the customer.
Technical support services. We intend to provide high-quality technical support services to licensees and customers for the rapid customization and
deployment of GABRIEL Connection Technology™ in an individual customer’s products and services.
Customers
Our GABRIEL Collaboration Suite™ is available for download and free trial, for Android, iOS, Windows, Linux, and Mac OS X platforms, at
http://www.gabrielsecure.com/. We continue to enhance our products and add new functionality to our products. We will provide updates to new and
existing customers as they are released publicly. Over 80 small and medium businesses have installed our GABRIEL Secure Communication Platform™
and GABRIEL Collaboration Suite™ products in their corporate networks. We continue to rapidly expand our customer base with targeted promotions and
direct sales initiatives.
We have signed Patent License Agreements with Aastra USA, Inc. Avaya, Inc., Microsoft Corporation, Mitel Networks Corporation, NEC Corporation and
NEC Corporation of America, Siemens Enterprise Communications GmbH & Co. KG, and Siemens Enterprise Communications Inc. to license certain of
our patents, for a one-time payment and an ongoing royalty for all future sales through the expiration of the licensed patents with respect to certain current
and future IP-encrypted products.
We are seeking further licensing of our technology, including our GABRIEL Connection Technology™ to developers and original equipment
manufacturers, or OEMs, of chips, servers, smart phones, tablets, e-Readers, laptops, net books, and other devices, within the IP-telephony, mobility, fixed-
mobile convergence, and unified communications markets including 4G/LTE. We have published our royalty rates and guidelines on our website. All
forward moving licenses have adhered to these guidelines and have met or exceeded these rates and we will use these rates and guidelines in all future
license negotiations.
Marketing and Sales
We employ a leveraged, partner-oriented, marketing strategy for our technology licenses and software product offerings. We successfully signed a number
of Resellers & Managed Service Provider in various market segments, including, healthcare, finance, legal, government, etc., to assist us in selling our
software products to their customers. A list of our partners can be found on our website at https://virnetx.com/partners. We plan to continue working on a
number of sales and marketing promotions, in the U.S. and Japan, to recruit more resellers and partners along with direct sales programs as we seek to
extend out our customer base internationally.
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We plan to directly market our Gabriel Secure Communication Platform™ and Gabriel Collaboration Suite™ products, domain name registry services to
our service provider and system integrator customers. We market our Gabriel line of products directly to small and medium businesses using online
marketing programs and tools.
We expect to leverage our relationship with Leidos, to extend our offering to departments and agencies within the federal government. Leidos is a
FORTUNE 500® scientific, engineering and technology applications company that uses its deep domain knowledge to solve problems of vital importance
to the nation and the world, in national security, energy and the environment, critical infrastructure, and health. We intend to leverage our sales team for
managing current accounts and pursuing sales opportunities with new customers.
In January 2021, we added a Chief Operating Officer (COO) to our Japanese team to further our technology licensing efforts in Japan. We have signed a
non-exclusive Distribution and Service Agreement with IP Dream, a Japanese based strategic technology developer and service provider, to sell VirnetX’s
Gabriel Collaboration Suite as well as VirnetX’s Secure Domain Name technology to its clients in Japan and greater Asia. Jointly with IP Dream, we are
currently pursuing a number of OEM opportunities with some of the largest services providers in Japan. Along with our efforts with IP dream, we continue
to explore alternative strategies to pursue opportunities to work with other third parties in Japan, and elsewhere, using an approach that will seek to
capitalize on these opportunities in part by placing more emphasis on the use of our own employees.
Our GABRIEL Collaboration Suite™ is available for download and free trial, for Android, iOS, Windows, Linux, and Mac OS X platforms,
at https://virnetx.com. We continue to enhance our products and add new functionality to our products. We will provide updates to new and existing
customers as they are released publicly. We continue to rapidly expand our customer base with targeted promotions and direct sales initiatives.
We intend to continue to license our patent portfolio, technology, and software, including our secure domain name registry service, to domain infrastructure
providers, communication service providers as well as to system integrators. We intend to seek further license of our technology, including our GABRIEL
Connection Technology™ to enterprise customers, developers and original equipment manufacturers, or OEMs, of chips, servers, smart phones, tablets, e-
Readers, laptops, net books, and other devices, within the IP-telephony, mobility, fixed-mobile convergence, and unified communications markets
including 5G and 4G/LTE. We have published our royalty rates and guidelines on our website at https://virnetx.com/licensing. All forward moving licenses
have adhered to these guidelines and have met or exceeded these rates and we will use these rates and guidelines in all future license negotiations.
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Intellectual Property and Patent Rights
Our intellectual property is primarily comprised of trade secrets, patented know-how, issued and pending patents, copyrights and technological innovation.
We currently own approximately 194 total patents and pending applications, including 70 U.S. patents/patent applications and 124 foreign
patents/validations/pending applications. Our portfolio includes a number of patents that describe unique systems and methods for securing real-time
communications over the Internet, as well as related services such as the establishment and maintenance of a secure domain name registry. Our software
and technology solutions also may have additional applications relating to operating systems and network security. A complete list of our U.S. patents is
available on our website located at www.virnetx.com. Each patent is publicly accessible on the Internet website of the U.S. Patent and Trademark Office at
www.uspto.gov. The term of each of our issued U.S. and foreign patents will expire during the period from 2020 to 2024.
Notwithstanding anything to the contrary set forth in any of our filings under the Securities Act of 1933 or the Securities Exchange Act of 1934 that might
incorporate future filings, the information set forth on the United States Patent and Trademark Office, or the USPTO Website, shall not be deemed to be a
part of or incorporated by reference into any such filings. The Company does not warrant the accuracy, or completeness or adequacy of the USPTO
Website, and expressly disclaims liability for errors or omissions on such website.
Assignment of Patents
Some of our issued patents and pending patent applications were acquired by our principal operating subsidiary, VirnetX, Inc., from Leidos, pursuant to an
Assignment Agreement dated December 21, 2006, and a Patent License and Assignment Agreement dated August 12, 2005, as amended on November 2,
2006, including documents prepared pursuant to the November amendment, and as further amended on March 12, 2008. We recorded the assignment from
Leidos, with the U.S. Patent Office on December 21, 2006.
Key terms of these agreements are as follows:
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Patent Assignment. Leidos, unconditionally and irrevocably conveyed, transferred, assigned, and quitclaimed all its right, title, and interest in and
to the patents and patent applications, as specifically set forth on Exhibit A to the assignment document recorded with the U.S. Patent Office,
including, without limitation, the right to sue for past infringement.
License to Leidos, Outside the Field of Use. Effective March 12, 2008, we granted to Leidos, a non-exclusive, royalty free, fully paid, perpetual,
worldwide, irrevocable, sub licensable and transferable right and license permitting Leidos, and its assignees to make, have made, import, use,
offer for sale, and sell products and services covered by, and to make improvements to, the patents and patent applications we acquired from
Leidos, solely outside our field of use.
Compensation Obligations. As consideration for the assignment of the patents and for the rights we obtained from Leidos, as amended, we are
required to make payments to Leidos, based on cash or certain other values generated from those patents. The amount of such payments depends
upon the type of value generated, and certain categories are subject to maximums and other limitations. In 2010, we met our maximum royalty
payment requirement; however, Leidos is also entitled under certain circumstances to receive a portion of the proceeds paid to us for certain
acquisitions of VirnetX and the settlement of certain patent infringement claims of ours.
Government Regulation
The laws governing online secure communications remain largely unsettled, even in areas where there has been legislative action. It may take years to
determine whether and how existing laws governing intellectual property, privacy, data protection and libel apply to online communications and media.
Such legislation may interfere with the growth in use of online secure communications and decrease the acceptance of online secure communications as a
viable solution, which could adversely affect our business.
Due to the Internet’s popularity and increasing use, new laws regulating secure communications may be adopted. These laws and regulations may cover,
among other things, issues relating to privacy, data protection, pricing, taxation, telecommunications over the Internet, content, copyrights, distribution and
quality of products and services. We intend to comply with all new laws and regulations as they are adopted.
The U.S. government has controlled the authoritative domain name system, or DNS, root server since the inception of the Internet. On July 1, 1997, the
President of the United States directed the U.S. Secretary of Commerce to privatize the management of the domain name system in a manner that increases
competition and facilitates international participation in its management.
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On September 29, 2006, the U.S. Department of Commerce extended its delegation of authority by entering into a new agreement with the Internet
Corporation for Assigned Names and Numbers, or ICANN, a California non-profit corporation headquartered in Marina Del Rey, California. ICANN is
responsible for managing the accreditation of registry providers and registrars that manage the assignment of top-level domain names associated with the
authoritative DNS root directory. Although it is possible to create and manage other DNS root directories privately without accreditation from ICANN, the
possibility of conflicting name and number assignments makes it less likely that users would widely adopt a top-level domain name associated with an
alternative DNS root directory provided by a non-ICANN-accredited registry service.
Employees
On December 31, 2020, the Company had 21 full and part time employees, most of whom work remotely from our corporate offices. The Company has
had an at-home work force since its inception. The emphasis of our employees is on our technology research and product development with 11 employees
focused on this effort. The team has been working on enhancing our products and adding new functionality along with successfully filing several new
patent applications in 2021. We also continue building our sales and marketing teams to expand our product-lines and customer base. In 2021 we added a
Chief Operating Officer for our subsidiary in Japan who will be focused on growing our market and products in that region.
In addition to our regular employees, we also engage with important consultants on a regular basis. These consultants can be involved in our product
development, customer relations, legal, and/or regulatory compliance and reporting. The Company has experienced low employee turnover rates over the
years with both employees and some consultants participating in our incentive stock option/RSU plans.
Available Information
We file or furnish various reports, such as registration statements, periodic and current reports, proxy statements and other materials with the SEC. Our
Internet website address is www.virnetx.com. You may obtain, free of charge on our Internet website, copies of our annual report on Form 10-K, quarterly
reports on Form 10-Q, current reports on Form 8-K, and amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Exchange
Act, as soon as reasonably practicable after we electronically file such material with, or furnish it to, the SEC. The information we post is intended for
reference purposes only; none of the information posted on our website is part of this report or incorporated by reference herein.
The SEC also maintains an Internet site that contains reports, proxy and other information statements, and other information regarding issuers, including us,
that file electronically with the SEC. The Internet address of the SEC’s Internet site is http://www.sec.gov.
Item 1A. Risk Factors
Our operations and financial results are subject to various risks and uncertainties, including those described below, which could adversely affect our
business, financial condition, results of operations, cash flows, and the trading price of our common and capital stock. You should carefully consider the
risks and uncertainties described below in addition to the other information set forth in this Annual Report on Form 10-K, including the section titled
“Management’s Discussion and Analysis of Financial Condition and Results of Operations” and our consolidated financial statements and related notes,
before making any investment in our common stock. The risks and uncertainties described below are not the only ones we face. Additional risks and
uncertainties not presently known to us or that we currently believe to be immaterial may also adversely affect our business. If any of these risk factors
occur, you could lose substantial value or your entire investment in our shares.
Risks Related to Our Business and Our Financial Reporting
We are involved and will continue to be involved in litigation defending our patent portfolio, which can be time-consuming and costly, and we cannot
anticipate the results.
We spend a significant amount of our financial and management resources to pursue our current litigation. We believe that this litigation and others that we
may pursue in the future could continue for years and consume significant financial and management resources. The counterparties to our litigation include
large, well-financed companies with substantially greater resources than us. Patent litigation is risky, and the outcome is uncertain, and we cannot assure
you that any of our current or future litigation matters will result in a favorable outcome for us. In addition, even if we obtain favorable interim rulings or
verdicts, they may be inconsistent with the ultimate resolution of the dispute. Also, we cannot assure you that we will not be exposed to claims or sanctions
against us which may be costly or impossible for us to defend. Unfavorable or adverse outcomes may result in losses, exhaustion of financial resources or
other adverse effects, which could encumber our ability to develop and commercialize our products.
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We may not be able to capitalize on market opportunities related to our licensing strategy or our patent portfolio.
Our business strategy includes licensing our patents and technology to other companies in order to reach a larger end-user base than we could reach through
direct sales and marketing efforts; as such, our business strategy and revenues may depend on intellectual property licensing fees and royalties for the
majority of our revenues. We currently derive minimal revenue from licensing activities, and royalties, and we cannot assure you that we will successfully
capitalize on our market opportunities or that our current business strategy will succeed.
Although to date we have entered into a limited number of settlement and license agreements, we may not be successful in entering into further licensing
relationships, or if we are successful in entering into such relationships, the acquisition of them may be expensive, and they, as well as our existing
settlement and our existing and pending license agreements may not generate the financial results, we expect.
Factors that may affect our ability to execute our current business strategy include, but are not limited to, the following:
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Third parties may challenge the validity of our patents;
The pendency of our various litigations may cause potential licensees not to do business with us;
Our patents may expire before we can make our business strategy successful;
• We face, and we expect to continue to face, intense competition from new and established competitors who may have superior products and
services or better marketing, financial or other capacities than we do; and
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It is possible that one or more of our potential customers or licensees develops or otherwise sources products or technologies similar to,
competitive with or superior to ours.
If we are not able to adequately protect our patent rights, our business would be negatively impacted.
We believe our patents are valid, enforceable, and valuable. Notwithstanding this belief, third parties may make claims of infringement or invalidity claims
with respect to our patents and such claims could give rise to material cost for defense or settlement or both, jeopardize or substantially delay a successful
outcome of litigation we are or may become involved in, divert resources away from our other activities, limit or cease our revenues related to such patents,
or otherwise materially and adversely affect our business. Similar challenges could also prevent us from obtaining additional patents in the future.
Additionally, several of our patents are currently, and other patents may in the future be, subject to United States Patent and Trademark Office (“USPTO”)
post-grant inter partes review proceedings (“IPR”) which may result in all or part of these patents being invalidated, or the claims of our patents being
limited. Unfavorable or adverse outcomes in our litigation or IPRs may result in losses, exhaustion of financial resources, reduction in our ability to enforce
our intellectual property rights, or other adverse effects, which could encumber our ability to develop and commercialize our products. Even if we are
successful in enforcing our intellectual property rights, our patents may not ultimately provide us with any competitive advantages and may be less
valuable than we currently expect. These risks may be heightened in countries other than the United States where laws regarding patent protection are less
developed, and may be negatively affected by the fact that legal standards in the United States and elsewhere for protection of intellectual property rights in
Internet-related businesses are uncertain and still evolving. In addition, there are a significant number of United States and foreign patents and patent
applications in our areas of interest, and we expect that significant litigation in these areas will continue and will add uncertainty to the value of certain
patents and other intellectual property rights in our areas of interest. If we are unable to protect our intellectual property rights or otherwise realize value
from them, our business would be negatively affected.
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We can provide no assurances that the licensing of our essential security patents under FRAND will be successful.
At the request of the European Telecommunications Standards Institute (“ETSI”), and the Alliance for Telecommunications Industry Solutions (“ATIS”),
we agreed to update our licensing declaration to ETSI and ATIS under their respective Intellectual Property Rights policies. This was in response to our
Statement of Patent Holder identifying a group of our patents and patent applications that we believe are or may become essential to certain developing
specifications in the 3rd Generation Partnership Project Long Term Evolution (“LTE”), Systems Architecture Evolution project. We will make available a
non-exclusive patent license under FRAND (fair, reasonable and non-discriminatory terms, and conditions, with compensation) for the patents identified by
us that are or become essential to applicants desiring to implement the Technical Specifications identified by us, as set forth in the updated licensing
declaration under the ATIS and ETSI Intellectual Property Rights policies. Our licensing declarations under the ATIS and ETSI Intellectual Property Rights
policies may limit our flexibility in determining royalties and license terms for certain of our patents. Consequently, we cannot assure you that the licensing
of the essential security patents will be successful or that third parties will be willing to enter into licenses with us on reasonable terms or at all, which
could have an adverse effect on our business and harm our competitive position.
Because our business is conducted or expected to be conducted in an environment that is subject to rapid change, we may be subject to various
developments in regulation, law, and consumer preferences to which we may not be able to adapt successfully.
The current regulatory environment for our products and services remains unclear. We can give no assurance that our planned product offerings will be in
compliance with laws and regulations of local, state, United States federal or foreign authorities. Further, we can give no assurance that we will not
unintentionally violate such laws or regulations or that such laws or regulations will not be modified, or that new laws or regulations will be enacted in the
future which would cause us to be in violation of such laws or regulations. For example, Voice-Over-Internet Protocol (“VoIP”) services are not currently
subject to all the same regulations that apply to traditional telephony, but it is possible that similar regulations may be applied to VoIP in the future and that
these could result in substantial costs to us which could adversely affect the marketability of our products and planned products related to VoIP. For further
example, the use of the Internet and private Internet Protocol (“IP”) networks for communication is largely unregulated within the United States, but may
become regulated in the future; additionally, several foreign governments have enacted measures that could restrict or prohibit voice communications
services over the Internet or private IP networks.
Our business depends on the growth of instant messaging, VoIP, mobile services, streaming video, file transfer and remote desktop and other next-
generation Internet-based applications. A decline in the use of these applications due to complexity or cost relative to alternate traditional or newly
developed communications channels, or development of alternative technologies, could cause a material decline in the number of users in these areas.
More aggressive domestic or international regulation of the Internet in general, and Internet telephony providers and services specifically may materially
and adversely affect our business, financial condition, operating results, and future prospects.
Our exposure to outside influences beyond our control, including new legislation, court rulings or actions by the United States Patent and Trademark
Office, could adversely affect our licensing and enforcement activities and results of operations.
Our licensing and enforcement activities are subject to numerous risks from outside influences, including the following:
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New legislation, regulations or rules related to obtaining patents or enforcing patents could significantly increase our operating costs and decrease
our revenue. For instance, the United States Supreme Court has modified some tests used by the USPTO in granting patents during the past 20
years which may decrease the likelihood that we will be able to obtain patents and increase the likelihood of challenge of any patents we obtain or
license. In addition, in 2012 the United States enacted sweeping changes to the United States patent system under the Leahy-Smith America
Invents Act, including changes that transition the United States from a “first-to-invent” system to a “first to file” system and alter the processes for
challenging issued patents;
• More patent applications are filed each year resulting in longer delays in getting patents issued by the USPTO;
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Federal courts are becoming more crowded, and as a result, patent enforcement litigation is taking longer; and
As patent enforcement becomes more prevalent, it may become more difficult for us to voluntarily license our patents.
New legislation, regulations or court rulings related to enforcing patents could harm our business and operating results.
Intellectual property is the subject of intense scrutiny by the courts, legislatures, and executive branches of governments around the world. Various patent
offices, governments or intergovernmental bodies may implement new legislation, regulations or rulings that impact the patent enforcement process, or the
rights of patent holders and such changes could negatively affect licensing efforts and/or litigations. For example, limitations on the ability to bring patent
enforcement claims, limitations on potential liability for patent infringement, lower evidentiary standards for invalidating patents, increases in the cost to
resolve patent disputes and other similar developments could negatively affect our ability to assert our patent or other intellectual property rights.
It is impossible to determine the extent of the impact of any new laws, regulations or initiatives that may be proposed, or whether any of the proposals will
become enacted as laws. Compliance with any new or existing laws or regulations could be difficult and expensive, affect the manner in which we conduct
our business and negatively impact our business, prospects, financial condition, and results of operations. We may need to raise additional capital to support
our business growth, and this capital will be dilutive, may cause our stock price to drop or may not be available on acceptable terms, if at all.
We may need to raise additional capital, which may not be available to us when needed or may not be available on terms acceptable to us, to support our
business growth or to respond to business opportunities, challenges, or unforeseen circumstances, including sales under our ATM or our universal shelf
registration statement. Our ability to obtain additional capital, if and when required, will depend on our business plans, investor demand, our operating
performance, the condition of the capital markets, the terms of our current contractual obligations and other factors. If we raise additional funds through the
issuance of equity, equity-linked or debt securities, including those under our ATM or our Universal Shelf Registration Statement, those securities may
have rights, preferences, or privileges senior to the rights of our common stock, and our existing stockholders may experience dilution. Additionally, we are
unable to predict the future success of our ATM or any other offering. Sales of a substantial number of shares of our common stock in the public market, or
the perception that these sales or other financings might occur, could depress the market price of our common stock, and could also impair our ability to
raise capital through the sale of additional equity securities. If we issue debt securities or incur indebtedness, we could experience increased future payment
obligations and a need to comply with restrictive covenants, such as limitations on our ability to incur additional debt, limitations on our ability to acquire,
sell or license intellectual property rights and other operating restrictions that could adversely impact our ability to conduct our business. If we are unable to
obtain additional capital or are unable to obtain additional capital on satisfactory terms, our ability to continue to support our business growth or to respond
to business opportunities, challenges, or other circumstances could be adversely affected, and our business may be harmed.
If we experience security breaches, we could be exposed to liability and our reputation and business could suffer.
We expect to retain certain confidential and proprietary customer information in our secure data centers and secure domain name registry, as well as
personal data and other confidential and proprietary information relating to our business. It will be critical to our business strategy that our facilities and
infrastructure remain secure and are perceived by the marketplace to be secure. Our secure domain name registry operations will also depend on our ability
to maintain our computer and telecommunications equipment in effective working order and to reasonably protect our systems against interruption, and
potentially depend on protection by other registrars in the shared registration system. The secure domain name servers that we will operate will be critical
hardware to our registry services operations. Therefore, we expect to have to expend significant time and money to maintain or increase the security of our
products, facilities, and infrastructure. Security technologies are constantly being tested by computer professionals, academics and “hackers.” Advances in
computer capabilities and the techniques for attacking security solutions, new discoveries in the field of cryptography or other events or developments
could result in compromises or breaches of our security measures and could make some or all our products obsolete or unmarketable. Likewise, if any of
our products are found to have significant security vulnerabilities, then we may need to dedicate engineering and other resources to eliminate the
vulnerabilities and to repair or replace products already sold or licensed to our customers. Despite the security measures that we and our service providers
utilize, our infrastructure and that of our service providers may be vulnerable to physical break-ins, computer viruses, attacks by hackers, phishing attacks,
social engineering, or similar disruptive problems. It is possible that we may have to expend additional financial and other resources to address such
problems. The COVID-19 pandemic is increasing vulnerability to cyber-attacks, as more individuals and companies work online, which increases these
risks. As a provider of Internet security software and technology, we may be the target of dedicated efforts by hackers and other third parties to overcome
or defeat our security measures. Any physical or electronic break-in or other security breach or compromise of the information stored at our secure data
centers and domain name registration systems, including any compromise due to human error or employee or contractor malfeasance, may jeopardize the
security of information stored on our premises or in the computer systems and networks of our customers. In such an event, we could face significant
liability and current or potential customers could be reluctant to use our services. Additionally, any such data security incident, or the perception that one
has occurred could also result in adverse publicity, harm to our reputation and competitive position, and therefore adversely affect the market’s perception
of the security of electronic commerce and communications over IP networks as well as the security or reliability of our services.
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A security breach or other security incident could require a substantial level of financial resources to rectify and otherwise respond to, may be difficult to
identify or address in a timely manner, and could result in claims, investigations, and inquires by private parties or governmental entities that may divert
management’s attention and require the expenditure of significant time and resources, and which may cause us to incur substantial fines, penalties, or other
liability and related legal and other costs. Any actual or perceived security breach or other security incident may also harm our reputation and make it more
difficult or impossible for us to successfully market to others. Any of the foregoing matters could harm our operating results and financial condition.
Privacy and data security concerns, and data collection and transfer restrictions and related domestic or foreign regulations may limit the use and
adoption of our solutions and adversely affect our business.
Personal privacy, information security, and data protection are significant issues in the United States, Europe, and many other jurisdictions where we have
operations or offer our products. The regulatory framework governing the collection, processing, storage and use of confidential and proprietary business
information and personal data is rapidly evolving. The United States federal and various state and foreign governments have adopted or proposed
requirements regarding the collection, distribution, use, security and storage of personally identifiable information and other data relating to individuals,
and federal and state consumer protection laws are being applied to enforce regulations related to the online collection, use and dissemination of data.
Further, many foreign countries and governmental bodies, including the European Union (“EU”), where we conduct business, have laws and regulations
concerning the collection and use of personal data obtained from their residents or by businesses operating within their jurisdiction. These laws and
regulations often are more restrictive than those in the United States. Laws and regulations in these jurisdictions apply broadly to the collection, use,
storage, disclosure, and security of data that identifies or may be used to identify or locate an individual, such as names, email addresses and, in some
jurisdictions, IP addresses.
We also expect that there will continue to be new proposed laws, regulations and industry standards concerning privacy, data protection and information
security in the United States, the EU, and other jurisdictions. For example, the European Commission adopted a General Data Protection Regulation (the
“GDPR”) that became fully effective on May 25, 2018, superseding prior EU data protection legislation, imposing more stringent EU data protection
requirements, and providing for greater penalties for noncompliance. The United Kingdom enacted a Data Protection Act that substantially implements the
GDPR. We are evaluating obligations imposed on us by the GDPR and we may be required to incur substantial expense in order to make significant
changes to our product and business operations in connection with obtaining and maintaining compliance with the GDPR and similar legislation, such as
the UK Data Protection Act, all of which may adversely affect our revenue and product sales. Additionally, California recently enacted legislation, the
California Consumer Privacy Act (the “CCPA”) that, among other things, requires covered companies to provide new disclosures to California consumers,
and afford such consumers new abilities to opt-out of certain sales of personal information. We cannot fully predict the impact of the CCPA on our business
or operations, but it may require us to modify our data processing practices and policies and to incur substantial costs and expenses in an effort to comply.
Additionally, a new privacy law, the California Privacy Rights Act (“CPRA”), recently was certified by the California Secretary of State to appear on the
ballot for the November 3, 2020 election. If this initiative is approved by California voters, the CPRA would significantly modify the CCPA, potentially
resulting in further uncertainty and requiring us to incur additional costs. More generally, we cannot yet fully determine the impact these or future laws,
regulations and standards may have on our business. Privacy, data protection and information security laws and regulations are often subject to differing
interpretations, may be inconsistent among jurisdictions, and may be alleged to be inconsistent with our current or future practices. Additionally, we may be
bound by contractual requirements applicable to our collection, use, processing, and disclosure of various types of data, including personal data, and may
be bound by, or voluntarily comply with, self-regulatory or other industry standards relating to these matters. These and other requirements could reduce
demand for our products, increase our costs, impair our ability to grow our business, or restrict our ability to store and process data or, in some cases,
impact our ability to offer our service in some locations and may subject us to liability. Any failure or perceived failure to comply with applicable laws,
regulations, industry standards, and contractual obligations may adversely affect our business. Further, in view of new or modified federal, state, or foreign
laws and regulations, industry standards, contractual obligations and other legal obligations, or any changes in their interpretation, we may find it necessary
or desirable to fundamentally change our business activities and practices or to expend significant resources to modify our product and otherwise adapt to
these changes. We may be unable to make such changes and modifications in a commercially reasonable manner or at all, and our ability to develop new
products and features could be limited.
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The costs of compliance with and other burdens imposed by laws, regulations and standards may limit the use and adoption of our service and reduce
overall demand for it, or lead to significant fines, penalties, or liabilities for any noncompliance. Privacy, information security, and data protection
concerns, whether valid or not valid, may inhibit market adoption of our platform, particularly in certain industries and foreign countries.
We expect that we will experience long and unpredictable sales cycles, which may impact our operating results.
The sales cycle between initial customer contact and execution of a contract or license agreement with a customer or purchaser of our products can vary
widely. We expect that our sales cycles will be long and unpredictable due to several factors, including but not limited to:
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The need to educate potential customers about our patent rights and our product and service capabilities;
The impact of the COVID-19 pandemic on our potential customers and their business operations, including their budgetary constraints and
resources devoted to adopting new products.
Our customers’ willingness to invest potentially substantial resources and modify their network infrastructures to take advantage of our products;
Our customers’ budgetary constraints;
The timing of our customers’ budget cycles;
Delays caused by customers’ internal review processes; and
Long sales cycles that may increase the risk that our financial resources are exhausted before we are able to generate significant revenue.
In addition, potential customers of our products include local, state, federal and foreign government authorities. Sales to government authorities can be
extended and unpredictable. Government authorities generally have complex budgeting, purchasing, and regulatory processes that govern their capital
spending, and their spending is likely to be adversely impacted by economic conditions, including impacts from the COVID-19 pandemic. In addition, in
many instances, sales to government authorities may require field trials and may be delayed by the time it takes for government officials to evaluate
multiple competing bids, negotiate terms, and award contracts.
For these reasons, the sales cycle associated with our products is subject to a number of significant risks that are beyond our control. Consequently, if our
forecasted customer orders are not realized or delayed, our revenues and results of operations could be materially and adversely affected.
If we are unable to expand our revenue sources or establish, sustain, grow, or replace relationships with a diversified customer base, our revenues may
be limited.
We currently generate revenue from a limited number of customers that have entered settlement and license agreements. Our GABRIEL Collaboration
Suite™ is currently generating limited revenue, and it will take time for us to grow our installed user base and generate new customers. Additionally, there
is no guarantee that we will be able to derive revenue from new customers, sustain or increase revenue from existing customers or replace customers from
whom we currently generate revenue. As a result, our revenue may be limited or static.
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We have limited technical resources and are at an early stage in commercialization of our GABRIEL products.
Part of our business includes the internal development of commercial products we seek to monetize. This aspect of our business may require significant
capital, time and resources and we cannot guarantee that it will be successful or meet our expectations. As such, we have a small technical team, which may
limit our ability to rapidly adapt our product to customer requirements or add new product features to maintain our competitive edge and drive adoption.
Based on the scale of our technical resources, our limited historical financial data upon which to base our projected revenue or planned operating expenses
related to our GABRIEL Collaboration Suite™, we may not be able to effectively:
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Generate revenues or profit from product sales;
Drive adoption of our products;
Attract and retain customers for our products;
Provide appropriate levels of customer training and support for our products;
Implement an effective marketing strategy to promote awareness of our products;
Focus our research and development efforts in areas that generate returns on our efforts;
Anticipate and adapt to changes in our market; or
Protect our products from any system failures or other breaches.
In addition, a high percentage of our expenses are and will continue to be fixed. Accordingly, if we do not generate revenue as and when anticipated, our
losses may be greater than expected and our operating results will suffer.
Our products are highly technical and may contain undetected errors, which could cause harm to our reputation and adversely affect our business.
Our products are highly technical and complex and, when deployed, may contain errors or defects. Despite testing, some errors in our products may only be
discovered after a product has been installed and used by customers. Any errors or defects discovered in our products after commercial release could result
in failure to achieve market acceptance, loss of revenue or delay in revenue recognition, loss of customers and increased service and warranty cost, any of
which could adversely affect our business, operating results, and financial condition. In addition, we could face claims for product liability, tort, or breach
of warranty, including claims relating to changes to our products made by our channel partners. The performance of our products could have unforeseen or
unknown adverse effects on the networks over which they are delivered as well as on third-party applications and services that utilize our services, which
could result in legal claims against us, harming our business. Furthermore, we expect to provide implementation, consulting, and other technical services in
connection with the implementation and ongoing maintenance of our products, which typically involves working with sophisticated software, computing
and communications systems. We expect that our contracts with customers will contain provisions relating to warranty disclaimers and liability limitations,
which may not be upheld. Defending a lawsuit, regardless of its merit, is costly and may divert management’s attention and adversely affect the market’s
perception of us and our products. In addition, if our business liability insurance coverage proves inadequate or future coverage is unavailable on
acceptable terms or at all, our business, operating results, and financial condition could be adversely impacted.
Malfunctions of third-party communications infrastructure, hardware and software expose us to a variety of risks that we cannot control.
Our business will depend upon, among other things, the capacity, reliability, security, and unimpeded access of the infrastructure owned by third parties that
we will use to deploy our offerings. We have no control over the operation, quality, or maintenance of a significant portion of that infrastructure or whether
those third parties will upgrade or improve their equipment. We depend on these companies to maintain the operational integrity of our connections. If one
or more of these companies is unable or unwilling to supply or expand its levels of service to us in the future, our operations could be severely interrupted.
Also, to the extent that the number of users of networks utilizing our current or future products suddenly increases, the technology platform and secure
hosting services which will be required to accommodate a higher volume of traffic may result in slower response times or service interruptions. System
interruptions or increases in response time could result in a loss of potential or existing users and, if sustained or repeated, could reduce the appeal of the
networks to users. In addition, users depend on real-time communications; outages caused by increased traffic could result in delays and system failures.
These types of occurrences could cause users to perceive that our solution does not function properly and could therefore adversely affect our ability to
attract and retain licensees, strategic partners, and customers.
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System failure or interruption or our failure to meet increasing demands on our systems could harm our business.
The success of our license and service offerings will depend on the uninterrupted operation of various systems, secure data centers and other computer and
communication networks that we establish. To the extent, the number of users of networks utilizing our future products suddenly increases, the technology
platform and hosting services which will be required to accommodate a higher volume of traffic may result in slower response times, service interruptions
or delays or system failures. Our systems and operations will also be vulnerable to damage or interruption from, among other things:
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Power loss, transmission cable cuts and other telecommunications failures;
Damage or interruption caused by fire, earthquake, and other natural disasters;
Computer viruses or software defects; and
Physical or electronic break-ins, sabotage, intentional acts of vandalism, terrorist attacks and other events beyond our control.
System interruptions or failures and increases or delays in response time could result in a loss of potential or existing users and, if sustained or repeated,
could reduce the appeal of the networks to users. These types of occurrences could cause users to perceive that our solution does not function properly and
could therefore adversely affect our ability to attract and retain licensees, strategic partners, and customers.
Any significant problem with our systems or operations could result in lost revenue, customer dissatisfaction or lawsuits against us. A failure in the
operation of our secure domain name registration system could result in the inability of one or more registrars to register and maintain secure domain
names for a period of time. A failure in the operation or update of the master directory that we plan to maintain could result in deletion or discontinuation
of assigned secure domain names for a period of time. The inability of the registrar systems we establish, including our back-office billing and collections
infrastructure, and telecommunications systems to meet the demands of an increasing number of secure domain name requests could result in substantial
degradation in our customer support service and our ability to process registration requests in a timely manner.
Our ability to sell our solutions will be dependent on the quality of our technical support, and our failure to deliver high- quality technical support
services could have a material adverse effect on our sales and results of operations.
If we do not effectively assist our customers in deploying our products, succeed in helping our customers quickly resolve post- deployment issues and
provide effective ongoing support, or if potential customers perceive that we may not be able achieve to the foregoing, our ability to sell our products
would be adversely affected, and our reputation with current and potential customers could be harmed. In addition, as we expand our operations
internationally, our technical support team will face additional challenges, including those associated with delivering support, training, and documentation
in languages other than English. Our failure to deliver and maintain high-quality technical support services to our customers could result in customers
choosing to use our competitors’ products and support services instead of ours in the future.
Telephone carriers have petitioned governmental agencies to enforce regulatory tariffs, which, if granted, would increase the cost of online
communication, and such increase in cost may impede the growth of online communication and adversely affect our business.
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Use of the Internet has over-burdened existing telecommunications infrastructures, and many high traffic areas have begun to experience interruptions in
service. As a result, certain local telephone carriers have petitioned governmental agencies to enforce regulatory tariffs on IP telephony traffic that crosses
over their traditional telephone networks. If the relief sought in these petitions is granted, the costs of communicating via online could increase
substantially, potentially adversely affecting the growth in the use of online secure communications. Any of these developments could have an adverse
effect on our business.
The departure of Kendall Larsen, our Chief Executive Officer and President, and/or other key personnel could compromise our ability to execute our
strategic plan and materially harm our business.
Our success largely depends on the skills, experience, and performance of our key personnel. Due to the specialized nature of our business and limited
staff, we are particularly dependent on Kendall Larsen, our Chief Executive Officer and President. We have no employment agreements with any of our key
executives that prevent them from leaving us at any time. In addition, we do not maintain key person life insurance for any of our officers or key
employees. The loss of Mr. Larsen, or our failure to retain other key personnel or adequately plan for the succession of key personnel, would jeopardize our
ability to execute our strategic plan and materially harm our business.
We will need to recruit and retain additional qualified personnel to successfully grow our business.
Our future success will depend, in part, on our ability to attract and retain qualified engineering, operations, marketing, sales and executive personnel.
Inability to attract and retain such personnel could adversely affect our business. Competition for engineering, operations, marketing, sales, and executive
personnel is intense, particularly in the technology and Internet sectors and in the regions where we conduct our business. We may need to invest
significant amounts of cash and equity to attract and retain employees and expend significant time and resources to identify, recruit, train and integrate such
employees, and we may never realize returns on these investments. Additionally, we can provide no assurance that we will attract or retain such personnel.
Our international expansion will subject us to additional costs and risks, and our plans may not be successful.
We expect to expand our presence internationally in Japan and elsewhere through, third party arrangements such as international partnerships, joint
ventures and potentially establishing international subsidiaries and offices. Our international expansion may present challenges and risks, including those
inherent in international operations, to us and may require significant attention from management. For example, the COVID-19 pandemic could disrupt and
slow our international expansion and partnership efforts, as our international partners’ businesses could be disrupted. We may not be successful in our
international partnerships, expansion efforts, and we may incur significant operating expenses in our efforts to expand internationally.
We have incurred and will continue to incur significant increased costs as a result of operating as a public company, and our management will be
required to continue to devote substantial time to various compliance initiatives.
The Sarbanes-Oxley Act of 2002, the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, as well as other rules implemented by the
SEC and the New York Stock Exchange (“NYSE”), impose various requirements on public companies, including requiring changes in corporate
governance practices. These and proposed corporate governance laws and regulations under consideration may further increase our compliance costs. If
compliance with these various legal and regulatory requirements diverts our management’s attention from other business concerns, it could have a material
adverse effect on our business, financial condition, and operating results. The Sarbanes-Oxley Act requires, among other things, that we assess the
effectiveness of our internal control over financial reporting annually and disclosure controls and procedures quarterly. If we are unable to assert in any
future reporting periods that our internal control over financial reporting is effective (or if our independent registered public accounting firm is unable to
express an opinion on the effectiveness of our internal controls), we could lose investor confidence in the accuracy and completeness of our financial
reports, which would have an adverse effect on our share price.
Although we believe that we currently maintain effective control over our disclosures and procedures and internal control over financial reporting, we may
in the future identify deficiencies regarding the design and effectiveness of our system of internal control over financial reporting. If we experience any
material weaknesses in our internal control over financial reporting in the future or are unable to provide unqualified management or attestation reports
about our internal controls, we may be unable to meet financial and other reporting deadlines and may incur costs associated with remediation, and any of
which could cause our share price to decline. Moreover, if we identify deficiencies in our internal control over financial reporting that are deemed to be
material weaknesses in future periods, the market price of our ordinary shares could decline, and we could be subject to potential delisting by the NYSE
and review by the NYSE, the SEC, or other regulatory authorities, which would require the expenditure by us of additional financial and management
resources. As a result, our shareholders could lose confidence in our financial reporting, which would harm our business and the market price of our
ordinary shares.
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There are inherent uncertainties involved in estimates, judgments and assumptions used in the preparation of financial statements in accordance with
U.S. GAAP. Any changes in estimates, judgments and assumptions could have a material adverse effect on our business, financial condition, and
operating results.
The preparation of financial statements in accordance with U.S. GAAP involves making estimates, judgments and assumptions that affect reported amounts
of assets (including intangible assets), liabilities and related reserves, revenues, expenses, and income. Estimates, judgments and assumptions are inherently
subject to change in the future, and any such changes could result in corresponding changes to the amounts of assets, liabilities, revenues, expenses, and
income. Any such changes could have a material adverse effect on our business, financial condition, and operating results.
Our results of operations and financial condition could be materially affected by the enactment of legislation implementing changes in the U.S. or
foreign taxation of international business activities or the adoption of other tax reform policies.
As we expand the scale of our international business activities, any changes in the U.S. or foreign taxation of such activities may increase our worldwide
effective tax rate and harm our business, results of operations, and financial condition. For example, in December 2017, the legislation commonly referred
to as the Tax Cuts and Jobs Act (the “Tax Act”) was enacted, which contained significant changes to U.S. tax law, including, but not limited to, a reduction
in the corporate tax rate and a transition to a new territorial system of taxation. The impact of future changes to U.S. and foreign tax law on our business is
uncertain and could be adverse, and we will continue to monitor and assess the impact of any such changes.
War, terrorism, other acts of violence, or natural or manmade disasters may affect the markets in which we operates, our clients and our service
delivery.
Our business may be adversely affected by instability, disruption, or destruction in a geographic region in which we operates, regardless of cause, including
war, terrorism, riot, civil insurrection, or social unrest, and natural or manmade disasters, including famine, flood, fire, earthquake, storm, or pandemic
events and spread of disease, such as the COVID-19 pandemic. Such events may cause our customers to delay their decisions on spending for the services
we provide and give rise to sudden significant changes in regional and global economic conditions and cycles. These events may also pose risks to our
personnel and to physical facilities and operations, which could adversely affect our financial results.
The global COVID-19 pandemic may harm our business, financial condition, and results of operations.
In December 2019, a novel coronavirus, COVID-19 was reported in China and in March 2020, the World Health Organization declared it a pandemic. This
contagious disease outbreak has continued to spread across the globe and is impacting worldwide economic activity and financial markets. In light of the
uncertain and rapidly evolving situation relating to the spread of COVID-19, we have taken precautionary measures intended to minimize the risk of the
virus to our employees, our customers, and other third parties with whom we interact. We are requiring all employees to work remotely and have also
suspended all non-essential travel worldwide for our employees. While we have a distributed workforce and our employees are accustomed to working
remotely or working with other remote employees, our workforce is not fully remote. Our employees and consultants travel frequently to establish and
maintain relationships with one another, our customers and prospective customers, partners, and investors. Although we continue to monitor the situation
and may adjust our current policies as more information and public health guidance becomes available, temporarily suspending travel and restricting the
ability to do business in person could negatively affect our customer success efforts, sales and marketing efforts, challenge our ability to enter into customer
contracts in a timely manner, slow down our recruiting efforts, or create operational or other challenges, any of which could harm our business, financial
condition and results of operations. Furthermore, if a natural disaster, power outage, connectivity issue, or other event occurred that impacted our
employees’ ability to work remotely, it may be difficult or, in certain cases, not possible, for us to continue our business for a substantial period of time.
The increase in remote working may also result in consumer privacy, IT security and fraud concerns as well as increase our exposure to potential wage and
hour issues. In addition, the COVID-19 pandemic may disrupt the operations of our customers, partners, suppliers, and other third-party providers for an
indefinite period of time, including as a result of travel restrictions, adverse effects on budget planning processes, and/or business shutdowns, all of which
could negatively impact our business, financial condition, and results of operations. More generally, the COVID-19 pandemic could continue to adversely
affect economies and financial markets globally, potentially leading to an economic downturn, which could decrease technology spending and adversely
affect our business.
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Risks Related to Our Common Stock
Trading in our common stock is limited and the price of our common shares may be subject to substantial volatility.
Our common stock is currently listed on the NYSE and was previously listed on the NYSE American LLC (formerly the NYSE MKT LLC). Over the past
years, the market price of our common stock has experienced significant fluctuations. Between January 1, 2020, and December 31, 2020, the reported last
adjusted closing price on the NYSE American LLC, and now NYSE, for our common stock ranged between $3.20 and $7.54 per share. The price of our
common stock may continue to be volatile as a result of several factors, some of which are beyond our control. These factors include, but not limited to, the
following:
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Developments or lack thereof in any then-outstanding litigation;
Quarterly variations in our operating results;
Large purchases or sales of common stock or derivative transactions related to our stock;
Actual or anticipated announcements of new products or services by us or competitors;
General conditions in the markets in which we compete; and
General social, political, economic, and financial conditions, including the significant volatility in the global financial markets, and impacts from
the COVID-19 pandemic.
In addition, we believe there has been and may continue to be substantial trading in derivatives of our stock, including short selling activity or related
similar activities, which are beyond our control and which may be beyond the full control of the SEC and Financial Institutions Regulatory Authority
or “FINRA”. While the SEC and FINRA rules prohibit some forms of short selling and other activities that may result in stock price manipulation,
such activity may nonetheless occur without detection or enforcement. We have held conversations with regulators concerning trading activity in our
stock; however, there can be no assurance that should there be any illegal manipulation in the trading of our stock, it will be detected, prosecuted, or
successfully eradicated. Significant short selling market manipulation could cause our stock trading price to decline, to become more volatile, or both.
The market price of our common stock has been and may continue to be volatile, and you could lose all or part of your investment.
The trading price of our common stock has been volatile since our initial public offering and is likely to continue to be volatile. Factors that could cause
fluctuations in the market price of our common stock include, but are not limited to the following:
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Price and volume fluctuations in the overall stock market from time to time, including fluctuations due to general economic uncertainty or
negative market sentiment, in particular related to the COVID-19 pandemic;
Volatility in the market prices and trading volumes of companies in our industry or companies that investors consider comparable;
Changes in operating performance and stock market valuations of other companies generally, or those in our industry;
Sales of shares of our common stock by us or our stockholders;
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Failure of securities analysts to maintain coverage of us, changes in financial estimates by securities analysts who follow us, or our failure to meet
these estimates or the expectations of investors;
The financial projections we may provide to the public, any changes in those projections or our failure to meet those projections;
Announcements by us or our competitors of new products or services;
The public’s reaction to our press releases, other public announcements, and filings with the SEC;
Rumors and market speculation involving us or other companies in our industry;
Actual or anticipated changes in our results of operations;
Actual or anticipated developments in our business, our competitors’ businesses, or the competitive landscape generally;
Litigation involving us, our industry or both, or investigations by regulators into our operations or those of our competitors;
Announced or completed acquisitions of businesses or technologies by us or our competitors;
New laws or regulations or new interpretations of existing laws or regulations applicable to our business;
Changes in accounting standards, policies, guidelines, interpretations, or principles;
Any significant change in our management; and
General economic conditions and slow or negative growth of our markets, including any economic downturn from the COVID-19 pandemic;
Further, in recent years the stock markets have experienced extreme price and volume fluctuations that have affected and continue to affect the market
prices of equity securities of many companies. These fluctuations often have been unrelated or disproportionate to the operating performance of those
companies. In addition, the stock prices of many technology companies have experienced wide fluctuations that have often been unrelated to the operating
performance of those companies. These broad market and industry fluctuations, as well as general economic, political and market conditions such as
recessions, government shutdowns, global pandemics (such as the COVID-19 pandemic), interest rate changes the stability of the EU and the exit of the
United Kingdom or international currency fluctuations, may cause the market price of our common stock to decline. In the past, following periods of
volatility in the overall market and the market price of a particular company’s securities, securities class action litigation has often been instituted against
these companies.
We have broad discretion in how we apply our funds, and we may not use these funds effectively, which could affect our results of operations and cause
our stock price to decline.
Our management will have broad discretion in the application of our existing cash, cash equivalents and marketable securities and could spend these funds
in ways that do not improve our results of operations or enhance the value of our common stock. Pending their use, we may invest our available funds in a
manner that does not produce income or that loses value. The failure by our management to apply our available funds effectively could result in financial
losses that could cause the price of our common stock to decline and delay the development of our products.
In addition, an entity that, among other things, is or holds itself out as being engaged primarily, or proposes to engage primarily, in the business of
investing, reinvesting, owning, trading, or holding certain types of securities would be deemed an Investment Company under the Investment Company Act
of 1940 (the “1940 Act”). If we do not manage our investments and business in a manner that meets the requirements for an exemption under the 1940 Act,
we may be deemed to be an investment company under the 1940 Act and subject to additional limitations on operating our business including limitations
on the issuance of securities, which may make it difficult for us to raise capital.
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We do not regularly pay dividends on our common stock and thus stockholders must look to appreciation of our common stock to realize a gain on their
investments.
Our dividend policy is within the discretion of our Board of Directors and will depend upon various factors, including our business, financial condition,
results of operations, capital requirements, and investment opportunities. We therefore cannot make assurances that our Board of Directors will determine
to pay regular or special dividends in the future. Accordingly, unless our Board of Directors determines to pay dividends, stockholders will be required to
look to appreciation of our common stock to realize a gain on their investment. This appreciation may not occur.
The exercise of our outstanding stock options, warrants and RSUs and issuance of new shares would result in a dilution of our current stockholders’
voting power and an increase in the number of shares eligible for future resale in the public market which may negatively impact the market price of
our stock.
The exercise of our outstanding vested stock options, warrants and RSUs would dilute the ownership interests of our existing stockholders. As of
December 31, 2020, we had outstanding options, warrants and RSUs to purchase an aggregate of 6,341,844 shares of common stock representing
approximately 9% of our total shares outstanding of which 4,426,250 were vested and therefore exercisable. To the extent outstanding stock options are
exercised, additional shares of common stock will be issued, existing stockholders’ percentage voting interests will decline and the number of shares
eligible for resale in the public market will increase. Such increase may have a negative effect on the value or market trading price of our common stock.
The market price of our common stock may decline because our operating results may not be consistent and may be difficult to predict.
Our reported net income has fluctuated in the past due to several factors. We expect that our future operating results may also fluctuate due to the same or
similar factors. While we had net income of $280.4 million for the year ended December 31, 2020, we had net losses of $19.2 million for 2019 and $25.4
million for 2018, and as of December 31, 2020, we had accumulated deficits of $8.0 million. The following include some of the factors that may cause our
operating results to fluctuate:
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The outcome of actions to enforce our intellectual property rights currently in progress or that we may undertake in the future, and the timing
thereof;
The impact of the COVID-19 pandemic on our sales cycle and results;
The amount and timing of receipt of license fees from potential infringers, licensees, or customers;
The rate of adoption of our patented technologies;
The number of new license arrangements we may execute, or that may expire, within a particular period and the scope of those licenses, including
the number of our patents which are licensed, the extent of prior infringement of our patent rights, royalty rates, timing of payment obligations,
expiration date etc.;
The success of a licensee in selling products that use our patented technologies; and
The amount and timing of expenses related to our patent filings and enforcement proceedings, including litigation, related to our intellectual
property rights.
These fluctuations may make our business particularly difficult to manage, adversely affect our business and operating results, make our operating results
difficult for investors to predict and, further, cause our results to fall below investor’s expectations and adversely affect the market price of our common
stock.
Because ownership of our common stock is concentrated, investors may have limited influence on stockholder decisions.
As of December 31, 2020, our executive officers and directors beneficially owned approximately 13% of our outstanding common stock. In addition, a
group of stockholders that, as of December 31, 2007, held 4,766,666 shares, or approximately 7% of our outstanding common stock, have entered into a
voting agreement with us that requires them to vote all of their shares of our voting stock in favor of the director nominees approved by our Board of
Directors at each director election going forward, and in a manner that is proportional to the votes cast by all other voting shares as to any other matters
submitted to the stockholders for a vote. However, we cannot be certain how many shares of our common stock this group of stockholders currently owns.
Because of their beneficial ownership interest, our officers and directors could significantly influence stockholder actions of which you disapprove or that
are contrary to your interests. This ability to exercise significant influence could prevent or significantly delay another company from acquiring or merging
with us.
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Our protective provisions in our amended and restated certificate of incorporation and bylaws could make it difficult for a third party to successfully
acquire us even if you would like to sell your stock to them.
We have a number of protective provisions in our amended and restated certificate of incorporation and bylaws that could delay, discourage, or prevent a
third party from acquiring control of us without the approval of our Board of Directors. These protective provisions include:
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A staggered Board of Directors: This means that only one or two directors (since we have a five-person Board of Directors) will be up for
election at any given annual meeting. This has the effect of delaying the ability of stockholders to affect a change in control of us because it would
take two annual meetings to effectively replace a majority of the Board of Directors.
Blank check preferred stock: Our Board of Directors has the authority to establish the rights, preferences, and privileges of our 10,000,000
authorized, but unissued, shares of preferred stock. Therefore, this stock may be issued at the discretion of our Board of Directors with preferences
over your shares of our common stock in a manner that is materially dilutive to you. In addition, blank check preferred stock can be used to create
a “poison pill” which is designed to deter a hostile bidder from buying a controlling interest in our stock without the approval of our Board of
Directors. We have not adopted such a “poison pill;” but our Board of Directors has the ability to do so in the future, very rapidly and without
stockholder approval.
Advance notice requirements for director nominations and for new business to be brought up at stockholder meetings: Stockholders
wishing to submit director nominations or raise matters to a vote of the stockholders must provide notice to us within very specific date windows
and in very specific form in order to have the matter voted on at a stockholder meeting. This has the effect of giving our Board of Directors and
management more time to react to stockholder proposals generally and could also have the effect of disregarding a stockholder proposal or
deferring it to a subsequent meeting to the extent such proposal is not raised properly.
No stockholder actions by written consent: No stockholder or group of stockholders may take actions rapidly and without prior notice to our
Board of Directors and management or to the minority stockholders. Along with the advance notice requirements described above, this provision
also gives our Board of Directors and management more time to react to proposed stockholder actions.
Super majority requirement for stockholder amendments to the bylaws: Stockholder proposals to alter or amend our bylaws or to adopt new
bylaws can only be approved by the affirmative vote of at least 66 2/3% of the outstanding shares of our common stock.
No ability of stockholders to call a special meeting of the stockholders: Only the Board of Directors or management can call special meetings
of the stockholders. This could mean that stockholders, even those who represent a significant percentage of our shares of common stock, may
need to wait for the annual meeting before nominating directors or raising other business proposals to be voted on by the stockholders.
In addition, the provisions of Section 203 of the Delaware General Corporation Law govern us. These provisions may prohibit large stockholders,
particularly those owning 15% or more of our outstanding voting stock, from merging or combining with us for a certain period of time.
These and other provisions in our amended and restated certificate of incorporation, our bylaws and under Delaware law could discourage potential
takeover attempts, reduce the price that investors might be willing to pay for shares of our common stock in the future and result in the market price being
lower than it would be without these provisions.
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Our amended and restated bylaws designate a state or federal court located within the State of Delaware as the exclusive forum for substantially all
disputes between us and our stockholders, which could limit our stockholders’ ability to choose the judicial forum for disputes with us or our directors,
officers, or employees.
Our amended and restated bylaws provide that, unless we consent in writing to the selection of an alternative forum, the sole and exclusive forum for (1)
any derivative action or proceeding brought on our behalf, (2) any action asserting a claim of breach of a fiduciary duty owed by any of our directors,
stockholders, officers, or other employees to us or our stockholders, (3) any action arising pursuant to any provision of the Delaware General Corporation
Law, or our amended and restated certificate of incorporation or amended and restated bylaws or (4) any other action asserting a claim that is governed by
the internal affairs doctrine shall be the Court of Chancery of the State of Delaware (or, if the Court of Chancery does not have jurisdiction, another State
court in Delaware or the federal district court for the District of Delaware), in all cases subject to the court having jurisdiction over indispensable parties
named as defendants.
However, notwithstanding the exclusive forum provisions, our amended and restated bylaws explicitly state that they would not preclude the filing of
claims brought to enforce any liability or duty created under federal securities laws, including the Securities Act of 1933 or the Securities Exchange Act of
1934.
Any person or entity purchasing or otherwise acquiring any interest in any of our securities shall be deemed to have notice of and consented to this
provision. This exclusive-forum provision may limit a stockholder’s ability to bring a claim in a judicial forum of its choosing for disputes with us or our
directors, officers, or other employees, which may discourage lawsuits against us and our directors, officers, and other employees. If a court were to find
this exclusive-forum provision in our amended and restated bylaws to be inapplicable or unenforceable in an action, we may incur additional costs
associated with resolving the dispute in other jurisdictions, which could harm our results of operations.
Item 1B.
Unresolved Staff Comments.
None.
Item 2.
Properties
Our principal executive offices are located at 308 Dorla Court, Suite 206, Zephyr Cove, Nevada, 89448. We lease this property, which comprises
approximately 2,090 square feet of office space, from a third party for a term that ends in October 2021. We have no other properties and believe that our
office facility is suitable and appropriately supports our current business needs.
Item 3.
Legal Proceedings (See “Litigation” in Item 7 - Management’s Discussion and Analysis of Financial Condition and Results of
Operations)
Item 4.
Mine Safety Disclosure
Not applicable.
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PART II
Item 5.
Market for the Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities
Market Information
Our common stock currently trades under the symbol “VHC” on the NYSE.
Holders of Record
As of March 11, 2021, we had 53 stockholders of record. Because many of our shares of common stock are held of record by brokers and other institutions
on behalf of stockholders, we are unable to estimate the total number of beneficial stockholders represented by such record holders.
Dividend Policy
(See "Dividend" in Note -8, in Notes to Consolidated Financial Statements).
Securities Authorized for Issuance under Equity Compensation Plan
See Item 12, Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters for information regarding securities
authorized for issuance.
Recent Sales of Unregistered Securities
During the year ended December 31, 2020, we had no sales of unregistered securities and no repurchases of stock.
Item 6.
Not applicable
Item 7.
Management’s Discussion and Analysis of Financial Condition and Results of Operations
The Company
We are an Internet security software and technology company with patented technology for various types of secure network communications, including 5G
and 4G LTE network security. Our patented Secure Domain Name Registry and GABRIEL Connection Technology™, are the foundation for our
GABRIEL Secure Communication Platform™ that protects communications using Zero Trust Network Access (ZTNA). Our technology generates secure
connections on a “zero-click” or “single-click” basis, significantly simplifying the deployment of secure real-time communication solutions by eliminating
the need for end-users to enter any encryption information. Our portfolio of intellectual property is the foundation of our business model. We currently own
approximately 194 total patents and pending applications, including 70 U.S. patents/patent applications and 124 foreign patents/validations/pending
applications. Our patent portfolio is primarily focused on securing real-time communications over the Internet, and related services, and is used in all our
technology and products, some of which were acquired by our principal operating subsidiary; VirnetX, Inc., from Leidos, Inc., or Leidos, (f/k/a Science
Applications International Corporation, or SAIC) in 2006.
Our product portfolio includes sophisticated technologies, products and services that are available for sale worldwide. Our GABRIEL Secure
Communication Platform™ includes a set of software libraries with application interfaces available for securing third-party applications seamlessly across
multiple operating systems. It enables individuals and organizations to maintain complete ownership and control over their personal and confidential data,
secured within their own private network, while enabling authorized secure encrypted access from anywhere at any time.
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Our GABRIEL Gateway product extends our Secure Communication Platform™ by allowing existing networked devices and services to seamlessly join
the “GABRIEL SECURED” network without requiring any modifications. All these devices or services, including on-premise or cloud-based services, can
now be assigned a VirnetX Secure Domain Name and use fully authenticated, secure communication channels for its communications.
Our GABRIEL Collaboration Suite™ is a set of communication applications and tools that use our GABRIEL Secure Communication Platform™. It
enables seamless and secure cross-platform communications between devices that are enrolled in our “GABRIEL SECURED” network and have our
software installed. Our GABRIEL Collaboration Suite™ is available for download and free trial, for Android, iOS, Windows, Linux, and Mac OS X
platforms, at https://virnetx.com.
We continue to enhance our products and add new functionality. We will provide updates to new and existing customers as they are released to the public.
Many small and medium businesses have installed our GABRIEL Secure Communication Platform™ and GABRIEL Collaboration Suite™ products in
their corporate networks. We intend to continue to expand our customer base with targeted promotions and direct sales initiatives.
We have an ongoing GABRIEL Licensing Program under which we offer licenses to a portion of our patent portfolio, technology, and software, including
our secure domain name registry service, to domain infrastructure providers, communication service providers as well as to system integrators. Our
GABRIEL Connection Technology™ License is offered to OEM customers who want to adopt the GABRIEL Connection Technology™ as their solution
for establishing secure connections using secure domain names within their products. We have developed GABRIEL Connection Technology™ Software
Development Kit (SDK) to assist with rapid integration of these techniques into existing software implementations. Customers who want to develop their
own implementation of the VirnetX patented techniques for supporting secure domain names, or other techniques that are covered by our patent portfolio
for establishing secure communication links, can purchase a patent license. The number of patents licensed, and therefore the cost of the patent license to
the customer, will depend upon which of the patents are used in a particular product or service. These licenses will typically include an initial license fee, as
well as an ongoing royalty.
Our employees include the core development team behind our patent portfolio, technology, and software. Some members of this team have worked together
for over twenty years and were on same team that invented and developed this technology while working at Leidos, Inc. (“Leidos”). The team has
continued its research and development work and expanded the set of patents we acquired in 2006 from Leidos, into a larger patent portfolio. This portfolio
now serves as the foundation of our products, services, and our licensing business. It is expected to generate most of our future revenue in license fees and
royalties. We intend to continue our efforts to develop new products and technologies and further strengthen and expand our patent portfolio. We intend to
continue using an outsourced and leveraged model to maintain efficiency and manage costs as we grow our licensing business by, for example, offering
incentives to early licensing targets or asserting our rights for use of our patents.
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Index
Litigation (all dollar amounts in this section are expressed in thousands except for rates per device)
We have several intellectual property infringement lawsuits pending in the United States District Court for the Eastern District of Texas, Tyler Division
(“USDC”), and United States Court of Appeals for the Federal Circuit (“USCAFC”) and the Supreme Court of the United States (“SCOTUS”).
VirnetX Inc. v. Cisco Systems, Inc. et al. (Case 6:10-CV-00417-LED) (“Apple I”)
On August 11, 2010, we filed a complaint against Aastra USA. Inc. (“Aastra”), Apple Inc. (“Apple”), Cisco Systems, Inc. (“Cisco”), and NEC Corporation
(“NEC”) the USDC in which we alleged that these parties infringe on certain of our patents (U.S. Patent Nos. 6,502,135, 7,418,504, 7,921,211 and
7,490,151). We sought damages and injunctive relief. The cases against each defendant were separated by the judge. Aastra and NEC agreed to sign license
agreements with us, and we dropped all accusations of infringement against them. A jury in USDC decided that our patents were not invalid and rendered a
verdict of non-infringement by Cisco on March 4, 2013. Our motion for a new Cisco trial was denied and the case against Cisco was closed.
On November 6, 2012, a jury in the USDC awarded us over $368,000 for Apple’s infringement of four of our patents, plus daily interest up to the final
judgment.
Apple filed an appeal of the judgment to the USCAFC. On September 16, 2014, USCAFC affirmed the USDC jury’s finding that all four of our patents at
issue are valid and confirmed the USDC jury’s finding of infringement of VPN on Demand under many of the asserted claims of our ‘135 and ‘151 patents,
and the USDC’s decision to allow evidence about our license and royalty rates regarding the determination of damages. However, the USCAFC vacated the
USDC jury’s damages award and some of the USDC’s claim construction with respect to parts of our ‘504 and ‘211 patents and remanded the damages
award and determination of infringement with respect to FaceTime back to the USDC for further proceedings.
On September 30, 2016, pursuant to the 2014 remand from the USCAFC, a jury in the USDC awarded us $302,400 for Apple’s infringement of four of our
patents. On September 29, 2017, the USDC entered its final judgment, denied all of Apple’s post-trial motions, granted all our post-trial motions, including
our motion for willful infringement and enhanced the royalty rate during the willfulness period from $1.20 to $1.80 per device, and awarded us costs,
certain attorneys’ fees, and prejudgment interest. The total amount in the final judgment was $439,700, including $302,400 (jury verdict), $41,300
(enhanced damages) and $96,000 (costs, fees, and interest).
On October 27, 2017 Apple appealed the final judgment entered on September 29, 2017 to the USCAFC. Oral arguments in this case were held on January
8, 2019. On January 15, 2019, the Court issued a Rule 36 order affirming the district court’s final judgment. Apple filed a petition for panel rehearing and
rehearing en-banc in this matter on February 21, 2019. On October 1, 2019, USCAFC issued an order denying Apple’s petition. Apple filed a petition for a
writ of certiorari with the SCOTUS, which was denied on February 24, 2020. Prior to the SCOTUS decision denying Apple’s petition for a writ of
certiorari, on February 20, 2020, Apple filed a Rule 60(b) motion for relief from judgment with the USDC, seeking relief from the district court’s
September 29, 2017 final judgment. VirnetX filed a responsive brief in opposition on March 5, 2020.
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Index
On March 13, 2020, the Company received payment of $454,034 from Apple, representing the previously announced final judgment with interest in this
case. Apple sought payment relief by filing a motion under Rule 60(b). On September 1, 2020 USDC issued an order denying Apple’s motion for relief of
judgement. This case is now closed.
VirnetX Inc. v. Apple, Inc. (Case 6:12-CV-00855-LED) (“Apple II”)
This case began on November 6, 2012, when we had filed a complaint against Apple in USDC in which we alleged that Apple infringed on certain of our
patents, (U.S. Patent Nos. 6,502,135, 7,418,504, 7,921,211 and 7,490,151). We sought damages and injunctive relief. The accused products include the
iPhone 5, iPod Touch 5th Generation, iPad 4th Generation, iPad mini, and the latest Macintosh computers; these products were not included in the Apple I
case because they were released after the Apple I case was initiated. Post-trial motions hearing was held on July 18, 2018. On August 31, 2018, the USDC
entered a Final Judgment and issued its Memorandum Opinion and Order regarding post-trial motions, affirming the jury’s verdict of $502,600 and
granting VirnetX motions for supplemental damages, a sunset royalty, and the royalty rate of $1.20 per infringing iPhone, iPad and Mac products, pre-
judgment and post-judgment interest and costs. Apple filed a notice of appeal with the USCAFC in the Apple II case.
On October 9, 2018, USCAFC docketed the appeal as Case No. 19-1050 - VirnetX Inc. v. Apple Inc . On January 24, 2019 Apple filed its opening brief.
We filed our response brief on March 1, 2019. Apple filed its reply brief on April 5, 2019. The oral arguments were heard on October 4, 2019. On
November 22, 2019, the USCAFC issued an opinion affirming the district court’s findings that Apple is precluded from making certain invalidity
arguments and that Apple infringed the ’135 and ’151 patents; reversing the USDC’s finding that Apple infringed the ’504 and ’211 patents; and remanding
the case for proceedings on damages. Apple sought panel and en banc rehearing, which the USCAFC denied on February 10, 2020.
On February 22, 2020, the USDC issued a scheduling order for the parties to brief the court about the need for a new trial for recalculating the damages.
We filed our motion for entry of judgment on February 28, 2020. The arguments on this matter were heard on April 14, 2020. In its order, unsealed on May
1, 2020, the USDC denied VirnetX’s motion for entry of a new judgment based on the prior jury verdict and ordered a new jury trial on damages. On
August 10, 2020, the USDC granted Apple’s motion for continuance and reset the date to October 26, 2020. On October 30, 2020, a jury returned a
$502,800 verdict in favor of VirnetX based on Apple’s infringement of two network security patents: VirnetX US Patents No. 6,502,135 and No. 7,490,151.
The jury verdict called for damages of $0.84 per accused device since the 2013 launch of Apple’s iOS 7 operating system and represents 598,629,580
infringing units from US sales only. On January 15, 2021, the district court denied Apple’s motion for judgment as a matter of law, and on February 4,
2021, Apple filed a notice of appeal to the USCAFC.
VirnetX Inc. v. Mangrove Partners Master Fund, Ltd., Apple Inc. (USCAFC Case 20-2271) and VirnetX Inc. v. Mangrove Partners Master Fund,
Ltd., Apple Inc., and Black Swamp, LLC (USAFC Case 20-2272)
On September 15, 2020, we filed with the USCAFC an appeal of the invalidity findings by the PTAB in inter-partes review proceedings IPR2015-01046
and IPR2016-00062 involving our U.S. Patent No. 6,502,135, and an appeal of the invalidity findings by the PTAB in inter partes review proceedings
IPR2015-1047, IPR2016- 00063, and IPR2016-00167 involving our U.S. Patent No. 7,490,151. On September 25, 2020, the USCAFC issued an order
consolidating the two appeals. On December 15, 2020, we filed a motion to vacate the PTAB decisions below and to remand these appeals to the PTAB,
which remains pending. In view of our motion to remand, our deadline to file an initial brief is currently stayed.
Iancu v. Luoma (SCOTUS Case 20-74)
On July 23, 2020, the United States and the USPTO (collectively, “the United States”) filed a petition for a writ of certiorari from several decisions by the
USAFC, including decisions in VirnetX Inc. v. Cisco Systems, Inc., Nos. 2019-1671, and VirnetX Inc. v. Iancu, Nos. 2017-2593, -2594. In those cases, the
USAFC granted VirnetX’s motions to vacate the underlying decisions of the PTAB on the basis of Arthrex, Inc. v. Smith & Nephew, Inc., 941 F.3d 1320
(Fed. Cir. 2019), and remanded for further proceedings. The United States requested that the SCOTUS hold its certiorari petition pending the disposition of
the United States’ separate petition in United States v. Arthrex, Inc., No. 19-1434 (filed June 25, 2020). On August 26, 2020, VirnetX filed a response,
agreeing that the United States’ certiorari petition should be held pending the disposition of the petition for a writ of certiorari in No. 19-1434 (and related
petitions filed by private parties in Nos. 19-1452 and 19-1458), and any further SCOTUS proceedings.
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Index
On October 13, 2020, SCOTUS granted the United States’ petition for a writ of certiorari in No. 19-1434 as to USAFC Case No. 2018-2140, and the
petitions for writs of certiorari in Nos. 19-1452 and 19-1458, all limited to Questions 1 and 2 as set forth in the July 22, 2020 Memorandum for the United
States filed in No. 19-1434. The consolidated petition is seeking review of decisions by the USCAFC holding that administrative patent judges (“APJ”) of
the Patent Trial and Appeal Board of the U.S. Patent and Trademark Office must be appointed by the President and confirmed by the Senate; and, whether
the remedy imposed by USCAFC that federal laws that place restrictions on when officials can be removed from office cannot apply to APJ, was the
appropriate one. SCOTUS heard oral argument in these consolidated cases on March 1, 2021.
McKool Smith P.C. v. VirnetX, Inc., AAA Case No. 01-20-0003-7975
On March 23, 2020, the law firm of McKool Smith, P.C. (“McKool”) filed a Demand for Arbitration against VirnetX, Inc. with the American Arbitration
Association (“AAA”). In its demand, McKool claims that a retention agreement it entered into in 2010 with VirnetX entitles it to a contingency fee arising
from the recent 2020 payment made by Apple. McKool claims it is owed approximately $36,300 (or 8% of the Apple I payment). We have filed a general
response with the AAA denying McKool’s claim and are contesting the matter vigorously. An evidentiary hearing was held on the matter during the week
of February 22, 2021 and the parties will be submitting additional briefing. A ruling is expected sometime thereafter.
Neal Hurwitz v. Kendall Larsen et al. (Case 2020-0425-JRS)
On June 2, 2020, stockholder Neal Hurwitz filed a verified derivative complaint in the Delaware Court of Chancery against Kendall Larsen, Robert D.
Short Ill, Gary Feiner, Michael F. Angelo, and Thomas M. O’Brien and naming the Company as nominal defendant. The lawsuit alleges breaches of
fiduciary duty, corporate waste, and unjust enrichment arising out of a series of previously-disclosed transactions and compensation awards and seeks an
award of monetary damages and equitable relief. On July 1, 2020, the defendants filed a motion to dismiss the complaint based on a failure to plead
demand futility and a failure to state a claim on which relief can be granted and, on August 19, 2020, the defendants filed an opening brief in support of
their motion to dismiss. On October 16, 2020, plaintiff amended his complaint rather than respond to the arguments in the defendants’ opening brief. On
October 23, 2020, the defendants filed a renewed motion to dismiss plaintiff’s amended complaint based on a failure to plead demand futility and a failure
to state a claim on which relief can be granted. On January 12, 2021, Hurwitz voluntarily dismissed his suit without prejudice.
Other Legal Matters
One or more potential intellectual property infringement claims may also be available to us against certain other companies who have the resources to
defend against any such claims. Although we believe these potential claims are likely valid, commencing a lawsuit can be expensive and time-consuming,
and there is no assurance that we could prevail on such potential claims if we made them. In addition, bringing a lawsuit may lead to potential
counterclaims which may distract our management and our other resources, including capital resources, from efforts to successfully commercialize our
products.
Currently, we are not a party to any other pending legal proceedings and are not aware of any proceeding threatened or contemplated against us.
Commitments and Related Party Transactions
We lease our offices under an operating lease with a third party expiring in October 2021. We recognize rent expense on a straight-line basis over the term
of the lease.
We entered into a service agreement for the use of an aircraft from K2 Investment Fund LLC (“LLC”) for business travel for employees of the Company.
We incurred approximately $324, and $1,790 in rental fees and reimbursements to the LLC during the years ended December 31, 2020, and 2019,
respectively. We pay for the Company’s business usage of the aircraft and have no right to purchase. Our Chief Executive Officer and Chief Administrative
Officer are the managing partners of the LLC and control the equity interests of the LLC. We entered into a 12-month non-exclusive agreement with the
LLC for use of the plane at a rate of $8 per flight hour, with no minimum usage requirement. The agreement contains other terms and conditions normal in
such transactions and can be cancelled by either us or the LLC with 30 days’ notice. The agreement renews on an annual basis unless terminated by either
party. Neither party has exercised their termination rights.
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Index
Critical Accounting Policies
The preparation of financial statements in conformity with accounting principles generally accepted in the United States (“GAAP”) requires us to make
estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the
financial statements and the reported amounts of revenues and expenses during the reported period. The critical accounting policies we employ in the
preparation of our consolidated financial statements are those which involve impairment of long-lived assets, income taxes, fair value of financial
instruments and stock-based compensation.
Basis of Consolidation
The consolidated financial statements include the accounts of VirnetX Holding Corporation and our wholly-owned subsidiaries. All intercompany balances
and transactions have been eliminated.
Use of Estimates
We prepare our consolidated financial statements in accordance with U.S. GAAP. In doing so, we must make estimates and assumptions that affect our
reported amounts of assets, liabilities, revenues, and expenses, as well as related disclosure of contingent assets and liabilities. In some cases, we could
reasonably have used different accounting policies and estimates. In some cases, changes in our accounting estimates are reasonably likely to occur.
Accordingly, actual results could differ materially from our estimates. To the extent that there are material differences between these estimates and actual
results, our financial condition or results of operations will be affected. We base our estimates on experience and other assumptions that we believe are
reasonable under the circumstances, at the time they are made, and we evaluate these estimates on an ongoing basis. We refer to accounting estimates of
this type as critical accounting policies and estimates, which we discuss further below.
Leases
The Company determines if an arrangement, giving the Company a right-of-use (“ROU”) asset, is a lease at inception. Operating lease ROU assets are
included in other assets on the Condensed Consolidated Balance Sheet. ROU assets represent the Company’s right to use an underlying asset for the lease
term and lease liabilities represent the Company’s obligation to make lease payments arising from the lease. ROU assets and lease liabilities are recognized
at the commencement date of the arrangement based on the present value of lease payments over the lease term. Other assets at December 31, 2020, include
a ROU asset related to a facility lease for corporate promotional and marketing purposes. The facility lease was paid in full at inception and the ROU is
being amortized over the term of the lease. Other assets also include an ROU related to our office operating lease which expires in October 2021 (See Note
13 - Leases).
Revenue Recognition
The Company derives revenue from licensing and royalty fees from contracts with customers which often span several years. We account for this revenue
in accordance with Accounting Standards Codification (“ASC”) Topic 606, Revenue from Contracts with Customers. A performance obligation is a
promise in a contract to transfer a distinct good or service to the customer. A contract’s transaction price is allocated to each distinct performance obligation
and recognized as revenue when, or as, the performance obligation is satisfied. Our revenue arrangements may consist of multiple-element arrangements,
with revenue for each unit of accounting recognized as the product or service is delivered to the customer.
With the licensing of our patents, performance obligations are generally satisfied at a point in time as work is complete when our patent rights are
transferred to our customers. We generally have no further obligation to our customers regarding our technology.
Certain contracts may require our customers to enter into a hosting arrangement with us and for these arrangements, revenue is recognized over time,
generally over the life of the servicing contract.
The Company actively monitors and enforces its intellectual property (“IP”) rights, including seeking appropriate compensation from third parties that
utilize the Company’s IP without a license. As a result, the Company may, from time to time, receive payments as part of a settlement or compensation for
a patent infringement dispute. Proceeds received are allocated to each element identified in the settlement or compensation, based on the fair value of each
element. Generally, settlements and compensation may include the following elements: the value of a license or royalty agreement, cost reimbursement,
damages, and interest. Elements identified related to licensing and royalty are recognized as revenue. Elements identified as reimbursed costs are generally
recorded as a reduction to the reported expenses. Elements identified as damages or interest are generally recorded in other income in the condensed
consolidated statement of operations.
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Index
Licensing Costs
Licensing costs are incurred pursuant to favorable court decisions relating to patent infringement cases and are included in operating expenses in the
Company’s consolidated statement of operations.
Contingent Gains
ASC Topic 450-30-25, Contingent Gains, prohibits recognition of contingent gains until realized. Accordingly, we do not record contingent gains ahead of
such realization. Management generally considers any such gains as realized only upon the collection of cash.
Earnings (Loss) Per Share
Basic earnings (loss) per share are computed by dividing earnings (loss) available to common stockholders by the weighted average number of outstanding
common shares during the period. Diluted earnings per share are computed by dividing net income by the weighted average number of shares outstanding
during the period increased to include the number of additional shares of common stock that would have been outstanding if the potentially dilutive
securities had been issued.
Concentration of Credit Risk and Other Risks and Uncertainties
Our cash and cash equivalents are primarily maintained at two major financial institutions in the United States. A portion of those balances are insured by
the Federal Deposit Insurance Corporation. During the year ended December 31, 2020, we had funds which were uninsured. We do not believe that we are
subject to any unusual financial risk beyond the normal risk associated with commercial banking relationships with major financial institutions. We have
not experienced any losses on our deposits of cash and cash equivalents.
Impairment of Long-Lived Assets
We identify and record impairment losses on long-lived assets used in operations when events and changes in circumstances indicate that the carrying
amount of an asset might not be recoverable, but not less than annually. Recoverability is measured by comparison of the anticipated future net
undiscounted cash flows to the related assets’ carrying value. If such assets are considered to be impaired, the impairment to be recognized is measured by
the amount by which the carrying amount of the assets exceeds the projected discounted future net cash flows arising from the asset.
Income Taxes
We account for income taxes using the asset and liability method. The asset and liability method require the recognition of deferred tax assets and liabilities
for expected future tax consequences of temporary differences that currently exist between the tax basis and financial reporting basis of our assets and
liabilities. We calculate current and deferred tax provisions based on estimates and assumptions that could differ from actual results reflected on the income
tax returns filed during the following years. Adjustments based on filed returns are recorded when identified in the subsequent years. The effect on deferred
taxes for a change in tax rates is recognized in income in the period that the tax rate change is enacted. In assessing our deferred tax assets, we consider
whether it is more likely than not that all or some portion of the deferred tax assets will not be realized.
A valuation allowance is provided for deferred income tax assets when, in our judgment, based upon currently available information and other factors, it is
more likely than not that all or a portion of such deferred income tax assets will not be realized. The determination of the need for a valuation allowance is
based on an on-going evaluation of current information including, among other things, historical operating results, estimates of future earnings in different
taxing jurisdictions and the expected timing of the reversals of temporary differences. We believe the determination to record a valuation allowance to
reduce a deferred income tax asset is a significant accounting estimate because it is based, among other things, on an estimate of future taxable income in
the United States and certain other jurisdictions, which is susceptible to change and may or may not occur, and because the impact of adjusting a valuation
allowance may be material. In determining when to release the valuation allowance established against our net deferred income tax assets, we consider all
available evidence, both positive and negative. Due to the 2020 income, we have released the valuation allowance against federal net deferred tax assets,
and we maintain a partial valuation allowance against the state net operating loss and credit carryovers due to lack of income in California. We continually
assess our ability to generate sufficient taxable income during future periods in which our deferred tax assets may be realized. If and when we believe it is
more likely than not that we will recover our deferred tax assets, we will reverse the valuation allowance as an income tax benefit in our statements of
operations.
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We account for our uncertain tax positions in accordance with U.S. GAAP. The U.S. GAAP method of accounting for uncertain tax positions utilizes a two-
step approach to evaluate tax positions. Step one, recognition, requires evaluation of the tax position to determine if based solely on technical merits it is
more likely than not to be sustained upon examination. Step two, measurement, is addressed only if a position is more likely than not to be sustained. In
step two, the tax benefit is measured as the largest amount of benefit, determined on a cumulative probability basis, which is more likely than not to be
realized upon ultimate settlement with tax authorities. If a position does not meet the more likely than not threshold for recognition in step one, no benefit
is recorded until the first subsequent period in which the more likely than not standard is met, the issue is resolved with the taxing authority, or the statute
of limitations expires. Positions previously recognized are derecognized when we subsequently determine the position no longer is more likely than not to
be sustained. Evaluation of tax positions, their technical merits, and measurements using cumulative probability are highly subjective management
estimates. Actual results could differ materially from these estimates.
Stock-based Compensation
We account for stock-based compensation using the fair value recognition method. We recognize these compensation costs on a straight-line basis over the
requisite service period of the award, which is generally based on the option vesting term of 4 years.
In addition, we record stock-based compensation expense for awards granted to non-employees at fair value of the consideration received or the fair value
of the equity investments issued generally as they vest over the performance period.
Fair Value
We apply fair value accounting to all financial assets and liabilities and non-financial assets and liabilities that are recognized or disclosed at fair value in
the financial statements on a recurring basis. Fair value is estimated by applying the following hierarchy, which prioritizes the inputs used to measure fair
value into three levels and bases the categorization within the hierarchy upon the lowest level of input that is available and significant to the fair value
measurement:
Level 1 – Quoted prices in active markets for identical assets or liabilities.
Level 2 – Observable inputs other than quoted prices in active markets for identical assets and liabilities, quoted prices for identical or similar assets or
liabilities in inactive markets, or other inputs that are observable or can be corroborated by observable market data for substantially the full term of the
assets or liabilities.
Level 3 – Inputs that are generally unobservable and typically reflect management’s estimate of assumptions that market participants would use in
pricing the asset or liability.
Our financial instruments are stated at amounts that equal, or are intended to approximate, fair value. When we approximate fair value, we utilize market
data or assumptions that we believe market participants would use in pricing the financial instrument, including assumptions about risk and inputs to the
valuation technique. We use quoted valuation techniques, primarily the income and market approach that maximize the use of observable inputs and
minimize the use of unobservable inputs for recurring fair value measurements.
New Accounting Pronouncements
In December 2019, the Financial Accounting Standards Board (“FASB”) issued Accounting Standards Update (“ASU”) 2019-12 Income Taxes (Topic
740). The amendments in this ASU simplify the accounting for income taxes by removing certain exceptions to the general principles in Topic 740. The
amendments also improve consistent application of and simplify U.S. GAAP for other areas of Topic 740 by clarifying and amending existing guidance.
The amendments in this ASU are effective for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2020. We are
currently evaluating the impact, if any this ASU will have on our consolidated financial statements and related disclosures.
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In June 2016, the FASB issued ASU 2016-13, Measurement of Credit Losses on Financial Instruments, and issued subsequent amendments to the initial
guidance within ASU 2019-04 and ASU 2019-05 (collectively, “ASU 2016-13”). The amendments in ASU 2016-13 replace the incurred loss impairment
methodology with the current expected credit loss model, which requires consideration of a broader range of reasonable and supportable information to
estimate credit losses. The Company adopted this ASU effective January 1, 2020 and the adoption did not have a material impact on the Company’s
financial position, results of operations or cash flows.
Results of Operations (all amounts in this section are expressed in thousands)
Revenue
Revenue
2020
2019
$
302,636 $
85
Revenue generated for the year ended December 31, 2020 was $302,636 compared to revenue for the year ended December 31, 2019 of $85. During the
year ended December 31, 2020, the Company collected a lump sum payment of $454,034 from Apple, Inc. (see “Legal Proceedings”), as a result of a
favorable court decision relating to a patent infringement case. The one-time payment includes past royalties, damages for willful infringement, interest,
court costs and attorneys’ fees. (See “Revenue Recognition” in Note 2 - Summary of Significant Accounting Policies, in the Notes to Consolidated
Financial Statements.)
We recognized royalty revenue as part of license agreements entered into with customers during the patent infringement actions (see “Litigation”). These
revenues relate to payment for use of our patented technology prior to the signing of a license agreement, and royalty payments after the execution of the
license agreements.
Licensing Costs
Included in operating expenses for the year ended December 31, 2020, were $90,101 in licensing costs we incurred in conjunction with the proceeds
received from Apple Inc., pursuant to a favorable court decision relating to a patent infringement case.
Research and Development Expenses
Research and Development
2020
2019
$
8,830 $
3,845
Research and development costs include expenses paid to outside development consultants and compensation-related expenses for our engineering staff.
Research and development costs are expensed as incurred.
Our research and development expenses for the year ended December 31, 2020 were $8,830 compared to December 31, 2019 of $3,845. The increase in
2020 compared to 2019 was primarily due to increased compensation expense.
Selling, General and Administrative Expenses
Selling, General and Administrative
2020
2019
$
45,812 $
15,905
Selling, general and administrative expenses include compensation expense for management and administrative personnel, as well as expenses for outside
legal, accounting, and consulting services.
Our selling, general and administrative expenses for the year ended December 31, 2020 were $45,812 compared to December 31, 2019 of $15,905. The
volatility within selling, general and administrative expenses was primarily due to legal fees related to cases involving the defense of our patents. Legal
fees were $30,699 and $5,898 in 2020 and 2019, respectively and represent approximately 67% of selling, general and administrative expenses for 2020
compared to 37% for 2019.
Gain on Settlement
For the year ended December 31, 2020, we recorded a gain of $41,271 pursuant to a favorable court ruling in the case regarding Apple, Inc. discussed
above. (See “Revenue Recognition” in Note 2 - Summary of Significant Accounting Policies, in the Notes to Consolidated Financial Statements.)
Interest and Other Income, net
Interest and Other Income
2020
2019
$
108,288 $
92
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Interest and other income for the year ended December 31, 2020 was $108,288 compared to December 31, 2019 of $92. During 2020 we received interest
of $108,221 pursuant to a favorable court ruling in the case with Apple, Inc. discussed above. (See “Revenue Recognition” in Note 2 - Summary of
Significant Accounting Policies, in the Notes to Consolidated Financial Statements.)
Effective Income Tax Rate
A reconciliation of the United States federal statutory income tax rate to our effective income tax rate is as follows:
United States federal statutory rate
State taxes, net of federal benefit
Valuation allowance
Stock based compensation
R&D Credit
Other
Effective income tax rate
Year Ended
December 31, 2020
Year Ended
December 31, 2019
21.00 %
0.17 %
(12.22) %
(0.01) %
(0.21) %
0.06 %
8.79 %
21.00 %
1.99 %
(21.96) %
—
1.34 %
(0.38) %
1.99 %
The Company’s effective tax rate for both 2020 and 2019 was lower than the statutory Federal income tax rate primarily due to the change in valuation
allowance. In 2020 we had pre-tax income of $307,452 and in 2019 we had pre-tax losses of $19,573. At December 31, 2020, we had state net operating
loss carryforwards of $107,989. All of the Federal net operating loss (NOL) carryforwards have been utilized to offset the taxable income in 2020. The
state NOL carryforwards begin expiring in 2029.
Liquidity and Capital Resources
For the year ended December 31, 2020, our cash and cash equivalents totaled $192,908 and our short-term investments totaled $28,348 compared to $3,135
and $2,394, respectively, for the year ended December 31, 2019.
We expect that our cash and cash equivalents and short-term investments as of December 31, 2020, will be sufficient to fund our current level of selling,
general and administration costs, including legal expenses and provide related working capital for the foreseeable future. Over the longer term, we expect
to derive the majority of our future revenue from license fees and royalties associated with our patent portfolio, technology, software and secure domain
name registry in the United States and other markets around the world.
Universal Shelf Registration and ATM Offering
On July 30, 2018 we filed a $100,000 universal shelf registration statement on SEC Form S-3 which was declared effective by the SEC on August 16,
2018. We also entered an at-the-market equity offering sales agreement (“ATM”) with Cowen & Company, LLC on August 31, 2018, under which we can
offer and sell shares of our common stock having an aggregate value of up to $50,000.
We use the ATM proceeds for GABRIEL product development, marketing, and general corporate purposes, which may include working capital, capital
expenditures, other corporate expenses and acquisitions of complementary products, technologies, or businesses. As of December 31, 2020, common stock
with an aggregate value of up to $21,964 remained available for offer and sale under the ATM agreement.
During the year ended December 31, 2020, we sold 1,049,382 shares under the ATM. The average sales price per common share was $4.41 and the
aggregate proceeds from the sales totaled $4,627 during the period. Sales commissions, fees and other costs associated with the ATM totaled $139.
Item 7A.
Quantitative and Qualitative Disclosures about Market Risk
Consistent with the rules applicable to “smaller reporting companies,” we have omitted the information required by Item 7A.
34
Index
Item 8. Financial Statements and Supplementary Data
FINANCIAL STATEMENTS
Financial Statements Index
Report of Farber Hass Hurley LLP, Independent Registered Public Accounting Firm
Consolidated Balance Sheets of VirnetX Holding Corporation as of December 31, 2020 and December 31, 2019
Consolidated Statements of Operations of VirnetX Holding Corporation for the years ended December 31, 2020 and, December 31, 2019
Consolidated Statements of Comprehensive Income (Loss) of VirnetX Holding Corporation for the years ended December 31, 2020 and December
31, 2019
Consolidated Statements of Stockholders’ Equity of VirnetX Holding Corporation for the years ended December 31, 2020 and, December 31, 2019
Consolidated Statements of Cash Flows of VirnetX Holding Corporation for the years ended December 31, 2020, and December 31, 2019
Notes to Consolidated Financial Statements of VirnetX Holding Corporation
Page
36
38
39
39
40
41
42
35
Index
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and
Stockholders of VirnetX Holding Corporation
Opinion on the Financial Statements
We have audited the accompanying consolidated balance sheets of VirnetX Holding Corporation (the “Company”) as of December 31, 2020 and 2019, and
the related consolidated statements of operations, comprehensive income (loss), stockholders’ equity, and cash flows for each of the years in the two-year
period ended December 31, 2020, and the related notes (collectively referred to as the financial statements). In our opinion, the financial statements present
fairly, in all material respects, the financial position of the Company as of December 31, 2020, and 2019, and the results of its operations and its cash flows
for each of the years in the two-year period ended December 31, 2020, in conformity with accounting principles generally accepted in the United States of
America.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (“PCAOB”), the Company’s
internal control over financial reporting as of December 31, 2020, based on criteria established in Internal Control—Integrated Framework (2013) issued
by the Committee of Sponsoring Organizations of the Treadway Commission (“COSO”), and our report dated March 16, 2021, expressed an unqualified
opinion.
Basis for Opinion
These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s financial
statements based on our audits. We are a public accounting firm registered with the PCAOB and are required to be independent with respect to the
Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the
PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable
assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. Our audits included performing
procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to
those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audits
also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the
financial statements. We believe that our audits provide a reasonable basis for our opinion.
Critical Audit Matters
The critical audit matters communicated below are matters arising from the current period audit of the financial statements that were communicated or
required to be communicated to the audit committee and that: (1) relate to accounts or disclosures that are material to the financial statements and (2)
involved our especially challenging, subjective, or complex judgments. The communication of critical audit matters does not alter in any way our opinion
on the financial statements, taken as a whole, and we are not, by communicating the critical audit matters below, providing separate opinions on the critical
audit matters or on the accounts or disclosures to which they relate.
36
Index
Description of the Matter
Revenue Recognition
As discussed in Notes 2 and 12 to the financial statements, during the year ended December 31, 2020 the
Company collected a lump sum payment in the amount of $454 million from Apple Inc. on a judgement as a
result of a favorable verdict relating to a patent infringement lawsuit. As disclosed by management, the process
for determining the value of revenue from the basis of the award was identified in the Final Judgement which
included, fixed royalty rate per device, damages for willful infringement, interest, and reimbursement for court
costs and attorney’s fees.
Our determination that revenue recognition pertaining to the Final Judgement is a critical audit matter results from
the significant judgment exercised by management in determining the classification. Processes involving higher
amounts of management judgment include the interpretation of the provisions of the Final Judgement to
determine the amount of revenue to recognize and whether or not the Company is acting as a principal in the
fulfillment of the identified performance obligations.
Audit Procedures
Our principal audit procedures related to the Company’s revenue recognition for the Final Judgement included the
following:
Description of the Matter
- We evaluated the Company’s internal controls related to the identification of distinct performance
obligations and the determination of the timing of revenue recognition.
- We evaluated management’s significant accounting policies related to the Final Judgement.
- We obtained and read the Final Judgement and evaluated and tested management’s identification of the
significant terms for completeness. From the terms in the Final Judgement, we evaluated the appropriateness of
management’s application of their accounting principles, in their determination of revenue recognition
conclusions.
- We tested the mathematical accuracy of management’s calculations of the classification of the Final
Judgement as well as the associated timing of revenue recognized in the financial statements.
Deferred Taxes
As discussed in Notes 2 and 10 to the financial statements, the Company recorded a deferred tax asset, net of a
valuation allowance as of December 31, 2020. In assessing the ability to realize the deferred tax assets,
management considers whether it is more likely than not that some portion or all of the deferred tax assets will not
be realized. The valuation allowance is based on management’s estimates of future taxable income and application
of relevant income tax law.
Our determination that valuation of deferred taxes is a critical audit matter results from the significant judgment
by management when assessing the ability to realize the deferred tax assets, particularly as it relates to estimates
of future taxable income. This in turn led to a high degree of auditor judgment, subjectivity, and effort in
performing procedures relating to management’s assessment of the realizability of deferred tax assets, as it relates
to estimates of future taxable income and application of income tax law.
Audit Procedures
Our principal audit procedures related to the Company’s deferred taxes included the following:
- We evaluated management’s assessment of the realizability of deferred tax assets on a jurisdictional
basis. This included evaluating estimates of future taxable income, evaluating management's application of
income tax law, and testing the completeness and accuracy of underlying data used in management’s assessment.
- We evaluated management’s estimates of future taxable income which involved evaluating whether the
estimates used by management were reasonable considering the current and past performance of the respective
entity and whether the estimates were consistent with evidence obtained in other areas of the audit.
/s/ Farber Hass Hurley LLP
We have served as the Company’s auditor since 2008.
Chatsworth, California
March 16, 2021
37
VIRNETX HOLDING CORPORATION
CONSOLIDATED BALANCE SHEETS
(in thousands, except share amounts)
ASSETS
Index
Current assets:
Cash and cash equivalents
Investments available for sale
Accounts receivables
Prepaid income tax
Prepaid expenses and other current assets
Total current assets
Prepaid expenses and other assets
Property and equipment, net
Long term, deferred tax asset
Total assets
LIABILITIES AND STOCKHOLDERS’ EQUITY
Current liabilities:
Accounts payable and accrued liabilities
Accrued payroll and related expenses
Accrued licensing costs
Other liabilities, current
Total current liabilities
Other liabilities
Total liabilities
Commitments and contingencies (Note 4)
Stockholders’ equity:
As of
December 31, 2020
As of
December 31, 2019
$
$
$
192,908 $
28,348
8
2,905
263
224,432
1,301
11
9,049
234,793 $
654 $
220
9,438
44
10,356
—
10,356
3,135
2,394
5
—
237
5,771
1,711
16
—
7,498
1,346
287
—
193
1,826
44
1,870
Preferred stock, par value $0.0001 per share Authorized: 10,000,000 shares at December 31, 2020 and
December 31, 2019, Issued and outstanding: 0 shares at December 31, 2020 and December 31, 2019
—
—
Common stock, par value $0.0001 per share
Authorized: 100,000,000 shares at December 31, 2020 and December 31, 2019, Issued and outstanding:
71,058,570 shares and 69,586,764 shares, at December 31, 2020 and December 31, 2019, respectively
Additional paid-in capital
Accumulated deficit
Accumulated other comprehensive loss
Total stockholders’ equity
Total liabilities and stockholders’ equity
See accompanying notes to consolidated financial statements.
38
7
232,457
(8,014)
(13)
224,437
234,793 $
7
223,237
(217,602)
(14)
5,628
7,498
$
Index
Revenue
Operating expense:
Licensing costs
Research and development
Selling, general and administrative expenses
Total operating expense
Income (loss) from operations
Gain on settlement
Interest and other income, net
Income (loss) before taxes
Income tax (expense) benefit
Net income (loss)
Basic earnings (loss) per share
Diluted earnings (loss) per share
Weighted average shares outstanding basic
Weighted average shares outstanding diluted
VIRNETX HOLDING CORPORATION
CONSOLIDATED STATEMENTS OF OPERATIONS
(in thousands, except share and per share amounts)
Year Ended
December 31, 2020
$
$
$
$
Year Ended
December 31, 2019
85
302,636 $
90,101
8,830
45,812
144,743
157,893
41,271
108,288
307,452
(27,023)
280,429 $
3.96 $
3.92 $
70,850,311
71,615,843
—
3,845
15,905
19,750
(19,665)
—
92
(19,573)
393
(19,180)
(0.28)
(0.28)
68,564,321
68,564,321
VIRNETX HOLDING CORPORATION
CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME (LOSS)
(in thousands)
Year Ended
December 31, 2020
Net income (loss)
Other comprehensive (loss), net of tax:
Change in unrealized gain (loss) on investments
Change in foreign currency translation
Total other comprehensive gain (loss), net of tax
Comprehensive income (loss)
See accompanying notes to consolidated financial statements.
39
$
$
Year Ended
December 31, 2019
(19,180)
280,429 $
—
1
1
280,430 $
3
(3)
—
(19,180)
Index
VirnetX Holding Corporation
CONSOLIDATED STATEMENTS OF STOCKHOLDERS’ EQUITY
(in thousands, except share amounts)
Common Stock
Additional
Balance at December 31, 2018
Stock issued for cash at $4.00 -$6.49 per
share, net
Stock issued for options and RSUs, net
Stock-based compensation
Comprehensive loss:
Net loss
Change in foreign currency translation,
net of tax
Change in unrealized gains, net of tax
Comprehensive loss
Balance at December 31, 2019
Stock issued for cash at $4.00 -$4.96 per
share, net
Stock issued for options and RSUs, net
Stock-based compensation
Warrants issued for services
Dividends declared and paid, $1.00 per
share
Comprehensive income:
Net income
Change in foreign currency translation,
net of tax
Comprehensive income
Balance at December 31, 2020
Shares
66,879,847 $
Amount
1,860,483
846,434
Paid-in
Capital
Accumulated
Deficit
Accumulated
Other
Comprehensive
Loss
Total
Stockholders’
Equity
7 $
208,317 $
(198,422) $
(14) $
9,888
10,539
670
3,711
(19,180)
(3)
3
69,586,764 $
7 $
223,237 $
(217,602) $
(14) $
1,049,382
422,424
4,488
690
3,938
104
(70,841)
280,429
1
71,058,570 $
7 $
232,457 $
(8,014) $
(13) $
10,539
670
3,711
(19,180)
(3)
3
(19,180)
5,628
4,488
690
3,938
104
(70,841)
280,429
1
280,430
224,437
See accompanying notes to consolidated financial statements.
40
Index
VIRNETX HOLDING CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
Cash flows from operating activities:
Net income (loss)
Adjustments to reconcile net income (loss) to net cash provided by (used in) operating activities:
Year Ended
December 31, 2020
Year Ended
December 31, 2019
$
280,429 $
(19,180)
Depreciation
Stock-based compensation
Amortization of warrant issuance costs
Deferred income taxes
Changes in assets and liabilities:
Prepaid expenses and other assets
Accounts payable and accrued liabilities
Other liabilities
Accrued payroll and related expenses
Accrued licensing costs
Accounts receivable
Prepaid income taxes
Net cash provided by (used in) operating activities
Cash flows from investing activities:
Purchase of property and equipment
Purchase of investments
Proceeds from sale or maturity of investments
Net cash used in investing activities
Cash flows from financing activities:
Proceeds from exercise of options
Proceeds from sale of common stock
Payment of dividends on common stock
Payments on payroll taxes on cashless vesting of RSUs
Net cash (used in) provided by financing activities
Net increase (decrease) in cash and cash equivalents
Cash and cash equivalents, beginning of period
Cash and cash equivalents, end of period
Cash paid for income taxes
See accompanying notes to consolidated financial statements.
5
3,938
69
(9,049)
419
(692)
(193)
(67)
9,438
(3)
(2,905)
281,389
—
(33,065)
7,112
(25,953)
1,046
4,488
(70,841)
(356)
(65,663)
189,773
3,135
192,908 $
38,977 $
7
3,711
—
—
374
296
97
10
—
1
(396)
(15,080)
(14)
(5,784)
5,192
(606)
816
10,539
—
(145)
11,210
(4,476)
7,611
3,135
4
$
$
41
Index
VirnetX Holding Corporation
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(in thousands except share, per share and per device amounts)
Note 1 − Formation and Business of the Company
VirnetX Holding Corporation, which we refer to as” we”, “us”, “our”, “the Company” or “VirnetX”, is engaged in the business of commercializing a
portfolio of patents. We seek to license our technology, including GABRIEL Connection Technology™, to various original equipment manufacturers, or
OEMs, that use our technologies in the development and manufacturing of their own products within the IP-telephony, mobility, fixed-mobile convergence,
and unified communications markets. Prior to 2012 our revenue was limited to an insignificant amount of software royalties pursuant to the terms of a
single license agreement. During 2012, 2013 and 2020 we had revenues from settlements of patent infringement disputes whereby we received
consideration for past sales of licensees that utilized our technology, where there was no prior patent license agreement (see “Revenue Recognition”).
Our portfolio of intellectual property is the foundation of our business model. We currently own approximately 194 total patents and pending applications,
including 70 U.S. patents/patent applications and 124 foreign patents/validations/pending applications. Our patent portfolio is primarily focused on
securing real-time communications over the Internet, as well as related services such as the establishment and maintenance of a secure domain name
registry. Our patented methods also have additional applications in the key areas of device operating systems and network security for Cloud services,
M2M communications in areas of Smart City, Connected Car and Connected Home. The subject matter of all our U.S and foreign patents and pending
applications relates generally to securing communications over the Internet and such covers all our technology and other products. Our issued U.S. and
foreign patents expire at various times during the period from 2020 to 2024. Some of our issued patents and pending patent applications were acquired by
our principal operating subsidiary; VirnetX, Inc., from Leidos, (f/k/a Science Applications International Corporation or SAIC) in 2006 and we are required
to make payments to Leidos, based on cash or certain other values generated from those patents. The amount of such payments depends upon the type of
value generated, and certain categories are subject to maximums and other limitations.
Note 2 − Summary of Significant Accounting Policies
The preparation of financial statements in conformity with accounting principles generally accepted in the United States requires us to make estimates and
assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements
and the reported amounts of revenues and expenses during the reported period. The critical accounting policies we employ in the preparation of our
consolidated financial statements are those which involve impairment of long-lived assets, income taxes, fair value of financial instruments and stock-based
compensation.
Use of Estimates
We prepare our consolidated financial statements in accordance with accounting principles generally accepted in the U.S. (“U.S. GAAP”). In doing so, we
have to make estimates and assumptions that affect our reported amounts of assets, liabilities, revenues, and expenses, as well as related disclosure of
contingent assets and liabilities. In some cases, we could reasonably have used different accounting policies and estimates. In some cases, changes in the
accounting estimates are reasonably likely to occur from period to period. Accordingly, actual results could differ materially from our estimates. To the
extent that there are material differences between these estimates and actual results, our financial condition or results of operations will be affected. We
base our estimates on past experience and other assumptions that we believe are reasonable under the circumstances, and we evaluate these estimates on an
ongoing basis. We refer to accounting estimates of this type as critical accounting policies and estimates, which we discuss further below. We have
reviewed our critical accounting policies and estimates with the audit committee of our board of directors.
Basis of Consolidation
The consolidated financial statements include the accounts of VirnetX Holding Corporation and our wholly owned subsidiaries. All intercompany balances
and transactions have been eliminated.
42
Index
Leases
The Company determines if an arrangement is a lease at inception in accordance with Accounting Standards Codification (“ASC”) Topic 842. Operating
lease right-of-use (“ROU”) assets are included in Prepaid expense, and other assets on the Consolidated Balance Sheet. ROU assets represent the
Company’s right to use an underlying asset for the lease term and lease liabilities represent the Company’s obligation to make lease payments arising from
the lease. ROU assets and lease liabilities are recognized at the commencement date based on the present value of lease payments over the lease term (see
Note 13 – Leases).
Revenue Recognition
The Company derives revenue from licensing and royalty fees from contracts with customers which often span several years. We account for this revenue
in accordance with Accounting Standards Codification Topic 606, Revenue from Contracts with Customers. A performance obligation is a promise in a
contract to transfer a distinct good or service to the customer. A contract’s transaction price is allocated to each distinct performance obligation and
recognized as revenue when, or as, the performance obligation is satisfied. Our revenue arrangements may consist of multiple-element arrangements, with
revenue for each unit of accounting recognized as the product or service is delivered to the customer.
With the licensing of our patents, performance obligations are generally satisfied at a point in time as work is complete when our patent rights are
transferred to our customers. We generally have no further obligation to our customers regarding our technology.
Certain contracts may require our customers to enter into a hosting arrangement with us and for these arrangements, revenue is recognized over time,
generally over the life of the servicing contract.
The Company actively monitors and enforces its intellectual property (“IP”) rights, including seeking appropriate compensation from third parties that
utilize the Company’s IP without a license. As a result, the Company may, from time to time, receive payments as part of a settlement or compensation for
a patent infringement dispute. Proceeds received are allocated to each element identified in the settlement or compensation, based on the fair value of each
element. Generally, settlements and compensation may include the following elements: the value of a license or royalty agreement, cost reimbursement,
damages, and interest. Elements identified related to licensing and royalty are recognized as revenue. Elements identified as reimbursed costs are generally
recorded as a reduction to the reported expenses. Elements identified as damages or interest are generally recorded in other income in the condensed
consolidated statement of operations. During the year ended December 31, 2020, the Company collected a lump sum payment of $454,034 from Apple,
Inc., because of a favorable court decision relating to a patent infringement case. The court decision identified the following as the basis of the award:
$302,428 for past royalties, $41,271 in damages for willful infringement, $108,221 for interest, and $2,114 in reimbursement for court costs and attorney’s
fees (see Note 12 - Litigation). Elements of the payment were recognized in the Company’s condensed consolidated statement of operations as follows:
Classification of Payment Received in the Company’s Condensed Consolidated Statement of Operations
Year Ended:
Revenue (royalties)
Operating expenses: selling, general and administrative (reimbursed litigation costs)
Other income: gain (willful infringement)
Other income: interest income (pre- and post-judgment interest)
Total cash received
Licensing Costs
December 31, 2020
302,428
$
2,114
41,271
108,221
454,034
$
Included in operating expenses for the year ended December 31, 2020, is $90,101 in licensing costs we incurred in conjunction with the proceeds received
from Apple Inc., pursuant to a favorable court decision relating to a patent infringement case.
Contingent Gains
We recognize gain contingencies in accordance with ASC 450-30-25 which prohibits recognition of contingent gains until realized. Accordingly, we do not
record contingent gains ahead of such realization. Management generally considers any such gains as realized only upon the collection of cash.
43
Index
Cash and Cash Equivalents
We consider all highly liquid investments purchased with original maturities of three months or less at the date of purchase to be cash equivalents. Our cash
and cash equivalents are not subject to significant interest rate risk due to the short maturities of these investments.
Investments
Investments are classified as available-for-sale and are recorded at fair market value. Unrealized gains and losses are reported as other comprehensive
income. Realized gains and losses are recorded in income in the period they are realized using specific identification of each security’s cost basis. We invest
our excess cash primarily in highly liquid debt instruments including corporate, government and federal agency securities, with contractual maturities less
than two years. By policy, we limit the amount of credit exposure to any one issuer.
Property and Equipment
Property and equipment are stated at historical cost, less accumulated depreciation, and amortization. Depreciation and amortization are computed using the
accelerated and straight-line methods over the estimated useful lives of the assets, which range from five to seven years. Repair and maintenance costs are
charged to expense as incurred.
Concentration of Credit Risk and Other Risks and Uncertainties
Our cash and cash equivalents are primarily maintained at two major financial institutions in the United States. Deposits held with these financial
institutions may exceed the amount of insurance provided on such deposits. A portion of those balances are insured by the Federal Deposit Insurance
Corporation, or FDIC. During the year ended December 31, 2020 and 2019, we had, at times, funds that were uninsured. We do not believe that we are
subject to any unusual financial risk beyond the normal risk associated with commercial banking relationships. We have not experienced any losses on our
deposits of cash and cash equivalents.
Fair Value
The carrying amounts of our financial instruments, including cash equivalents, accounts payable, and accrued liabilities, approximate fair value because of
their generally short maturities.
Intangible Assets
We record intangible assets at cost, less accumulated amortization. Amortization of intangible assets is provided over their estimated useful lives, which
can range from 3 to 15 years, on either a straight-line basis or as revenue is generated by the assets.
Impairment of Long-Lived Assets
We identify and record impairment losses on long-lived assets used in operations when events and changes in circumstances indicate that the carrying
amount of an asset might not be recoverable, but not less than annually. Recoverability is measured by comparison of the anticipated future net
undiscounted cash flows to the related assets’ carrying value. If such assets are considered to be impaired, the impairment to be recognized is measured by
the amount by which the carrying amount of the assets exceeds the projected discounted future net cash flows arising from the asset.
Research and Development
Research and development costs include expenses paid to outside development consultants and compensation related expenses for our engineering staff.
Research and development costs are expensed as incurred.
Income Taxes
We account for income taxes using the asset and liability method. The asset and liability method requires the recognition of deferred tax assets and
liabilities for expected future tax consequences of temporary differences that currently exist between the tax basis and financial reporting basis of our assets
and liabilities. We calculate current and deferred tax provisions based on estimates and assumptions that could differ from actual results reflected on the
income tax returns filed during the following years. Adjustments based on filed returns are recorded when identified in the subsequent years. The effect on
deferred taxes for a change in tax rates is recognized in income in the period that the tax rate change is enacted. In assessing our deferred tax assets, we
consider whether it is more likely than not that all or some portion of the deferred tax assets will not be realized.
44
Index
A valuation allowance is provided for deferred income tax assets when, in our judgment, based upon currently available information and other factors, it is
more likely than not that all or a portion of such deferred income tax assets will not be realized. The determination of the need for a valuation allowance is
based on an on-going evaluation of current information including, among other things, historical operating results, estimates of future earnings in different
taxing jurisdictions and the expected timing of the reversals of temporary differences. We believe the determination to record a valuation allowance to
reduce a deferred income tax asset is a significant accounting estimate because it is based, among other things, on an estimate of future taxable income in
the United States and certain other jurisdictions, which is susceptible to change and may or may not occur, and because the impact of adjusting a valuation
allowance may be material. In determining when to release the valuation allowance established against our net deferred income tax assets, we consider all
available evidence, both positive and negative. Due to the 2020 income, we have released the valuation allowance against federal net deferred tax assets,
and we maintain a partial valuation allowance against the state net operating loss and credit carryovers due to lack of income in California. We continually
assess our ability to generate sufficient taxable income during future periods in which our deferred tax assets may be realized. If and when we believe it is
more likely than not that we will recover our deferred tax assets, we will reverse the valuation allowance as an income tax benefit in our statements of
operations.
We account for our uncertain tax positions in accordance with U.S. GAAP. The U.S. GAAP method of accounting for uncertain tax positions utilizes a two-
step approach to evaluate tax positions. Step one, recognition, requires evaluation of the tax position to determine if based solely on technical merits it is
more likely than not to be sustained upon examination. Step two, measurement, is addressed only if a position is more likely than not to be sustained. In
step two, the tax benefit is measured as the largest amount of benefit, determined on a cumulative probability basis, which is more likely than not to be
realized upon ultimate settlement with tax authorities. If a position does not meet the more likely than not threshold for recognition in step one, no benefit
is recorded until the first subsequent period in which the more likely than not standard is met, the issue is resolved with the taxing authority, or the statute
of limitations expires. Positions previously recognized are derecognized when we subsequently determine the position no longer is more likely than not to
be sustained. Evaluation of tax positions, their technical merits, and measurements using cumulative probability are highly subjective management
estimates. Actual results could differ materially from these estimates.
Stock-Based Compensation
We account for stock-based compensation using the fair value recognition method in accordance with U.S. GAAP. We recognize these compensation costs
on a straight-line basis over the requisite service period of the award, which is generally the vesting term of 4 years. We do not estimate the forfeiture rate
and recognize forfeitures, if any, when they occur. See Note 6 - Stock-Based Compensation below for additional information concerning our share-based
compensation awards.
In addition, as required we record stock-based compensation expense for awards granted to non-employees at fair value of the consideration received or the
fair value of the equity instruments issued as they vest over the performance period.
Earnings per Share
Basic earnings per share are computed by dividing earnings available to common stockholders by the weighted average number of outstanding common
shares during the period. Diluted earnings per share is computed by dividing net income by the weighted average number of shares outstanding during the
period increased to include the number of additional shares of common stock that would have been outstanding if the potentially dilutive securities had
been issued. During 2019 we incurred losses; therefore, the effect of any common stock equivalent would be anti-dilutive during the year.
New Accounting Pronouncements
In December 2019, the Financial Accounting Standards Board (“FASB”) issued Accounting Standards Update (“ASU”) 2019-12 Income Taxes (Topic
740). The amendments in this ASU simplify the accounting for income taxes by removing certain exceptions to the general principles in Topic 740. The
amendments also improve consistent application of and simplify U.S. GAAP for other areas of Topic 740 by clarifying and amending existing guidance.
The amendments in this ASU are effective for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2020. We are
currently evaluating the impact, if any this ASU will have on our consolidated financial statements and related disclosures.
45
Index
In June 2016, the Financial Accounting Standards Board (“FASB”) issued Accounting Standards Update (“ASU”) 2016-13, Measurement of Credit Losses
on Financial Instruments, and issued subsequent amendments to the initial guidance within ASU 2019-04 and ASU 2019-05 (collectively, “ASU 2016-
13”). The amendments in ASU 2016-13 replace the incurred loss impairment methodology with the current expected credit loss model, which requires
consideration of a broader range of reasonable and supportable information to estimate credit losses. The Company adopted this ASU effective January 1,
2020 and the adoption did not have a material impact on the Company’s financial position, results of operations or cash flows.
Note 3 − Property and Equipment
Our major classes of property and equipment were as follows:
Office furniture
Computer equipment
Total
Less accumulated depreciation
Total property and equipment, net
December 31
2020
2019
79 $
81
160
(149)
11 $
79
81
160
(144)
16
$
$
Depreciation expense for the years ended December 31, 2020 and 2019 was $5, and $7, respectively.
Note 4 − Commitments, Contingencies and Related Party Transactions
We lease our offices under an operating lease with a third party expiring in October 2021. We recognize rent expense on a straight-line basis over the term
of the lease. Rent expense was $56, for each of the years ended December 31, 2020, and 2019. Future minimum rents due under the lease total $46 in 2021,
when the lease expires.
We entered into a service agreement for the use of an aircraft from K2 Investment Fund LLC (“LLC”) for business travel for employees of the Company.
We incurred approximately $324 and $1,790 in rental fees and reimbursements to the LLC during the years ended December 31, 2020 and 2019,
respectively. We pay for the Company’s usage of the aircraft and have no rights to purchase. Our Chief Executive Officer and Chief Administrative Officer
are the managing partners of the LLC and control the equity interests of the LLC. We entered into a 12-month non-exclusive agreement with the LLC for
use of the plane at a rate of $8 per flight hour, with no minimum usage requirement. The agreement contains other terms and conditions normal in such
transactions and can be cancelled by either us or the LLC with 30 days’ notice. The agreement renews on an annual basis unless terminated by either party.
Neither party has exercised their termination rights.
Note 5 − Stock Plan
We have a stock incentive plan for employees and others called the VirnetX Holding Corporation 2013 Equity Incentive Plan (the “2013 Plan”), which has
been approved by our stockholders. To the extent that any award should expire, become un-exercisable or is otherwise forfeited, the shares subject to such
award will again become available for issuance under the 2013 Plan. The 2013 Plan provides for the granting of stock options and restricted stock units
purchase rights (“RSUs”) to our employees and consultants. Stock options granted under the 2013 Plan may be incentive stock options or nonqualified
stock options. Incentive stock options (“ISOs”) may only be granted to our employees (including officers and directors). Nonqualified stock options
(“NSOs”) and stock purchase rights may be granted to our employees and consultants.
The 2013 Plan will expire in 2023. Options may be granted under the 2013 Plan with an exercise price determined by our Board of Directors, or a duly
appointed committee thereof, provided, however, that the exercise price of an option granted to any employee shall be not less than 100% of the fair market
value at the date of grant in the case of ISOs or 85% of the fair market value at the date of grant in the case of an NSO. The exercise price of an ISO or
NSO granted to one of our Named Executive Officers shall not be less than 100% fair market value of the shares at the date of grant and the exercise price
of an ISO granted to a 10% shareholder shall not be less than 110% of the fair market value of the shares on the date of grant. Stock options granted under
the 2013 Plan typically vest over four years and have a 10-year term. All RSUs are considered to be granted at the fair value of our stock on the date of
grant because they have no exercise price. RSUs typically vest over four years. At December 31, 2020, there were 545,210 shares available for grant under
the 2013 Plan.
46
Index
Note 6 − Stock-Based Compensation
The following tables summarize information about stock options and RSUs outstanding at December 31, 2020:
Options Outstanding
Range of
Exercise Prices
$ 2.35 - 6.95
$ 14.52 - 35.25
Number
Outstanding
4,558,896
1,253,625
5,812,521
Weighted
Average
Remaining
Contractual
Life (Years)
Weighted
Average
Exercise
Price
Options Vested and Exercisable
Weighted
Average
Remaining
Contractual
Life (Years)
Weighted
Average
Exercise
Price
Number
Exercisable
7.04 $
1.71 $
5.89 $
4.53
23.16
8.62
3,147,625
1,253,625
4,401,250
6.47 $
1.71 $
5.11 $
4.26
23.16
9.64
The following tables summarize activity under the Plan for the indicated periods:
Outstanding at December 31, 2018
Options granted
Options exercised
Options cancelled
Outstanding at December 31, 2019
Options granted
Options exercised
Options cancelled
Outstanding at December 31, 2020
Options exercisable at December 31, 2020
Outstanding at December 31, 2018
RSUs granted
RSUs vested
RSUs cancelled
Outstanding at December 31, 2019
RSUs granted
RSUs vested
Outstanding at December 31, 2020
Number of
Shares
5,998,837 $
345,000
(663,816)
(50,000)
5,630,021 $
747,500
(262,031)
(302,969)
5,812,521 $
4,401,250 $
Options
Weighted
Average
Exercise
Price
Weighted
Average
Remaining
Contractual
Life (Years)
Aggregate
Intrinsic
Value
7.72
6.06
1.23
4.95
8.49
6.07
3.99
5.30
8.55
9.64
— $
—
—
—
6.11 $
—
—
—
5.89 $
5.11 $
—
—
—
—
516
—
—
—
3,650
2,927
RSUs
Weighted
Average
Grant Date
Fair Value
Aggregate
Intrinsic
Value
3.83 $
6.06
4.07
4.65
4.71 $
6.89
4.63
5.69 $
—
—
—
86
—
—
230
Number of
RSUs
504,994 $
229,996
(207,334)
(29,167)
498,489 $
218,329
(212,495)
504,323 $
Intrinsic value is calculated as the difference between the per-share market price of our common stock on the last trading day of 2020, which was $5.04 and
the exercise price of the options. For options exercised, the intrinsic value is the difference between market price and the exercise price on the date of
exercise. We received cash proceeds of $1,046 and $816 from stock options exercised in 2020 and 2019, respectively. The total intrinsic value of options
exercised was $151 and $2,473 during the years ended December 31, 2020 and 2019, respectively.
Stock-based compensation expense is included in operating expense for each period as follows:
Stock-Based Compensation by Type of Award
Stock options
RSUs
Total stock-based compensation expense
Year Ended
December 31, 2020
Year Ended
December 31, 2019
2,756
955
3,711
2,872 $
1,066
3,938 $
$
$
47
Index
As of December 31, 2020, there was $5,249 of unrecognized stock-based compensation expense related to unvested employee stock options and $2,215 of
unrecognized stock-based compensation expense related to unvested RSUs. These costs are expected to be recognized over a weighted-average period of
2.24 and 2.33 years, respectively.
The fair value of each option grant was estimated on the date of grant using the Black-Scholes option pricing model using the following weighted average
assumptions:
Expected stock price volatility
Risk-free interest rate
Expected life term
Expected dividends
Year Ended
December 31, 2020
Year Ended
December 31, 2019
93.45%
0.63%
92.34%
2.09%
6.21 years
6.14 years
0%
0%
Based on the Black-Scholes option pricing model, the weighted average estimated fair value of employee stock options granted was $4.62 and $4.63 per
share during the years ended December 31, 2020 and 2019, respectively.
The expected life was determined using the simplified method outlined in ASC 718, “Compensation - Stock Compensation”. Expected volatility of the
stock options was based upon historical data and other relevant factors. We have not provided an estimate for forfeitures because we have had nominal
forfeited options and RSUs and believed that all outstanding options and RSUs at December 31, 2020, would vest.
Note 7 − Earnings Per Share
Basic earnings per share are based on the weighted average number of shares outstanding for a period. Diluted earnings per share are based upon the
weighted average number of shares and potentially dilutive common shares outstanding. Potential common shares outstanding principally include stock
options and RSUs under our stock plan and warrants. During 2019, we incurred losses; therefore, the effect of any common stock equivalent would be anti-
dilutive during the year.
The table below sets forth the basic and diluted loss per share calculations:
Net income (loss)
Basic weighted average number of shares outstanding
Effect of dilutive securities
Diluted weighted average number of shares outstanding
Basic earnings (loss) per share
Diluted earnings (loss) per share
Note 8 − Common Stock
2020
2019
$
280,429 $
(19,180)
70,850
766
71,616
$
$
3.96 $
3.92 $
68,564
—
68,564
(0.28)
(0.28)
Each share of common stock has the right to one vote. The holders of common stock are entitled to receive dividends whenever funds are legally available
and when declared by our Board of Directors, subject to the prior rights of holders of all classes of stock outstanding having priority rights as to dividends.
Our restated articles of incorporation authorize us to issue up to 100,000,000 shares of $0.0001 par value common stock.
On July 30, 2018 we filed a $100,000 universal shelf registration statement on SEC Form S-3. This replacement registration statement was declared
effective by the SEC on August 16, 2018. We also entered a new ATM with Cowen on August 31, 2018, under which we could offer and sell shares of our
common stock having an aggregate value of up to $50,000.
We use the ATM proceeds for GABRIEL product development and marketing, and general corporate purposes, which may include working capital, capital
expenditures, other corporate expenses and acquisitions of complementary products, technologies, or businesses. As of December 31, 2020, common stock
with an aggregate value of up to $21,964 remained available for offer and sale under the ATM agreement.
48
Index
We sold 1,049,382 and 1,860,483 shares of common stock under the ATM program during the years ended December 31, 2020 and 2019, respectively. The
average sales price per common share sold during the year ended December 31, 2020 was $4.41 and the aggregate proceeds from the sales totaled $4,627
during the period. Sales commissions, fees and other costs associated with the ATM transactions totaled $139 for 2020. The average sales price per
common share sold during the year ended December 31, 2019 was $5.84 and the aggregate proceeds from the sales totaled $10,866 during the period. Sales
commissions, fees and other costs associated with the ATM transactions totaled $326 for 2019.
Dividends
On May 8, 2020, we declared a one-time cash dividend to shareholders of record as of the close of business on May 18, 2020 of $1 per share of common
stock, payable on May 26, 2020. The timing and amounts of future dividends, if any, will depend on market conditions, corporate business and financial
considerations and regulatory requirements.
Warrants
In 2020, we issued warrants for the purchase of 25,000 shares of common stock at an exercise price of $5.75 per share, exercisable on the date of grant
expiring in April 2025. The weighted average fair value at the grant date was $4.16 per warrant. The fair value at the grant date was estimated utilizing the
Black-Scholes valuation model with the following weighted average assumptions (i) dividend yield on our common stock of 0 percent (ii) expected stock
price volatility of 97 percent (iii) a risk-free interest rate of 0.27 percent and (iv) and expected option term of 5 years.
Warrants
Issued
Exercise
Price
25,000
25,000
$7.00
$5.75
—
Outstanding and
Exercisable
December 31, 2019
25,000
—
25,000
Issued
Exercised
—
25,000
25,000
Terminated /
Cancelled
—
—
—
(25,000)
—
(25,000)
Outstanding and
Exercisable
December 31, 2020
—
25,000
25,000
Expiration Date
April 30, 2020
April 30, 2025
—
Note 9 − Employee Benefit Plan
We sponsor a defined contribution 401k plan covering substantially all our employees. Our matching contribution to the plan was approximately $112 and
$101 in 2020 and 2019, respectively.
Note 10 − Income Taxes
The income tax provision (benefit) is comprised of the following:
Current:
Federal
State
Deferred:
Federal
State
Total income tax provision (benefit)
Year Ended
December 31, 2020
Year Ended
December 31, 2019
$
$
35,122 $
950
36,072
(8,816)
(233)
(9,049)
27,023 $
—
(393)
(393)
—
—
—
(393)
A reconciliation of the United States federal statutory income tax rate to our effective income tax rate is as follows:
United States federal statutory rate
State taxes, net of federal benefit
Valuation allowance
Stock based compensation
R&D Credit
Other
Effective income tax rate
Year Ended
December 31, 2020
Year Ended
December 31, 2019
21.00%
0.17%
(12.22)%
(0.01)%
(0.21)%
0.06%
8.79%
21.00%
1.99%
(21.96)%
—
1.34%
(0.38)%
1.99%
The Company’s effective tax rate for both 2020 and 2019 was lower than the statutory federal income tax rate primarily due to the change of valuation
allowance. Due to the income in 2020, our valuation allowance against federal net deferred tax assets was fully released in 2020. We continue to provide
partial valuation allowance against California net operating loss and research credit carryovers due to the fact that we have no income in California.
49
Index
Deferred tax assets (liabilities) consist of the following:
Deferred tax assets:
Reserves and accruals
Research and development credits and other credits
Net operating loss carry forward
Stock based compensation
Other
Total deferred tax assets
Valuation allowance
Deferred tax assets after valuation allowance
Total deferred tax liability
Net deferred tax assets
As of
December 31, 2020
As of
December 31, 2019
$
$
48 $
13
598
8,998
3
9,660 $
(611)
9,049
—
$
9,049 $
62
1,730
27,907
8,402
11
38,112
(38,112)
—
—
—
In 2020 and 2019, we had pre-tax income of $307,452 and pre-tax losses of $19,573, respectively. At December 31, 2020, we had federal and state net
operating loss carryforwards of approximately $0 and $107,989, respectively. All of the federal net operating loss carryforwards has been utilized to offset
taxable income in 2020. The state net operating loss carryforward will be expiring beginning in 2029.
A valuation allowance is provided for deferred tax assets when, in our judgment, based upon currently available information and other factors, it is more
likely than not that all or a portion of such deferred income tax assets will not be realized. The determination of the need for a valuation allowance is based
on an on-going evaluation of current information including, among other things, historical operating results, estimates of future earnings in different taxing
jurisdictions and the expected timing of the reversals of temporary differences. We believe the determination to record, or reduce, a valuation allowance
associated with a deferred income tax asset is a significant accounting estimate because it is based, among other things, on an estimate of future taxable
income in the United States and certain other jurisdictions, which is susceptible to change and may or may not occur, and because the impact of adjusting a
valuation allowance may be material. In determining when to release the valuation allowance established against our net deferred income tax assets, we
consider all available evidence, both positive and negative.
Internal Revenue Code Section 382 places a limitation on the amount of net operating loss carryforwards that can be used to offset taxable income after a
change in control (generally greater than 50% change in ownership) of a loss corporation. California, the state in which our headquarters was once located,
has similar rules. Since the Company did not have a greater than 50% change of control as defined under the Internal Revenue Code, no limitation applies
to the Company’s Net Operating Losses.
We are required to recognize the financial statement effects of a tax position when it is more likely than not, based on the technical merits, that the position
will be sustained upon examination. In 2019, we released all ASC 740-10 uncertain tax positions due to the expiring of the statute of limitation. At
December 31, 2020, we have no uncertain tax positions.
Our tax years for 2005 and forward are subject to examination by the U.S. tax authority and various state tax authorities. These years are open due to NOLs
and tax credits generated in these years were utilized in 2020. The statute of limitation for these years shall expire three years after the date of filing 2020
income tax returns.
Our policy is to recognize interest and penalties, if any, accrued on any unrecognized tax benefits, as a component of income tax expense. We had no
interest or penalties accrued for the year ended December 31, 2020 or 2019.
50
Index
Reconciliation of provision for uncertain tax position discussed above:
Balance at the beginning of the year
Additions based on tax positions related to the current year
Additions for tax positions of prior years
Settlements
Lapse of applicable statute of limitations
Balance at the end of the year
Note 11 − Fair Value Measurement
Year Ended
December 31, 2020
Year Ended
December 31, 2019
316
—
—
—
(316)
—
— $
—
—
—
—
— $
$
$
We apply fair value accounting for all financial assets and liabilities and non-financial assets and liabilities that are recognized or disclosed at fair value in
the financial statements on a recurring basis. Fair value is estimated by applying the following hierarchy, which prioritizes the inputs used to measure fair
value into three levels and bases the categorization within the hierarchy upon the lowest level of input that is available and significant to the fair value
measurement:
Level 1 – Quoted prices in active markets for identical assets or liabilities.
Level 2 – Observable inputs other than quoted prices in active markets for identical assets and liabilities, quoted prices for identical or similar assets
or liabilities in inactive markets, or other inputs that are observable or can be corroborated by observable market data for substantially the full term
of the assets or liabilities.
Level 3 – Inputs that are generally unobservable and typically reflect management’s estimate of assumptions that market participants would use in
pricing the asset or liability.
The carrying amounts for cash and cash equivalents, investments in certificates of deposit, accounts payable and accrued expenses approximate their fair
values due to the short period of time until maturity.
Mutual funds: Valued at the quoted net asset value (NAV) of shares held.
U.S. agency and treasury securities: Fair value measured at the closing price reported on the active market on which the individual securities are
traded.
The following table shows the adjusted cost, gross unrealized gains, gross unrealized losses, and fair value of our financial assets as of December 31, 2020
and 2019 (in thousands):
Adjusted
Cost
Unrealized
Gains
Unrealized
Losses
Fair
Value
Cash
and Cash
Equivalents
Investments
Available
for Sale
December 31, 2020
Cash
Level 1:
Mutual funds
U.S. agency securities
U.S. treasury securities
Total
$
$
121,785 $
70,996
13,767
14,707
99,470
221,255 $
— $
—
2
—
2
2 $
— $
121,785 $
121,785 $
—
—
—
(1)
(1)
(1) $
70,996
13,769
14,706
99,471
221,256 $
70,996
127
—
71,123
192,908 $
—
13,642
14,706
28,348
28,348
Cash
Level 1:
Mutual funds
U.S. agency securities
Total
$
Adjusted
Cost
Unrealized
Gains
Unrealized
Losses
Fair
Value
Cash
and Cash
Equivalents
Investments
Available
for Sale
December 31, 2019
$
2,076 $
613
2,837
3,450
5,526 $
— $
—
3
3
3 $
— $
2,076 $
2,076 $
—
—
—
—
— $
613
2,840
3,453
5,529 $
613
446
1,059
3,135 $
—
2,394
2,394
2,394
The maturities of our marketable securities generally range from within one to two years. Actual maturities could differ from contractual maturities due to
call or prepayment provisions.
51
Index
Note 12 – Litigation (all dollar amounts in this section are expressed in thousands except for rates per device)
We have several intellectual property infringement lawsuits pending in the United States District Court for the Eastern District of Texas, Tyler Division
(“USDC”), and United States Court of Appeals for the Federal Circuit (“USCAFC”) and the Supreme Court of the United States (“SCOTUS”).
VirnetX Inc. v. Cisco Systems, Inc. et al. (Case 6:10-CV-00417-LED) (“Apple I”)
On August 11, 2010, we filed a complaint against Aastra USA. Inc. (“Aastra”), Apple Inc. (“Apple”), Cisco Systems, Inc. (“Cisco”), and NEC Corporation
(“NEC”) the USDC in which we alleged that these parties infringe on certain of our patents (U.S. Patent Nos. 6,502,135, 7,418,504, 7,921,211 and
7,490,151). We sought damages and injunctive relief. The cases against each defendant were separated by the judge. Aastra and NEC agreed to sign license
agreements with us, and we dropped all accusations of infringement against them. A jury in USDC decided that our patents were not invalid and rendered a
verdict of non-infringement by Cisco on March 4, 2013. Our motion for a new Cisco trial was denied and the case against Cisco was closed.
On November 6, 2012, a jury in the USDC awarded us over $368,000 for Apple’s infringement of four of our patents, plus daily interest up to the final
judgment.
Apple filed an appeal of the judgment to the USCAFC. On September 16, 2014, USCAFC affirmed the USDC jury’s finding that all four of our patents at
issue are valid and confirmed the USDC jury’s finding of infringement of VPN on Demand under many of the asserted claims of our ‘135 and ‘151 patents,
and the USDC’s decision to allow evidence about our license and royalty rates regarding the determination of damages. However, the USCAFC vacated the
USDC jury’s damages award and some of the USDC’s claim construction with respect to parts of our ‘504 and ‘211 patents and remanded the damages
award and determination of infringement with respect to FaceTime back to the USDC for further proceedings.
On September 30, 2016, pursuant to the 2014 remand from the USCAFC, a jury in the USDC awarded us $302,400 for Apple’s infringement of four of our
patents. On September 29, 2017, the USDC entered its final judgment, denied all of Apple’s post-trial motions, granted all our post-trial motions, including
our motion for willful infringement and enhanced the royalty rate during the willfulness period from $1.20 to $1.80 per device, and awarded us costs,
certain attorneys’ fees, and prejudgment interest. The total amount in the final judgment was $439,700, including $302,400 (jury verdict), $41,300
(enhanced damages) and $96,000 (costs, fees and interest).
On October 27, 2017 Apple appealed the final judgment entered on September 29, 2017 to the USCAFC. Oral arguments in this case were held on January
8, 2019. On January 15, 2019, the Court issued a Rule 36 order affirming the district court’s final judgment. Apple filed a petition for panel rehearing and
rehearing en-banc in this matter on February 21, 2019. On October 1, 2019, USCAFC issued an order denying Apple’s petition. Apple filed a petition for a
writ of certiorari with the SCOTUS, which was denied on February 24, 2020. Prior to the SCOTUS decision denying Apple’s petition for a writ of
certiorari, on February 20, 2020, Apple filed a Rule 60(b) motion for relief from judgment with the USDC, seeking relief from the district court’s
September 29, 2017 final judgment. VirnetX filed a responsive brief in opposition on March 5, 2020.
On March 13, 2020, the Company received payment of $454,034 from Apple, representing the previously announced final judgment with interest in this
case. Apple sought payment relief by filing a motion under rule 60(b). On September 1, 2020 USDC issued an order denying Apple’s motion for relief of
judgement. This case is now closed.
VirnetX Inc. v. Apple, Inc. (Case 6:12-CV-00855-LED) (“Apple II”)
This case began on November 6, 2012, when we had filed a complaint against Apple in USDC in which we alleged that Apple infringed on certain of our
patents, (U.S. Patent Nos. 6,502,135, 7,418,504, 7,921,211 and 7,490,151). We sought damages and injunctive relief. The accused products include the
iPhone 5, iPod Touch 5th Generation, iPad 4th Generation, iPad mini, and the latest Macintosh computers; these products were not included in the Apple I
case because they were released after the Apple I case was initiated. Post-trial motions hearing was held on July 18, 2018. On August 31, 2018, the USDC
entered a Final Judgment and issued its Memorandum Opinion and Order regarding post-trial motions, affirming the jury’s verdict of $502,600 and
granting VirnetX motions for supplemental damages, a sunset royalty and the royalty rate of $1.20 per infringing iPhone, iPad and Mac products, pre-
judgment and post-judgment interest and costs. Apple filed a notice of appeal with the USCAFC in the Apple II case.
52
Index
On October 9, 2018, USCAFC docketed the appeal as Case No. 19-1050 - VirnetX Inc. v. Apple Inc . On January 24, 2019 Apple filed its opening brief.
We filed our response brief on March 1, 2019. Apple filed its reply brief on April 5, 2019. The oral arguments were heard on October 4, 2019. On
November 22, 2019, the USCAFC issued an opinion affirming the district court’s findings that Apple is precluded from making certain invalidity
arguments and that Apple infringed the ’135 and ’151 patents; reversing the USDC’s finding that Apple infringed the ’504 and ’211 patents; and remanding
the case for proceedings on damages. Apple sought panel and en banc rehearing, which the USCAFC denied on February 10, 2020.
On February 22, 2020, the USDC issued a scheduling order for the parties to brief the court about the need for a new trial for recalculating the damages.
We filed our motion for entry of judgment on February 28, 2020. The arguments on this matter were heard on April 14, 2020. In its order, unsealed on May
1, 2020, the USDC denied VirnetX’s motion for entry of a new judgment based on the prior jury verdict and ordered a new jury trial on damages. On
August 10, 2020, the USDC granted Apple’s motion for continuance and reset the date to October 26, 2020. On October 30, 2020, a jury returned a
$502,800 verdict in favor of VirnetX based on Apple’s infringement of two network security patents: VirnetX US Patents No. 6,502,135 and No.
7,490,151. The jury verdict called for damages of $0.84 per accused device since the 2013 launch of Apple’s iOS 7 operating system and represents
598,629,580 infringing units from US sales only. On January 15, 2021, the district court denied Apple’s motion for judgment as a matter of law, and on
February 4, 2021, Apple filed a notice of appeal to the USCAFC.
VirnetX Inc. v. Mangrove Partners Master Fund, Ltd., Apple Inc. (USCAFC Case 20-2271) and VirnetX Inc. v. Mangrove Partners Master Fund,
Ltd., Apple Inc., and Black Swamp, LLC (USAFC Case 20-2272)
On September 15, 2020, we filed with the USCAFC an appeal of the invalidity findings by the PTAB in inter-partes review proceedings IPR2015-01046
and IPR2016-00062 involving our U.S. Patent No. 6,502,135, and an appeal of the invalidity findings by the PTAB in inter partes review proceedings
IPR2015-1047, IPR2016- 00063, and IPR2016-00167 involving our U.S. Patent No. 7,490,151. On September 25, 2020, the USCAFC issued an order
consolidating the two appeals. On December 15, 2020, we filed a motion to vacate the PTAB decisions below and to remand these appeals to the PTAB,
which remains pending. In view of our motion to remand, our deadline to file an initial brief is currently stayed.
Iancu v. Luoma (SCOTUS Case 20-74)
On July 23, 2020, the United States and the USPTO (collectively, “the United States”) filed a petition for a writ of certiorari from several decisions by the
USAFC, including decisions in VirnetX Inc. v. Cisco Systems, Inc., Nos. 2019-1671, and VirnetX Inc. v. Iancu, Nos. 2017-2593, -2594. In those cases, the
USAFC granted VirnetX’s motions to vacate the underlying decisions of the PTAB on the basis of Arthrex, Inc. v. Smith & Nephew, Inc., 941 F.3d 1320
(Fed. Cir. 2019), and remanded for further proceedings. The United States requested that the SCOTUS hold its certiorari petition pending the disposition of
the United States’ separate petition in United States v. Arthrex, Inc., No. 19-1434 (filed June 25, 2020). On August 26, 2020, VirnetX filed a response,
agreeing that the United States’ certiorari petition should be held pending the disposition of the petition for a writ of certiorari in No. 19-1434 (and related
petitions filed by private parties in Nos. 19-1452 and 19-1458), and any further SCOTUS proceedings.
On October 13, 2020, SCOTUS granted the United States’ petition for a writ of certiorari in No. 19-1434 as to USAFC Case No. 2018-2140, and the
petitions for writs of certiorari in Nos. 19-1452 and 19-1458, all limited to Questions 1 and 2 as set forth in the July 22, 2020 Memorandum for the United
States filed in No. 19-1434. The consolidated petition is seeking review of decisions by the USCAFC holding that administrative patent judges (“APJ”) of
the Patent Trial and Appeal Board of the U.S. Patent and Trademark Office must be appointed by the President and confirmed by the Senate; and, whether
the remedy imposed by USCAFC that federal laws that place restrictions on when officials can be removed from office cannot apply to APJ, was the
appropriate one. SCOTUS heard oral argument in these consolidated cases on March 1, 2021.
McKool Smith P.C. v. VirnetX, Inc., AAA Case No. 01-20-0003-7975
On March 23, 2020, the law firm of McKool Smith, P.C. (“McKool”) filed a Demand for Arbitration against VirnetX, Inc. with the American Arbitration
Association (“AAA”). In its demand, McKool claims that a retention agreement it entered into in 2010 with VirnetX entitles it to a contingency fee arising
from the recent 2020 payment made by Apple. McKool claims it is owed approximately $36,300 (or 8% of the Apple I payment). We have filed a general
response with the AAA denying McKool’s claim and are contesting the matter vigorously. An evidentiary hearing was held on the matter during the week
of February 22, 2021 and the parties will be submitting additional briefing. A ruling is expected sometime thereafter.
53
Index
Neal Hurwitz v. Kendall Larsen et al. (Case 2020-0425-JRS)
On June 2, 2020, stockholder Neal Hurwitz filed a verified derivative complaint in the Delaware Court of Chancery against Kendall Larsen, Robert D.
Short Ill, Gary Feiner, Michael F. Angelo, and Thomas M. O’Brien and naming the Company as nominal defendant. The lawsuit alleges breaches of
fiduciary duty, corporate waste, and unjust enrichment arising out of a series of previously-disclosed transactions and compensation awards and seeks an
award of monetary damages and equitable relief. On July 1, 2020, the defendants filed a motion to dismiss the complaint based on a failure to plead
demand futility and a failure to state a claim on which relief can be granted and, on August 19, 2020, the defendants filed an opening brief in support of
their motion to dismiss. On October 16, 2020, plaintiff amended his complaint rather than respond to the arguments in the defendants’ opening brief. On
October 23, 2020, the defendants filed a renewed motion to dismiss plaintiff’s amended complaint based on a failure to plead demand futility and a failure
to state a claim on which relief can be granted. On January 12, 2021, Hurwitz voluntarily dismissed his suit without prejudice.
Other Legal Matters
One or more potential intellectual property infringement claims may also be available to us against certain other companies who have the resources to
defend against any such claims. Although we believe these potential claims are likely valid, commencing a lawsuit can be expensive and time-consuming,
and there is no assurance that we could prevail on such potential claims if we made them. In addition, bringing a lawsuit may lead to potential
counterclaims which may distract our management and our other resources, including capital resources, from efforts to successfully commercialize our
products.
Currently, we are not a party to any other pending legal proceedings and are not aware of any proceeding threatened or contemplated against us.
Note 13 – Leases
We lease office space under an operating lease which expires on October 31, 2021. At December 31, 2020, the underlying ROU asset and lease liability
totaled $44. At December 31, 2019, the underlying ROU asset and lease liability totaled $97. Lease expense totaled $56 in both 2020 and 2019.
We also lease a facility for corporate promotional and marketing purposes which was prepaid at inception and originally expired in 2024. In September
2020, the lease was extended for one year to 2025, due to COVID use-restrictions in 2020. No other terms of the original agreement were affected and
there was no impact on cash flow. At December 31, 2020 and 2019, the ROU asset totaled $1,248 and $1,604, respectively; lease expense totaled $356 and
$385, during 2020 and 2019, respectively.
54
Index
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and
Stockholders of VirnetX Holding Corporation
Opinion on Internal Control over Financial Reporting
We have audited VirnetX Holding Corporation’s (the Company’s) internal control over financial reporting as of December 31, 2020, based on criteria
established in Internal Control—Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission
(COSO). In our opinion, the Company maintained, in all material respects, effective internal control over financial reporting as of December 31, 2020,
based on criteria established in Internal Control—Integrated Framework (2013) issued by COSO.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the consolidated
balance sheets and the related consolidated statements of operations, comprehensive income (loss), stockholders’ equity, and cash flows of the Company,
and our report dated March 16, 2021, expressed an unqualified opinion.
Basis for Opinion
The Company’s management is responsible for maintaining effective internal control over financial reporting, and for its assessment of the effectiveness of
internal control over financial reporting, included in the accompanying Management’s Report on Internal Control Over Financial Reporting. Our
responsibility is to express an opinion on the Company’s internal control over financial reporting based on our audit. We are a public accounting firm
registered with the PCAOB and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the
applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audit in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable
assurance about whether effective internal control over financial reporting was maintained in all material respects. Our audit of internal control over
financial reporting included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, and
testing and evaluating the design and operating effectiveness of internal control based on the assessed risk. Our audit also included performing such other
procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.
Definition and Limitations of Internal Control over Financial Reporting
A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting
and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control
over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly
reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit
preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are
being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding
prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial
statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of
effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of
compliance with the policies or procedures may deteriorate.
/s/ Farber Hass Hurley LLP
Chatsworth, California
March 16, 2021
55
Index
Item 9.
None.
Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
Item 9A.
Controls and Procedures
Evaluation of Disclosure Controls and Procedures
Under the supervision and with the participation of our management, including our Chief Executive Officer and Chief Financial Officer, we conducted an
evaluation of the effectiveness of the design and operation of our disclosure controls and procedures, as defined in Rules 13a-15(e) and 15d-15(e) under the
Securities Exchange Act of 1934, as amended, December 31, 2020.
The purpose of this evaluation was to determine whether as of December 31, 2020 our disclosure controls and procedures were effective to provide
reasonable assurance that the information we are required to disclose in our filings with the SEC, (i) is recorded, processed, summarized and reported
within the time periods specified in the SEC’s rules and forms and (ii) accumulated and communicated to our management, including our Chief Executive
Officer and Chief Financial Officer, as appropriate to allow timely decisions regarding required disclosure.
Based on their evaluation, our Chief Executive Officer and Chief Financial Officer have concluded that as of December 31, 2020, our disclosure controls
and procedures were effective.
Changes in Internal Control Over Financial Reporting
There were no changes in our internal controls over financial reporting (as such term is defined in rules 13a-15(f) under the Securities Exchange Act of
1934, as amended) during the fiscal year ended December 31, 2020 that have materially affected, or are reasonably likely to materially affect, our internal
controls over financial reporting.
Management’s Report on Internal Control Over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over financial reporting for the Company. Internal control over
financial reporting is a process to provide reasonable assurance regarding the reliability of our financial reporting for external purposes in accordance with
accounting principles generally accepted in the United States of America. Internal control over financial reporting includes maintaining records that in
reasonable detail accurately and fairly reflect our transactions; providing reasonable assurance that transactions are recorded as necessary for preparation of
our financial statements; providing reasonable assurance that receipts and expenditures of Company assets are made in accordance with management
authorization; and providing reasonable assurance that unauthorized acquisition, use or disposition of Company assets that could have a material effect on
our financial statements would be prevented or detected on a timely basis. Because of its inherent limitations, internal control over financial reporting is not
intended to provide absolute assurance that a misstatement of our financial statements would be prevented or detected.
Management conducted an evaluation of the effectiveness of our internal control over financial reporting based on the framework in Internal Control –
Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission. Based on this evaluation, management
concluded that the Company’s internal control over financial reporting was effective as of December 31, 2020. There were no changes in our internal
control over financial reporting during the period ended December 31, 2020 that have materially affected, or are reasonably likely to materially affect, our
internal control over financial reporting. Farber Hass Hurley LLP has audited our internal control over financial reporting as of December 31, 2020; their
report is included elsewhere herein.
Item 9B.
Other Information
None.
56
Index
Item 10.
Directors, Executive Officers and Corporate Governance
PART III
The information required by this item will be contained in our definitive proxy statement to be filed with the SEC in connection with our 2020 Annual
Meeting of Stockholders (the “Proxy Statement”), which is expected to be filed not later than 120 days after the end of our fiscal year ended December 31,
2020 and is incorporated in this report by reference.
Item 11.
Executive Compensation
The information required by this item will be set forth in the Proxy Statement and is incorporated herein by reference.
Item 12.
Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
The information required by this item will be set forth in the Proxy Statement and is incorporated herein by reference.
Securities Authorized for Issuance Under the Equity Compensation Plans
We have a stock incentive plan for employees and others called the “VirnetX Holding Corporation 2013 Stock Plan”, or the Plan, which has been approved
by our stockholders. The Plan provides for the granting of up to 16,624,469 shares of our common stock, including stock options and restricted stock units,
and will expire in 2023. As of December 31, 2020, there were 545,210 shares available to be granted under the Plan. We had 5,812,521 and 5,630,021
options outstanding at December 31, 2020 and December 31, 2019, respectively, with an average exercise price of $8.55 and $8.49, respectively. We had
504,323 and 498,489 restricted stock units outstanding at December 31, 2020 and December 31, 2019, respectively, with a weighted average grant price of
$5.69 and $4.71, respectively.
Plan Category
Equity compensation plans approved by security holders
Equity compensation plans not approved by security holders
Total
Weighted-
Average
Exercise Price
of
Outstanding
Options and
RSUs
Number of
Securities to
be
Issued Upon
Exercise of
Outstanding
Options and
RSUs
6,316,844 $
—
6,316,844 $
Number of
Securities
Remaining
Available for
Future
Issuance
Under Equity
Compensation
Plans
8.32
—
8.32
545,210
545,210
On March 19, 2020, the Compensation Committee granted 240,000 options to the employees of VirnetX, Inc. On April 2, 2020, the Compensation
Committee granted 50,000 options to an employee of VirnetX Inc. On May 29, 2020, the Compensation Committee granted 37,500 options and 24,999
RSUs to members of the Board of Directors of VirnetX, Inc. On June 3, 2020, the Compensation Committee granted 290,000 options and 193,330 RSUs to
the employees of VirnetX, Inc On December 18, 2020, the Compensation Committee granted 120,000 options to an employee of VirnetX Inc. and 10,000
options to a consultant.
Item 13.
Certain Relationships and Related Transactions, and Director Independence
The information required by this item will be set forth in the Proxy Statement and is incorporated herein by reference.
Item 14.
Principal Accountant Fees and Services
The information required by this item will be set forth in the Proxy Statement and is incorporated herein by reference.
57
Index
PART IV
Item 15.
Exhibits and Financial Statement Schedules
(a) The following documents are filed as part of this Annual Report on Form 10-K
(1) Financial Statements: See the Index to Consolidated Financial Statements under Item 8 of this Annual Report on Form 10-K.
(2) Financial Statement Schedule: Financial statement schedules are omitted because they are not applicable, or the required information is
shown in the financial statements or notes thereto. All other schedules are omitted because of the absence of conditions under which they are
required or because the required information is given in the financial statements or the notes thereto.
(3) Exhibits: The documents listed in the Exhibit Index of this Annual Report on Form 10-K are incorporated by reference or are filed with this
Annual Report on Form 10-K, in each case as indicated therein (numbered in accordance with Item 601 of Regulation S-K).
EXHIBIT INDEX
Exhibit
Number
3.1
3.2
4.1
4.2
4.3
4.4
4.5
4.6
10.1
10.2*
10.3*
10.4*
10.5*
10.6*
10.7*
10.8
10.9
Description
Certificate of Incorporation of the Company.
By Laws of the Company.
Form of Warrant Agency Agreement by and between the
Company and Corporate Stock Transfer, Inc. as Warrant Agent.
Form of Series I Warrant.
Specimen Common Stock Certificate.
Form of Senior Indenture
Form of Subordinated Indenture
Description of Capital Stock
Form of Indemnification Agreement by and between the Company
and each of Kendall Larsen, Robert D. Short III, Gary Feiner,
Michael F. Angelo, Thomas M. O’Brien and Richard Nance.
2007 Stock Plan, as amended on April 13, 2012.
Amended Form of Stock Option Agreement – 2007 Stock Plan.
Form of Restricted Stock Unit Award Agreement – 2007 Stock
Plan.
2013 Equity Incentive Plan.
Form of Stock Option Agreement – 2013 Equity Incentive Plan.
Form of Restricted Stock Unit Agreement – 2013 Equity Incentive
Plan.
Voting Agreement among the Company and certain of its
stockholders, dated as of December 12, 2007.
Securities Purchase Agreement, dated as of September 2, 2009, by
and between the Company and the Purchasers (as defined therein).
58
Incorporated by reference herein
Exhibit No.
3.1
3.2
4.1
11/01/2007
11/01/2007
01/16/2009
Filing Date
Form
8-K
8-K
S-1/A
8-K
S-3
S-3
S-3
10-K
10-Q
10-Q
10-Q
4.1
4.1
4.2
4.4
10.1
10.2
4.5
10.3
DEF 14A
10-K
10-K
10-K
8-K
Appendix A
10.6
10.7
10.11
10.1
File No.
000-26895
000-26895
333-153645
001-33852
333-226413
333-226413
333-226413
09/03/2009
07/30/2018
07/30/2018
07/30/2018
03/18/2019
001-33852
05/10/2012
05/10/2011
05/10/2012
04/12/2013
03/02/2015
03/02/2015
001-33852
001-33852
001-33852
001-33852
001-33852
001-33852
03/31/2008
001-33852
09/03/2009
001-33852
Index
Exhibit
Number
10.10
10.11
10.16
10.15
10.12
10.14
10.13
Description
Form of Registration Rights Agreement by and between the
Company and the Purchasers (as defined therein).
Form of Underwriting Agreement between VirnetX Holding
Corporation and Gilford Securities Incorporated.
Patent License and Assignment Agreement by and between the
Company and Leidos, Inc. (formerly Science Applications
International Corporation) dated as of August 12, 2005.
Amendment No. 1 to Patent License and Assignment
Agreement by and between the Company and Leidos, Inc.
dated as of November 2, 2006.
Amendment No. 2 to Patent License and Assignment
Agreement by and between VirnetX, Inc. and Leidos, Inc.
dated as of March 12, 2008.
Security Agreement by and between the Company and Leidos,
Inc. dated as of August 12, 2005.
Assignment Agreement between the Company and Leidos, Inc.
dated as of December 21, 2006.
Professional Services Agreement by and between the
Company and Leidos, Inc. dated as of August 12, 2005.
Engagement Letter dated June 8, 2009, by and between
McKool Smith, a professional corporation, and VirnetX, Inc.
Engagement Letter dated April 15, 2010, by and between
McKool Smith, a professional corporation, and VirnetX, Inc.
Settlement and License Agreement, by and between Microsoft
Corporation and VirnetX, Inc., dated May 14, 2010.
10.21*** Amended Settlement and License Agreement, by and between
Microsoft Corporation and VirnetX, Inc., dated December 17,
2014.
Employment Offer Letter from VirnetX, Inc. to Richard H.
Nance.
Amended and Restated Revenue Sharing Agreement by and
between VirnetX Holding Corporation and Public Intelligence
Technology Associates, dated October 18, 2017.
10.23**
10.18**
10.19**
10.20**
10.22*
10.17
59
Form
8-K
S-1/A
8-K
8-K
8-K
8-K
8-K
8-K
10-Q
10-Q
10-Q/A
Incorporated by reference herein
Exhibit No.
10.2
Filing Date
09/03/2009
File No.
001-33852
1.1
10.4
10.6
10.1
10.5
10.7
10.8
10.1
10.1
10.1
01/16/2009
07/12/2007
333-
153645
000-26895
07/12/2007
000-26895
03/18/2008
001-33852
07/12/2007
000-26895
07/12/2007
000-26895
07/12/2007
000-26895
08/10/2009
001-33852
05/07/2010
001-33852
01/31/2011
001-33852
10-K
10.23
03/02/2015
001-33852
10-Q
10-Q
10.4
10.1
05/10/2012
001-33852
11/09/2017
001-33852
Form
10-Q
Incorporated by reference herein
Exhibit No.
10.2
Filing Date
11/09/2017
File No.
001-33852
8-K
10.1
08/31/2018
001-33852
Index
Exhibit
Number
10.24**
10.25
21.1
23.1
24.1
31.1
31.2
32.1†
32.2†
Description
Amended and Restated Gabriel License Agreement by and
between VirnetX Holding Corporation and Public Intelligence
Technology Associates, dated October 18, 2017.
Sales Agreement, dated August 31, 2018, by and between
VirnetX Holding Corporation and Cowen and Company, LLC.
Subsidiaries of VirnetX Holding Corporation.
Consent of Farber Hass Hurley LLP, Independent Registered
Public Accounting Firm.
Power of Attorney (contained on signature page hereto)
Chief Executive Officer Certification pursuant to Rule 13a-
14(a) of the Securities Exchange Act.
Chief Financial Officer Certification pursuant to Rule 13a-
14(a) of the Securities Exchange Act.
Chief Executive Officer Certification pursuant to 18 U.S.C.
Section 1350 as adopted pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002
Chief Financial Officer Certification pursuant to 18 U.S.C.
Section 1350 as adopted pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002.
XBRL Instance Document
101.INS
101.SCH XBRL Taxonomy Extension Schema Document
101.CAL XBRL Taxonomy Extension Calculation Linkbase Document
101.DEF XBRL Taxonomy Extension Definition Linkbase Document
101.LAB XBRL Taxonomy Extension Label Linkbase Document
101.PRE XBRL Taxonomy Extension Presentation Linkbase Document
*
Indicates management contract or compensatory plan.
** Confidential treatment has been granted by the Securities and Exchange Commission as to certain portions of this Exhibit.
***
†
Portions of this Exhibit have been omitted pending a determination by the Securities and Exchange Commission as to whether these portions
should be granted confidential treatment.
The certifications attached as Exhibit 32.1 and 32.2 that accompany this Annual Report on Form 10-K are not deemed filed with the Securities and
Exchange Commission and are not to be incorporated by reference into any filing of VirnetX Holding Corporation under the Securities Act of 1933, as
amended, or the Securities Exchange Act of 1934, as amended, whether before or after the date of this Annual Report on Form 10-K, irrespective of
any general incorporation language contained in such filing.
60
Index
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this Annual Report on Form 10-
K to be signed on its behalf by the undersigned, thereunto duly authorized.
Dated: March 16, 2021
VirnetX Holding Corporation
By:
/s/ Kendall Larsen
Name: Kendall Larsen
Title: Chief Executive Officer and President
Index
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Kendall Larsen his or her
attorney-in-fact, with full power of substitution, for him or her in any and all capacities, to sign any amendments to this Report on Form 10-K, and to file
the same, with exhibits thereto and other documents in connection therewith with the Securities and Exchange Commission, hereby ratifying and
confirming all that said attorney-in-fact, or his or her substitute or substitutes may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Exchange Act of 1934, this Annual Report on Form 10-K has been signed below by the following persons on
behalf of the registrant and in the capacities indicated.
Name
/s/ Kendall Larsen
Kendall Larsen
/s/ Richard H. Nance
Richard H. Nance
/s/ Robert D. Short III
Robert D. Short III
/s/ Gary Feiner
Gary Feiner
/s/ Michael F. Angelo
Michael F. Angelo
/s/ Thomas M. O’Brien
Thomas M. O’Brien
Capacity
Date
Director, Chief Executive Officer and President
March 16, 2021
(Principal Executive Officer)
Chief Financial Officer
(Principal Financial Officer and
Principal Accounting Officer)
Director
Director
Director
Director
March 16, 2021
March 16, 2021
March 16, 2021
March 16, 2021
March 16, 2021
DESCRIPTION OF CAPITAL STOCK
Exhibit 4.6
The following description of the capital stock of VirnetX Holding Corporation (“us”, “our,” “we”, or the “Company”) is a
summary. We have adopted an amended and restated certificate of incorporation and amended and restated bylaws, and this
description summarizes the provisions that are included in such documents. Because it is only a summary, it does not contain all
the information that may be important to you. For a complete description of the matters set forth in this Exhibit, you should refer
to our amended and restated certificate of incorporation and amended and restated bylaws, each previously filed with the
Securities and Exchange Commission and incorporated by reference as exhibits to the Annual Report on Form 10-K of which this
Exhibit is a part, and to the applicable provisions of Delaware law.
General
Our authorized capital stock consists of 100,000,000 shares of common stock with a $0.0001 par value per share, and
10,000,000 shares of preferred stock with a $0.0001 par value per share, all of which shares of preferred stock are undesignated.
Our board of directors may establish the rights and preferences of the preferred stock from time to time. All outstanding shares
of our common stock are fully paid and non-assessable. The rights, preferences, and privileges of the holders of our common
stock are subject to, and may be adversely affected by, the rights of the holders of shares of any series of preferred stock that we
may designate and issue in the future.
Common Stock
We have one class of common stock.
Dividend Rights
Subject to any preferential rights of any outstanding preferred stock, holders of our common stock are entitled to receive
ratably the dividends, if any, as may be declared from time to time by the board of directors out of funds legally available
therefor.
Voting Rights
Each holder of our common stock is entitled to one vote for each share on all matters to be voted upon by the stockholders
and there are no cumulative rights.
Right to Receive Liquidation Distributions
If there is a liquidation, dissolution or winding up of our company, holders of our common stock would be entitled to
share in our assets remaining after the payment of liabilities and any preferential rights of any outstanding preferred stock.
No Preemptive or Similar Rights
Holders of our common stock have no preemptive or conversion rights or other subscription rights, and there are no
redemption or sinking fund provisions applicable to the common stock.
Preferred stock
Our board of directors is authorized to issue shares of preferred stock in one or more series without stockholder approval.
Our board of directors has the discretion to determine the rights, preferences, privileges, and restrictions, including voting rights,
dividend rights, conversion rights, redemption privileges and liquidation preferences, of each series of preferred stock. There are
no restrictions presently on the repurchase or redemption of any shares of our preferred stock. We have no present plans to issue
any shares of preferred stock nor are any shares of our preferred stock presently outstanding.
Anti-Takeover Effects
Provisions of Delaware law and our amended and restated certificate of incorporation and Bylaws could make the
acquisition of our company through tender offer, a proxy context, or other means more difficult and could make the removal of
incumbent officers and directors more difficult. We expect these provisions to discourage coercive takeover practices and
inadequate takeover bids and to encourage persons seeking to acquire control of our company to first negotiate with our board of
directors. We believe that the benefits provided by our ability to negotiate with the proponent of an unfriendly or unsolicited
proposal outweigh the disadvantages of discouraging these proposals. We believe the negotiation of an unfriendly or unsolicited
proposal could result in an improvement of its terms.
Amended and Restated Certificate of Incorporation and Bylaws
Our amended and restated certificate of incorporation and bylaws provide for the following:
•
•
•
•
•
•
Undesignated Preferred Stock. The ability to authorize undesignated preferred stock makes it possible for our board of directors to issue
one or more series of preferred stock with voting or other rights or preferences that could impede the success of any attempt to change
control of our company. These and other provisions may have the effect of deferring hostile takeovers or delaying changes in control or
management of our company.
Stockholder Meetings. Our charter documents provide that a special meeting of stockholders may be called only by resolution adopted
by the board of directors.
Requirements for Advance Notification of Stockholder Nominations and Proposals. Our bylaws establish advance notice procedures with
respect to stockholder proposals and the nomination of candidates for election as directors, other than nominations made by or at the
direction of the board of directors or a committee of the board of directors.
Board Classification. Our board of directors is divided into three classes. The directors in each class will serve for a three-year term, one
class being elected each year by our stockholders. This system of electing and removing directors may tend to discourage a third party
from making a tender offer or otherwise attempting to obtain control of us, because it generally makes it more difficult for stockholders to
replace a majority of the directors.
Stockholder Meetings; Limits on Ability of Stockholders to Act by Written Consent. We have provided in our certificate of incorporation
that our stockholders may not act by written consent. This limit on the ability of our stockholders to act by written consent may lengthen
the amount of time required to take stockholder actions. As a result, a holder controlling a majority of our capital stock would not be able
to amend our bylaws or remove directors without holding a meeting of our stockholders called in accordance with our bylaws.
Amendment of Bylaws. Any amendment of our bylaws requires approval by holders of at least two-thirds of our outstanding capital stock
entitled to vote generally in the election of directors.
Delaware Anti-Takeover Statute
We are subject to Section 203 of the Delaware General Corporation Law, an anti-takeover law. In general, Section 203
prohibits a publicly held Delaware corporation from engaging in a “business combination” with an “interested stockholder” for a
period of three years following the date the person became an interested stockholder, unless:
•
•
prior to the date of the transaction, the board of directors of the corporation approved either the business combination or the transaction
which resulted in the stockholder becoming an interested stockholder.
the stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding
for purposes of determining the number of shares outstanding (a) shares owned by persons who are directors and also officers, and (b)
shares owned by employee stock plans in which employee participants do not have the right to determine confidentially whether shares
held subject to the plan will be tendered in a tender or exchange offer; or
•
on or subsequent to the date of the transaction, the business combination is approved by the board and authorized at an annual or special
meeting of stockholders, and not by written consent, by the affirmative vote of at least two-thirds of the outstanding voting stock that is
not owned by the interested stockholder.
Generally, a “business combination” includes a merger, asset or stock sale, or other transaction resulting in a financial
benefit to the interested stockholder. An “interested stockholder” is a person who, together with affiliates and associates, owns
or, within three years prior to the determination of interested stockholder status, did own 15% or more of a corporation’s
outstanding voting securities. We expect the existence of this provision to have an anti-takeover effect with respect to
transactions our board of directors does not approve in advance. We also anticipate that Section 203 may also discourage
attempts that might result in a premium over the market price for the shares of common stock held by stockholders.
Transfer Agent and Registrar
The transfer agent and registrar for the common stock is Equiniti Trust Company.
Listing
Our common stock is listed on the NYSE under the symbol “VHC.”
Subsidiaries of Registrant
Name of Entity
VirnetX Japan Corporation
VirnetX Inc.
EXHIBIT 21.1
Jurisdiction of
Incorporation or
Organization
Japan
Delaware
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in the Registration Statements on Form S-3 (No. 333-226413) and Form S-8
(Nos. 333-149883, 333-196064, and 333-218467) of our reports dated March 16, 2021, relating to the consolidated financial
statements of VirnetX Holding Corporation (the “Company”), and the effectiveness of the Company's internal control over
financial reporting, appearing in this Annual Report on Form 10-K of the Company for the year ended December 31, 2020.
EXHIBIT 23.1
/s/ Farber Hass Hurley LLP
Chatsworth, California
March 16, 2021
EXHIBIT 31.1
I, Kendall Larsen, certify that:
CERTIFICATIONS
1.
I have reviewed this Annual Report on Form 10-K of VirnetX Holding Corporation for the fiscal year ended December 31, 2020;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this
report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the
financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in
Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f))
for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to
ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our
supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent
fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the
registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably
likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control
over financial reporting.
Date: March 16, 2021
/s/ Kendall Larsen
Kendall Larsen
President and Chief Executive Officer
(Principal Executive Officer)
EXHIBIT 31.2
I, Richard H. Nance, certify that:
CERTIFICATIONS
1.
I have reviewed this Annual Report on Form 10-K of VirnetX Holding Corporation for the fiscal year ended December 31, 2020;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this
report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the
financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in
Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f))
for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to
ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our
supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent
fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the
registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably
likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control
over financial reporting.
Date: March 16, 2021
/s/ Richard H. Nance
Richard H. Nance
Chief Financial Officer
(Principal Accounting and Financial Officer)
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
EXHIBIT 32.1
In connection with the Annual Report of VirnetX Holding Corporation (the “Company”) on Form 10-K for the fiscal year ended
December 31, 2020 as filed with the Securities and Exchange Commission on March 16, 2020 (the “Report”), I, Kendall Larsen,
President and Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002, that, to my knowledge:
(1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) The information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of the Company.
Date: March 16, 2021
/s/ Kendall Larsen
Kendall Larsen
President and Chief Executive Officer
(Principal Executive Officer)
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
EXHIBIT 32.2
In connection with the Annual Report of VirnetX Holding Corporation (the “Company”) on Form 10-K for the fiscal year ended
December 31, 2020 as filed with the Securities and Exchange Commission on March 16, 2021 (the “Report”), I, Richard Nance,
Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002, that, to my knowledge:
(1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) The information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of the Company.
Date: March 16, 2021
/s/ Richard H. Nance
Richard H. Nance
Chief Financial Officer
(Principal Accounting and Financial Officer)