ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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(State or other jurisdiction of incorporation or organization)
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(I.R.S. Employer Identification No.)
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(Address of principal executive offices)
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(Zip Code)
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Title of each class
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Trading Symbol(s)
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Name of each exchange on which registered
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Large accelerated filer ☐
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Accelerated filer ☐
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Emerging growth company
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Smaller reporting company
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Page
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PART I
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Item 1.
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4 | |
Item 1A.
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9 | |
Item 1B.
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24 | |
Item 2.
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24 | |
Item 3.
|
24 | |
Item 4.
|
24 | |
PART II
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Item 5.
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24 | |
Item 6.
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25 | |
Item 7.
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25 | |
Item 7A.
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30 | |
Item 8.
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31 | |
Item 9.
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52 | |
Item 9A.
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52 | |
Item 9B.
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53 | |
Item 9C.
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53 | |
PART III
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Item 10.
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53 | |
Item 11.
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53 | |
Item 12.
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53 | |
Item 13.
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54 | |
Item 14.
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54 | |
PART IV
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Item 15.
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54 |
• |
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 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, Apple has appealed to the Federal Circuit with regards to the judgement from the district court. Oral arguments for this appeal were heard on September 8, 2022. On
March 31, 2023, the Federal Circuit issued its decision vacating the district court’s judgement in this matter and remanding it back to the district court with instructions to dismiss the case as moot. We are evaluating all of our
available options in this matter, including potentially seeking rehearing or certiorari review. 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.
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• |
We have undertaken activities to commercialize our products and patent portfolio in and outside the United States including VirnetX One™, War Room™, VirnetX Matrix™, GABRIEL Connection Technology™ and our Secured Domain Names. These
statements may imply that the worldwide market for our commercialized products is large and will result in significant future licensing or software revenue for us. However, commercialization of products such as ours is 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 entering any agreement with
us, and that or other factors may prevent significant future revenues for us.
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Item 1. |
Business
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• |
Actively recruit partners in various vertical markets, including healthcare, finance, legal, government to help us expand our enterprise customer base.
|
• |
Promote our next-generation VirnetX One™ platform as a solution for delivering ZTNA, and securing enterprise applications, services, and infrastructure.
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• |
Continue to grow our technology licensing program to commercialize our intellectual property, including our GABRIEL Connection Technology™.
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• |
Grow registration of VirnetX Secure Domain Names 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.
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• |
Promote War RoomTM video conferencing product in the general market for sale to end-user enterprises, directly and with
partners, with targeted promotions and other marketing programs to assist remote workers and offer an industry leading secure meeting solution.
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• |
Promote VirnetX Matrix™ enterprise applications, services, and infrastructure.
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• |
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 205 total patents and pending applications, including 72 U.S. patents/patent applications and 133
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.
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• |
Scalable licensing business model. We are actively engaged in pursuing additional licensing agreements with industry participants OEMs, service providers and system integrators within the
IP-telephony, mobility, mobile-to-mobile communications, fixed-mobile convergence, and unified communications end-markets.
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• |
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 core technology that is the foundation of our current 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.
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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 in the assignment document recorded with the U.S. Patent Office, including, without limitation, the right to sue for past infringement.
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• |
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.
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• |
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.
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Item 1A. |
Risk Factors
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•
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Our business has been, and may continue to be, negatively affected by shareholders intent upon alternate business strategies.
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• |
We may not generate significant sales revenues from our new software products and services.
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• |
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.
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• |
We may not be able to capitalize on market opportunities related to our product strategy, our licensing strategy or our patent portfolio.
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• |
If we are not able to adequately protect our patent rights and trade secrets, our business would be negatively impacted.
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• |
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.
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• |
Our exposure to outside influences beyond our control, including new legislation, court rulings or actions by the USPTO could adversely affect our licensing and enforcement activities and results of operations.
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• |
New legislation, regulations or court rulings related to enforcing patents could harm our business and operating results.
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• |
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.
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• |
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.
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• |
We have limited technical resources and are at an early stage in commercialization of our software products.
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• |
Our international expansion will subject us to additional costs and risks, and our plans may not be successful.
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• |
We have had to restate our previously issued financial statements and in connection with such process identified a material weakness in our internal control over financial reporting.
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• |
We may face litigation over the restatement of our previously issued financial statements.
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• |
Third parties may challenge the validity of our patents;
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• |
The pendency of our various litigations may cause potential licensees not to do business with us;
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• |
Our patents may expire before we can make our business strategy successful;
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• |
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.
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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;
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• |
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
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• |
As patent enforcement becomes more prevalent, it may become more difficult for us to voluntarily license our patents.
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• |
The need to educate potential customers about our patent rights and our product and service capabilities;
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• |
Our customers’ willingness to invest potentially substantial resources and modify their network infrastructures to take advantage of our products;
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• |
Our customers’ budgetary constraints;
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• |
The timing of our customers’ budget cycles;
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• |
Delays caused by customers’ internal review processes; and
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• |
Long sales cycles that may increase the risk that our financial resources are exhausted before we are able to generate significant revenue.
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• |
Generate revenues or profit from product sales;
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• |
Drive adoption of our products;
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• |
Attract and retain customers for our products;
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• |
Provide appropriate levels of customer training and support for our products;
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• |
Implement an effective marketing strategy to promote awareness of our products;
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• |
Focus our research and development efforts in areas that generate returns on our efforts;
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• |
Anticipate and adapt to changes in our market; or
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• |
Protect our products from any system failures or other breaches.
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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.
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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.
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• |
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.
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• |
Advance notice requirements for director nominations and for business to be brought before 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 permitting us to disregard a stockholder proposal to the extent such proposal is not submitted in accordance with the bylaws.
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• |
No stockholder actions by written consent: No stockholder or group of stockholders may take action by written consent. 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.
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• |
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.
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• |
No ability of stockholders to call a special meeting of the stockholders: A special meeting of the stockholders, other than as required by statute, may be called at any time by the Board of Directors, or by the chairman of the board,
or by the president, but a special meeting may not be called by any other person or persons and any power of stockholders to call a special meeting of stockholders is specifically denied. 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.
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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.
|
• |
Price and volume fluctuations in the overall stock market from time to time, including fluctuations due to general economic uncertainty or negative market sentiment;
|
• |
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;
|
• |
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 court rulings, 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;
|
• |
Other events or factors, including those resulting from war, incidents of terrorism, pandemics, including the COVID-19 pandemic, or responses to these events; and
|
•
|
General economic conditions such as rising inflation or interest rates in the United States and slow or negative growth of our markets.
|
• |
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.
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Item 1B. |
Unresolved Staff Comments.
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Item 2. |
Properties
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Item 3. |
Legal Proceedings
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Item 4. |
Mine Safety Disclosure
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Item 5. |
Market for the Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities
|
12/17
|
12/18
|
12/19
|
12/20
|
12/21
|
12/22
|
|
VirnetX Holding Corp
|
100.00
|
64.86
|
102.70
|
186.05
|
95.98
|
47.99
|
S&P 500
|
100.00
|
95.62
|
125.72
|
148.85
|
191.58
|
156.89
|
RDG Technology Composite
|
100.00
|
93.54
|
133.70
|
208.19
|
249.39
|
169.48
|
Item 6. |
[Reserved]
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Item 7. |
Management’s Discussion and Analysis of Financial Condition and Results of Operations
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2022
|
2021
|
2020
|
||||||||||
Revenue
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$
|
48
|
$
|
35
|
$
|
302,636
|
2022
|
2021
|
2020
|
||||||||||
Licensing costs
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$
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(4
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)
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$
|
(9,083
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)
|
$
|
90,101
|
2022
|
2021
|
2020
|
||||||||||
Research and Development
|
$
|
6,406
|
$
|
5,577
|
$
|
8.830
|
2022
|
2021
|
2020
|
||||||||||
Selling, General and Administrative
|
$
|
15,722
|
$
|
52,715
|
$
|
45,812
|
2022
|
2021
|
2020
|
||||||||||
Interest and Other Income
|
$
|
1,848
|
$
|
48
|
$
|
108,288
|
Year Ended
December 31,
2022
|
Year Ended
December 31,
2021
|
Year Ended
December 31,
2020
|
||||||||||
United States federal statutory rate
|
21.00
|
%
|
21.00
|
%
|
21.00
|
%
|
||||||
State taxes, net of federal benefit
|
(0.55
|
)%
|
(0.31
|
)%
|
0.17
|
%
|
||||||
Valuation allowance
|
(91.21
|
)%
|
—
|
%
|
(12.22
|
)%
|
||||||
Stock based compensation
|
(9.44
|
%)
|
(6.68
|
)%
|
(0.01
|
)%
|
||||||
R&D Credit
|
1.22
|
%
|
0.19
|
%
|
(0.21
|
)%
|
||||||
Other
|
(0.29
|
)%
|
(1.57
|
)%
|
0.06
|
%
|
||||||
Effective income tax rate
|
(79.27
|
)%
|
12.63
|
%
|
8.79
|
%
|
Item 7A. |
Quantitative and Qualitative Disclosures about Market Risk
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Deferred Taxes
|
|
Description of the Matter
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As discussed in Notes 2 and 10 to the financial statements, the Company recorded a full valuation allowance against the deferred tax assets as of December 31,
2022. Valuation allowances are established when necessary to reduce deferred tax assets to the amounts expected to be realized in the future. 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 available evidence, both positive and negative.
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.
|
|
|
Audit Procedures
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Our principal audit procedures related to the Company’s deferred taxes included the following:
- 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.
- We evaluated management’s assessment of all relevant data that would affect management’s estimate of future taxable income to determine whether a deferred tax asset would be realized
in the future.
|
As of
December 31, 2022
|
As of
December 31, 2021
|
|||||||
ASSETS
|
||||||||
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
|
|
|
||||||
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:
|
||||||||
Preferred stock, par value $
|
|
|
||||||
Common stock, par value $
|
||||||||
Authorized:
|
|
|
||||||
Additional paid-in capital
|
|
|
||||||
Accumulated deficit
|
(
|
)
|
(
|
)
|
||||
Accumulated other comprehensive loss
|
(
|
)
|
(
|
)
|
||||
Total stockholders’ equity
|
|
|
||||||
Total liabilities and stockholders’ equity
|
$
|
|
$
|
|
|
Year Ended
December 31, 2022
|
Year Ended
December 31, 2021
|
Year Ended
December 31, 2020
|
|||||||||
Revenue
|
$
|
|
$
|
|
$
|
|
||||||
Operating expense:
|
||||||||||||
Licensing costs
|
(
|
)
|
(
|
)
|
|
|||||||
Research and development
|
|
|
|
|||||||||
Selling, general and administrative expenses
|
|
|
|
|||||||||
Total operating expense
|
|
|
|
|||||||||
(Loss) income from operations
|
(
|
)
|
(
|
)
|
|
|||||||
Gain on settlement
|
|
|
|
|||||||||
Interest and other income, net
|
|
|
|
|||||||||
(Loss) income before taxes
|
(
|
)
|
(
|
)
|
|
|||||||
Income tax (provision) benefit
|
(
|
)
|
|
(
|
)
|
|||||||
Net (loss) income
|
$
|
(
|
)
|
$
|
(
|
)
|
$
|
|
||||
Basic (loss) earnings per share
|
$
|
(
|
)
|
$
|
(
|
)
|
$
|
|
||||
Diluted (loss) earnings per share
|
$
|
(
|
)
|
$
|
(
|
)
|
$
|
|
||||
Weighted average shares outstanding basic
|
|
|
|
|||||||||
Weighted average shares outstanding diluted
|
|
|
|
|
Year Ended
December 31, 2022
|
Year Ended
December 31, 2021
|
Year Ended
December 31, 2020
|
|||||||||
Net (loss) income
|
$
|
(
|
)
|
$
|
(
|
)
|
$
|
|
||||
Other comprehensive (loss) income, net of tax:
|
||||||||||||
Change in unrealized (loss) gain on investments, net
|
(
|
)
|
(
|
)
|
|
|||||||
Change in foreign currency translation, net
|
|
(
|
)
|
|
||||||||
Total other comprehensive (loss) gain, net of tax
|
(
|
)
|
(
|
)
|
|
|||||||
Comprehensive (loss) income
|
$
|
(
|
)
|
$
|
(
|
)
|
$
|
|
Year Ended |
||||||||||||
December 31, |
||||||||||||
2022
|
2021
|
2020
|
||||||||||
Total shareholders’ equity, beginning balances
|
$
|
|
$
|
|
$
|
|
||||||
Common stock and additional paid-in capital:
|
||||||||||||
Beginning balances
|
|
|
|
|||||||||
Common stock issued for cash, net
|
|
|
|
|||||||||
Common stock issued for options/RSUs, net
|
(
|
)
|
(
|
)
|
|
|||||||
Warrants issued for services
|
|
|
|
|||||||||
Stock-based compensation
|
|
|
|
|||||||||
Ending balances
|
|
|
|
|||||||||
Accumulated deficit (retained earnings)
|
||||||||||||
Beginning balances
|
(
|
)
|
(
|
)
|
(
|
)
|
||||||
Net (loss) income
|
(
|
)
|
(
|
)
|
|
|||||||
Dividends
|
|
|
(
|
)
|
||||||||
Ending balances
|
(
|
)
|
(
|
)
|
(
|
)
|
||||||
Accumulated other comprehensive loss:
|
||||||||||||
Beginning balances
|
(
|
)
|
(
|
)
|
(
|
)
|
||||||
Change in unrealized investment (loss) gain, net
|
(
|
)
|
(
|
)
|
|
|||||||
Change in foreign currency translation, net
|
|
(
|
)
|
|
||||||||
Ending balances
|
(
|
)
|
(
|
)
|
(
|
)
|
||||||
Total shareholders’ equity, ending balances
|
$
|
|
$
|
|
$
|
|
||||||
Dividends per share
|
$ | $ | $ |
|
Year Ended
December 31, 2022
|
Year Ended
December 31, 2021
|
Year Ended
December 31, 2020
|
|||||||||
Cash flows from operating activities:
|
||||||||||||
Net (loss) income
|
$
|
(
|
)
|
$
|
(
|
)
|
$
|
|
||||
Adjustments to reconcile net (loss) income to
net cash from operating activities:
|
||||||||||||
Depreciation
|
|
|
|
|||||||||
Stock-based compensation
|
|
|
|
|||||||||
Amortization of warrants issuance costs
|
|
|
|
|||||||||
Deferred income taxes
|
|
(
|
)
|
(
|
)
|
|||||||
Changes in assets and liabilities:
|
||||||||||||
Prepaid expenses and other current assets
|
|
|
|
|||||||||
Accounts payable and accrued liabilities
|
|
(
|
)
|
(
|
)
|
|||||||
Other liabilities
|
(
|
)
|
|
(
|
)
|
|||||||
Accrued payroll and related expenses
|
|
|
(
|
)
|
||||||||
Accrued licensing costs
|
(
|
)
|
(
|
)
|
|
|||||||
Accounts receivable
|
|
(
|
)
|
(
|
)
|
|||||||
Prepaid income taxes
|
(
|
)
|
|
(
|
)
|
|||||||
Net cash (used in) provided by 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) provided by investing activities
|
(
|
)
|
|
(
|
)
|
|||||||
Cash flows from financing activities:
|
||||||||||||
Proceeds from exercise of options
|
|
|
|
|||||||||
Proceeds from sale of common stock
|
|
|
|
|||||||||
Dividends paid on common stock
|
|
|
(
|
)
|
||||||||
Taxes paid on cashless exercise of restricted stock units
|
(
|
)
|
(
|
)
|
(
|
)
|
||||||
Net cash used in financing activities
|
(
|
)
|
(
|
)
|
(
|
)
|
||||||
Net (decrease) increase in cash and cash equivalents
|
(
|
)
|
(
|
)
|
|
|||||||
Cash and cash equivalents, beginning of period
|
|
|
|
|||||||||
Cash and cash equivalents, end of period
|
$
|
|
$
|
|
$
|
|
||||||
Cash paid for income taxes
|
$
|
|
$
|
|
$
|
|
Classification of Payment Received in the Company’s Condensed Consolidated Statement of Operations
|
||||
Year Ended:
|
||||
December 31, 2020
|
||||
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
|
$
|
|
December 31
|
||||||||
2022
|
2021
|
|||||||
Office furniture
|
$
|
|
$
|
|
||||
Computer equipment
|
|
|
||||||
Total
|
|
|
||||||
Less accumulated depreciation
|
(
|
)
|
(
|
)
|
||||
Total property and equipment, net
|
$
|
|
$
|
|
Options Outstanding
|
Options Vested and Exercisable
|
|||||||||||||||||||||||
Range of
Exercise Prices |
Number
Outstanding
|
Weighted
Average
Remaining
Contractual
Life (Years)
|
Weighted
Average
Exercise
Price
|
Number
Exercisable
|
Weighted
Average
Remaining
Contractual
Life (Years)
|
Weighted
Average
Exercise
Price
|
||||||||||||||||||
$ |
$ |
$ |
||||||||||||||||||||||
$
|
|
|
$
|
|
|
|
$
|
|
||||||||||||||||
$
|
|
|
$
|
|
|
|
$
|
|
||||||||||||||||
|
|
$
|
|
|
|
$
|
|
Options
|
||||||||||||||||
Number of
Shares
|
Weighted
Average
Exercise
Price
|
Weighted
Average
Remaining
Contractual
Life (Years)
|
Aggregate
Intrinsic
Value
|
|||||||||||||
Outstanding at December 31, 2019 | $ |
— | $ |
— | ||||||||||||
Options granted | — | — | ||||||||||||||
Options exercised | ( |
) | — | — | ||||||||||||
Options cancelled | ( |
) | — | — | ||||||||||||
Outstanding at December 31, 2020
|
|
$
|
|
—
|
$
|
—
|
||||||||||
Options granted
|
|
|
—
|
—
|
||||||||||||
Options exercised
|
|
|
—
|
—
|
||||||||||||
Options cancelled
|
(
|
)
|
|
—
|
—
|
|||||||||||
Outstanding at December 31, 2021
|
|
$
|
|
—
|
$
|
|
||||||||||
Options granted
|
|
|
—
|
—
|
||||||||||||
Options exercised
|
|
|
—
|
—
|
||||||||||||
Options cancelled
|
(
|
)
|
|
—
|
—
|
|||||||||||
Outstanding at December 31, 2022
|
|
$
|
|
|
$
|
|
||||||||||
Options exercisable at December 31, 2022
|
|
$
|
|
|
$
|
|
RSUs
|
||||||||||||
Number of
RSUs
|
Weighted
Average
Grant Date
Fair Value
|
Aggregate
Intrinsic
Value
|
||||||||||
Outstanding at December 31, 2019 | $ | $ | ||||||||||
RSUs granted | — |
|||||||||||
RSUs vested | ( |
) | — |
|||||||||
RSUs cancelled | — | |||||||||||
Outstanding at December 31, 2020
|
|
$
|
|
$
|
|
|||||||
RSUs granted
|
|
|
—
|
|||||||||
RSUs vested
|
(
|
)
|
|
—
|
||||||||
RSUs cancelled
|
(
|
)
|
|
—
|
||||||||
Outstanding at December 31, 2021
|
|
$
|
|
$
|
|
|||||||
RSUs granted
|
|
|
—
|
|||||||||
RSUs vested
|
(
|
)
|
|
—
|
||||||||
RSUs cancelled |
— | |||||||||||
Outstanding at December 31, 2022
|
|
$
|
|
$
|
|
Stock-Based Compensation by Type of Award
|
Year Ended
December 31, 2022
|
Year Ended
December 31, 2021
|
Year Ended
December 31, 2020
|
|||||||||
Stock options
|
$
|
|
$
|
|
$ |
|||||||
RSUs
|
|
|
||||||||||
Total stock-based compensation expense
|
$
|
|
$
|
|
$ |
Year Ended
December 31, 2022
|
Year Ended
December 31, 2021
|
Year Ended
December 31, 2020
|
||||||||||
Expected stock price volatility
|
|
%
|
|
%
|
% | |||||||
Risk-free interest rate
|
|
%
|
|
%
|
% | |||||||
Expected life term
|
|
|
||||||||||
Expected dividends
|
|
%
|
|
%
|
% |
Year Ended December 31, | ||||||||||||
2022
|
2021
|
2020 |
||||||||||
Net (loss) income
|
$
|
(
|
)
|
$
|
(
|
)
|
$ | |||||
Basic weighted average number of shares outstanding
|
||||||||||||
Effect of dilutive securities
|
|
|
||||||||||
Diluted weighted average number of shares outstanding
|
|
|
||||||||||
Basic (loss) earnings per share
|
$
|
(
|
)
|
$
|
(
|
)
|
$ | |||||
Diluted (loss) earnings per share
|
$
|
(
|
)
|
$
|
(
|
)
|
$ |
Warrants Issued
|
Exercise
Price
|
Outstanding and
Exercisable
December 31, 2021
|
Issued
|
Exercised
|
Terminated /
Cancelled
|
Outstanding and
Exercisable
December 31, 2022
|
Expiration Date
|
|||||||||||||||||||||
|
$
|
|
|
|
|
|
|
|
Year Ended
December 31, 2022 |
Year Ended
December 31, 2021 |
Year Ended December 31, 2020 |
||||||||||
Current:
|
||||||||||||
Federal
|
$
|
|
$
|
|
$ | |||||||
State
|
|
|
||||||||||
Foreign | ||||||||||||
|
|
|||||||||||
Deferred:
|
||||||||||||
Federal
|
|
(
|
)
|
( |
) | |||||||
State
|
|
|
( |
) | ||||||||
( |
) | ( |
) | |||||||||
Total income tax (benefit) provision
|
$ |
$
|
(
|
)
|
$ |
Year Ended
December 31, 2022 |
Year Ended
December 31, 2021 |
Year Ended December 31, 2020 |
||||||||||
United States federal statutory rate
|
|
%
|
|
%
|
% | |||||||
State taxes, net of federal benefit
|
(
|
)%
|
(
|
)%
|
% | |||||||
Valuation allowance
|
(
|
)%
|
|
( |
)% | |||||||
Stock based compensation
|
(
|
)%
|
(
|
)%
|
( |
)% | ||||||
R&D Credit
|
|
%
|
|
%
|
( |
)% | ||||||
Other
|
(
|
)%
|
(
|
)%
|
% | |||||||
Effective income tax rate
|
( |
)% |
|
%
|
% |
As of
December 31, 2022 |
As of
December 31, 2021 |
|||||||
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 – depreciation and
amortization
|
|
(
|
)
|
|||||
Net deferred tax assets
|
$
|
|
$
|
|
December 31, 2022
|
||||||||||||||||||||||||
Adjusted
Cost |
Unrealized
Gains |
Unrealized
Losses |
Fair
Value |
Cash
and Cash Equivalents |
Investments
Available for Sale |
|||||||||||||||||||
Cash
|
$
|
|
$
|
—
|
$
|
—
|
$
|
|
$
|
|
$
|
—
|
||||||||||||
Level 1:
|
||||||||||||||||||||||||
Mutual funds
|
|
|
|
|
|
|
||||||||||||||||||
U.S. agency and treasury securities
|
|
|
(
|
)
|
|
|
|
|||||||||||||||||
|
|
(
|
)
|
|
|
|
||||||||||||||||||
Total
|
$
|
|
$
|
9
|
$
|
(386
|
)
|
$
|
|
$
|
|
$
|
|
December 31, 2021
|
||||||||||||||||||||||||
Adjusted
Cost |
Unrealized
Gains |
Unrealized
Losses |
Fair
Value |
Cash
and Cash Equivalents |
Investments
Available for Sale |
|||||||||||||||||||
Cash
|
$
|
|
$
|
—
|
$
|
—
|
$
|
|
$
|
|
$
|
—
|
||||||||||||
Level 1:
|
||||||||||||||||||||||||
Mutual funds
|
|
|
|
|
|
|
||||||||||||||||||
U.S. agency and treasury securities |
( |
) | ||||||||||||||||||||||
|
|
(
|
)
|
|
|
|
||||||||||||||||||
Total
|
$
|
|
$
|
—
|
$
|
(50
|
)
|
$
|
|
$
|
|
$
|
|
Item 9. |
Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
|
Item 9A. |
Controls and Procedures
|
Item 9B. |
Other Information
|
Item 9C. |
Disclosure Regarding Foreign Jurisdictions that Prevent Inspections
|
Item 10. |
Directors, Executive Officers and Corporate Governance
|
Item 11. |
Executive Compensation
|
Item 12. |
Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters
|
Plan Category
|
Number of
Securities to be
Issued Upon
Exercise of
Outstanding
Options and
RSUs
|
Weighted-Average
Exercise Price of
Outstanding
Options and RSUs
|
Number of
Securities
Remaining
Available for
Future Issuance
Under Equity
Compensation
Plans
|
|||||||||
Equity compensation plans approved by security holders
|
7,368,130
|
$
|
5.21
|
1,563,345
|
||||||||
Equity compensation plans not approved by security holders
|
—
|
—
|
||||||||||
Total
|
7,368,130
|
$
|
5.21
|
1,563,345
|
Item 13. |
Certain Relationships and Related Transactions, and Director Independence
|
Item 14. |
Principal Accountant Fees and Services
|
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
Number
|
Description
|
Incorporated by reference herein
|
||||
Form
|
Exhibit No.
|
Filing Date
|
File No.
|
Filed Herewith |
||
3.1
|
8-K
|
3.1
|
11/01/2007
|
000-26895
|
||
3.2
|
8-K
|
3.1
|
1/27/2023
|
001-33852
|
||
4.2
|
S-3
|
4.1
|
07/30/2018
|
333-226413
|
||
4.3
|
S-3
|
4.2
|
07/30/2018
|
333-226413
|
||
4.4
|
S-3
|
4.4
|
07/30/2018
|
333-226413
|
||
4.5
|
10-K
|
4.6
|
03/16/2020
|
001-33852
|
||
10.1
|
10-K
|
10.1
|
03/18/2019
|
001-33852
|
||
10.2*
|
10-Q
|
10.2
|
05/10/2012
|
001-33852
|
||
10.3*
|
10-Q
|
4.5
|
05/10/2011
|
001-33852
|
||
10.4*
|
10-Q
|
10.3
|
05/10/2012
|
001-33852
|
||
10.5*
|
DEF 14A
|
Appendix A
|
04/13/2021
|
001-33852
|
||
10.6*
|
10-K
|
10.6
|
03/02/2015
|
001-33852
|
||
10.7*
|
10-K
|
10.7
|
03/02/2015
|
001-33852
|
||
10.12
|
8-K
|
10.4
|
07/12/2007
|
000-26895
|
||
10.13**
|
8-K
|
10.6
|
07/12/2007
|
000-26895
|
||
10.14
|
8-K
|
10.1
|
03/18/2008
|
001-33852
|
||
10.15
|
8-K
|
10.5
|
07/12/2007
|
000-26895
|
||
10.16
|
8-K
|
10.7
|
07/12/2007
|
000-26895
|
||
10.17
|
8-K
|
10.8
|
07/12/2007
|
000-26895
|
||
10.18**
|
10-Q/A
|
10.1
|
01/31/2011
|
001-33852
|
||
10.19**
|
10-K
|
10.23
|
03/02/2015
|
001-33852
|
||
10.20**
|
10-Q
|
10.1
|
11/09/2017
|
001-33852
|
||
10.21
|
10-Q
|
10.2
|
11/09/2017
|
001-33852
|
||
10.22
|
8-K
|
10.1
|
08/31/2018
|
001-33852
|
||
10.23*
|
10-Q
|
10.1
|
11/08/2021
|
001-33852
|
||
21.1
|
10-K
|
21.1
|
03/16/2021
|
001-33852
|
Consent of Farber Hass Hurley LLP, Independent Registered Public Accounting Firm.
|
X |
|||||
Power of Attorney (contained on signature page hereto)
|
X |
|||||
Chief Executive Officer Certification pursuant to Rule 13a-14(a) of the Securities Exchange Act.
|
X |
|||||
Chief Financial Officer Certification pursuant to Rule 13a-14(a) of the Securities Exchange Act.
|
X |
|||||
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
|
X |
|||||
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.
|
X |
|||||
101.INS
|
XBRL Instance Document
|
X |
||||
101.SCH
|
XBRL Taxonomy Extension Schema Document
|
X |
||||
101.CAL
|
XBRL Taxonomy Extension Calculation Linkbase Document
|
X |
||||
101.DEF
|
XBRL Taxonomy Extension Definition Linkbase Document
|
X |
||||
101.LAB
|
XBRL Taxonomy Extension Label Linkbase Document
|
X |
||||
101.PRE
|
XBRL Taxonomy Extension Presentation Linkbase Document
|
|||||
104
|
Cover Page Interactive Data File (formatted as inline XBRL and contained in Exhibit 101)
|
X |
* |
Indicates management contract or compensatory plan.
|
** |
Confidential treatment has been granted by the SEC as to certain portions of this exhibit.
|
*** |
Portions of this exhibit have been omitted pending a determination by the SEC as to whether these portions should be granted confidential treatment.
|
† |
The certifications attached as Exhibit 32.1 and 32.2 that accompany this Report 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 or the Exchange Act, whether before or after the date of this Report, irrespective of any general incorporation language contained in such filing.
|
VirnetX Holding Corporation
|
||
By:
|
/s/ Kendall Larsen
|
|
Name: Kendall Larsen
|
||
Title: Chief Executive Officer and President
|
||
Dated: March 31, 2023
|
Name
|
Capacity
|
Date
|
||
/s/Kendall Larsen
|
Director, Chief Executive Officer and President
|
March 31, 2023
|
||
Kendall Larsen
|
(Principal Executive Officer)
|
|||
/s/Katherine Allanson
|
Chief Financial Officer
|
March 31, 2023
|
||
Katherine Allanson
|
(Principal Financial Officer and
Principal Accounting Officer)
|
|||
/s/Robert D. Short III
|
Director
|
March 31, 2023
|
||
Robert D. Short III
|
||||
/s/Gary Feiner
|
Director
|
March 31, 2023
|
||
Gary Feiner
|
||||
/s/Michael F. Angelo
|
Director
|
March 31, 2023
|
||
Michael F. Angelo
|
||||
/s/Thomas M. O’Brien
|
Director
|
March 31, 2023
|
||
Thomas M. O’Brien
|
1. |
I have reviewed this Annual Report on Form 10-K of VirnetX Holding Corporation for the fiscal year ended December 31, 2022;
|
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 (the registrant’s fourth fiscal quarter in
the case of an annual report) 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.
|
/s/ Kendall Larsen
|
|
Kendall Larsen
|
|
President and Chief Executive Officer
|
|
(Principal Executive Officer)
|
|
Date: March 31, 2023
|
1. |
I have reviewed this Annual Report on Form 10-K of VirnetX Holding Corporation for the fiscal year ended December 31, 2022;
|
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 (the registrant’s fourth fiscal quarter in
the case of an annual report) 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.
|
/s/ Katherine Allanson
|
|
Katherine Allanson
|
|
Chief Financial Officer
|
|
(Principal Accounting and Financial Officer)
|
|
Date: March 31, 2023
|
(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 results of operations of the Company.
|
/s/ Kendall Larsen
|
|
Kendall Larsen
|
|
President and Chief Executive Officer
|
|
(Principal Executive Officer)
|
|
Date: March 31, 2023
|
(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 results of operations of the Company.
|
/s/ Katherine Allanson
|
|
Katherine Allanson
|
|
Chief Financial Officer
|
|
(Principal Accounting and Financial Officer)
|
|
Date: March 31, 2023
|
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CONSOLIDATED BALANCE SHEETS (Parenthetical) - $ / shares |
Dec. 31, 2022 |
Dec. 31, 2021 |
---|---|---|
Stockholders' equity: | ||
Preferred stock, par value (in dollars per share) | $ 0.0001 | $ 0.0001 |
Preferred stock, shares authorized (in shares) | 10,000,000 | 10,000,000 |
Preferred stock, shares issued (in shares) | 0 | 0 |
Preferred stock, shares outstanding (in shares) | 0 | 0 |
Common stock, par value (in dollars per share) | $ 0.0001 | $ 0.0001 |
Common stock, shares authorized (in shares) | 100,000,000 | 100,000,000 |
Common stock, shares issued (in shares) | 71,424,650 | 71,232,856 |
Common stock, shares outstanding (in shares) | 71,424,650 | 71,232,856 |
CONSOLIDATED STATEMENTS OF COMPREHENSIVE (LOSS) INCOME - USD ($) $ in Thousands |
12 Months Ended | ||
---|---|---|---|
Dec. 31, 2022 |
Dec. 31, 2021 |
Dec. 31, 2020 |
|
CONSOLIDATED STATEMENTS OF COMPREHENSIVE (LOSS) INCOME [Abstract] | |||
Net (loss) income | $ (36,260) | $ (42,921) | $ 280,429 |
Other comprehensive (loss) income, net of tax: | |||
Change in unrealized (loss) gain on investments, net | (246) | (51) | 0 |
Change in foreign currency translation, net | 0 | (4) | 1 |
Total other comprehensive (loss) gain, net of tax | (246) | (55) | 1 |
Comprehensive (loss) income | $ (36,506) | $ (42,976) | $ 280,430 |
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY (Parenthetical) - $ / shares |
12 Months Ended | ||
---|---|---|---|
Dec. 31, 2022 |
Dec. 31, 2021 |
Dec. 31, 2020 |
|
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY [Abstract] | |||
Dividends per share (in dollars per share) | $ 0 | $ 0 | $ 1 |
Formation and Business of the Company |
12 Months Ended |
---|---|
Dec. 31, 2022 | |
Formation and Business of the Company [Abstract] | |
Formation and Business of the Company |
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 derive revenue from selling our software products including VirnetX War Room™ and VirnetX Matrix™ and licensing our technology, including VirnetX One™, and our secure domain name technology GABRIEL Connection
Technology™, to various original equipment manufacturers (“OEMs”) and others, 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 or who seek to secure their systems and applications. During 2020, we had revenues from settlement of a patent infringement dispute whereby we received consideration for past sales of licensee that utilized our technology, where there was no
prior patent license agreement.
Our portfolio of intellectual property is the foundation of our business model. We currently own approximately 205 total patents and pending applications, including 72
U.S. patents/patent applications and 133 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. 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. Some of our issued U.S.
and foreign patents expire at various times during the period from 2023 to 2034.
|
Summary of Significant Accounting Policies |
12 Months Ended | ||||||||||||||||||||||||||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Dec. 31, 2022 | |||||||||||||||||||||||||||||||||||||||||
Summary of Significant Accounting Policies [Abstract] | |||||||||||||||||||||||||||||||||||||||||
Summary of Significant Accounting Policies |
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 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.
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. 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. Elements of the payment were recognized in the Company’s condensed consolidated statement of operations as follows:
Licensing Costs
Included in operating expenses are 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
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.
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.
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. In 2022, 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.
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
to seven years. Repair and maintenance costs are charged to expense as incurred.Leases
The Company determines if an arrangement is a lease at inception in accordance with ASC Topic 842. Operating lease right-of-use (“ROU”) assets are
included in Prepaid expenses, and other assets on the Condensed Consolidated Balance Sheets. 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.
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.
The 2017 U.S. Tax Cuts
and Jobs Act changes IRC Section 174, regarding capitalization of book research and development (“R&D”) expenses for income tax purposes. Effective for tax years beginning in 2022 IRC Section 174 requires the capitalization of book R&D
expenses which are capitalized and amortized over 5 years for domestic R&D expenses and over 15 years for foreign R&D expenses. To date there has been limited guidance from the IRS on how to quantify the amount of book R&D expenses
subject to capitalization, including the indirect expenses supporting the R&D function. Due to the limited guidance, some assumptions were made in our estimates.
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. 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, which 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 a vesting term of 4 years. We recognize
forfeitures, if any, when they occur. 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 instruments issued, as they vest, over the
performance period (See Note 6 - Stock-Based Compensation).
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.
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 adopted this ASU on January 1, 2021 and there was no material impact on our financial position or cash flows as a result.
|
Property and Equipment |
12 Months Ended | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Dec. 31, 2022 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Property and Equipment [Abstract] | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Property and Equipment |
Note 3 − Property and Equipment
Our major classes of property and equipment were as follows:
Depreciation expense for 2022, 2021 and 2020 was $7,
$4, and $5, respectively.
|
Commitments, Contingencies and Related Party Transactions |
12 Months Ended |
---|---|
Dec. 31, 2022 | |
Commitments, Contingencies and Related Party Transactions [Abstract] | |
Commitments, Contingencies and Related Party Transactions |
Note 4 − Commitments, Contingencies and Related Party Transactions
We lease our offices under an operating lease with a third party expiring in
. We recognize rent expense on a straight-line basis over the term of the lease. Rent expense was $54 in 2022 and $56 for both 2021 and 2020. Future minimum rents due under the lease total $46 in 2023, 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 our employees. We
incurred approximately $1,123, $791,
and $324 in rental fees and reimbursements to the LLC in 2022, 2021 and 2020, 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.
|
Stock Plan |
12 Months Ended |
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Dec. 31, 2022 | |
Stock Plan [Abstract] | |
Stock Plan |
Note 5 − Stock Plan
We have an equity 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 expires in 2023.
In April 2021, the Board approved an amendment and restatement of the 2013 Plan to, among other things, increase the shares reserved under the Plan
by 2,500,000 shares (the “Plan Amendment”). Our stockholders approved the Plan Amendment at the 2021 Annual Meeting of the Stockholders
held on June 3, 2021. The 2013 Plan generally provides for the granting of shares of our common stock, including stock options and RSUs. 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. As of December 31, 2022, there were 1,563,345 shares available for grant under the 2013 Plan.
|
Stock-Based Compensation |
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Stock-Based Compensation [Abstract] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Stock-Based Compensation |
Note 6 − Stock-Based Compensation
The following tables summarize information and activity under the plan for the indicated periods.
Intrinsic value is calculated as the difference between the per-share market price of our common stock on the last trading day of 2022, which was $1.30 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. In 2022 and 2021, no options were exercised. In 2020, we received cash proceeds of $1,046 from stock options exercised. The total intrinsic value of options exercised was $151 in 2020.
Stock-based compensation expense is included in operating expense for each period as follows:
As of December 31, 2022, there was $3,972
of unrecognized stock-based compensation expense related to unvested stock options and $1,449 of unrecognized stock-based compensation
expense related to unvested RSUs. These costs are expected to be recognized over a weighted-average period of 2.66 and 2.43 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:
Based on
the Black-Scholes option pricing model, the weighted average estimated fair value of employee stock options granted was $1.09, $3.32 and $4.62 per share during 2022,
2021 and 2020, 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.
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Earnings Per Share |
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Earnings Per Share [Abstract] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Earnings Per Share |
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 2022 and 2021, we incurred losses;
therefore, the effect of any common stock equivalent would be anti-dilutive during those years.
The table below sets forth the basic and diluted loss per share calculations:
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Common Stock |
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Common Stock [Abstract] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Common Stock |
Note 8 − Common Stock
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 universal shelf registration statement on SEC Form S-3. This replacement registration statement was declared effective by the
SEC on August 16, 2018. We used the universal shelf proceeds for development and marketing of our software product and services, and general corporate purposes. The universal shelf registration expired August 16, 2021.
Dividends
On May 8, 2020, we declared a
special 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
. 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.
In April 2020, 25,000 warrants with an exercise price of $7.00 per share
expired.
|
Employee Benefit Plan |
12 Months Ended |
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Dec. 31, 2022 | |
Employee Benefit Plan [Abstract] | |
Employee Benefit Plan |
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 $179, $145, and $112 in 2022, 2021 and 2020, respectively.
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Income Taxes |
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Income Taxes [Abstract] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Income Taxes |
Note 10 − Income Taxes
The income tax provision (benefit) is comprised of the following:
A reconciliation of the United States federal statutory income tax rate to our effective income tax rate is as follows:
The Company’s effective tax rate for 2022 and 2020 was substantially lower than the statutory Federal income tax rate primarily due to the change in valuation
allowance. The Company’s effective tax rate for 2021 was substantially lower than the statutory Federal income tax rate primarily due to the effect of stock based compensation, including expiring options.
Deferred tax assets (liabilities) consist of the following:
Pursuant to changes in
IRC Section 174 effective for 2022, we capitalized direct and indirect research and development costs in our tax return totaling $5,140;
$514 of these expenses will be amortized in our 2022 tax return. At December 31, 2022, we had federal and state net operating loss
carryforwards of approximately $57,085 and $108,745,
respectively. Federal net operating loss carryforwards do not expire. None of the state net operating loss carryforward is apportioned to a deferred tax asset, because currently we do not have operations in states where losses accumulated. The
state net operating loss carryforward begins expiring in
.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. At December 31, 2022, 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, which is October 2024.
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 in 2022.
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Fair Value Measurement |
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Fair Value Measurement [Abstract] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Fair Value Measurement |
Note 11 − Fair Value Measurement
Fair value is the price that would result from an orderly transaction between market participants at the measurement date. A fair value hierarchy prioritizes the inputs used to measure fair value. The hierarchy gives
the highest priority to unadjusted quoted prices in active markets for identical assets or liabilities (Level 1 measurement) and the lowest priority to unobservable inputs (Level 3 measurement). Level 2 measurements utilize either directly or
indirectly observable inputs in markets other than quoted prices in active markets.
Our
financial instruments are stated at amounts that equal, or approximate, fair value. When we estimate 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 valuation techniques, primarily the income and market approach, which maximizes the use of observable inputs and minimize the use of unobservable inputs for recurring fair value
measurements.
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, 2022 and 2021 (in thousands):
The maturities of our investments generally range from within
to two years. Actual maturities could differ from contractual maturities due
to call or prepayment provisions. |
Litigation |
12 Months Ended |
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Dec. 31, 2022 | |
Litigation [Abstract] | |
Litigation |
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 Court of Appeals for the Federal Circuit (“USCAFC”).
VirnetX Inc. v. Apple, Inc.
(Case 6:12-CV-00855-LED) (“Apple II”)
This case began on November 6, 2012, when we
filed a complaint against Apple in United States District Court (“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. 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 United States Court of Appeals for the Federal Circuit (“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.
On February 22, 2021, USCAFC docketed the
appeal as Case No. 19-1672. Apple’s opening brief was filed on June 2, 2021. VirnetX filed its responsive brief on July 26, 2021. Apple filed its reply brief on September 13, 2021. The briefing is complete, and oral arguments were held on September
8, 2022. On March 31, 2023, the Federal Circuit issued its decision vacating the district court’s judgement in this matter and remanding it back to the district court with instructions to dismiss the case as moot. We are evaluating all of our
available options in this matter, including potentially seeking rehearing or certiorari review.
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 (USCAFC Case 20-2272)
On September 15, 2020,
we filed with the USCAFC an appeal of the invalidity findings by the Patent Trial and Appeal Board (“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. On March 16, 2021, the
USCAFC denied the motion without prejudice to us raising the challenges made in the motion in our opening brief. Our opening brief was filed on June 7, 2021.
On June 23, 2021, the USCAFC entered an order directing us (and parties in other appeals that raised Appointments Clause challenges) to file a brief explaining how they believe their cases should proceed in light of
the Supreme Court’s decision in United States v. Arthrex, Inc., 141 S. Ct. 1970 (2021). On July 7, 2021, we filed a brief in response to the court’s order. Other parties, including the U.S. Patent and Trademark Office (“USPTO”) filed their
responses on July 21, 2021. On August 19, 2021, USCAFC issued an order remanding these appeals for the limited purpose of allowing VirnetX the opportunity to request rehearing of the PTAB’s final written decisions by the Director of the USPTO.
The USCAFC retained jurisdiction over the appeals in the meantime. On September 20, 2021, we filed our requests for Director rehearing with the USPTO. On October 29, 2021, our requests for Director rehearing were denied. We subsequently filed
an amended opening brief to the USCAFC on December 10, 2021, the other parties filed response briefs on February 2, 2022, and we filed a reply brief on February 22, 2022. All the briefings have been completed. The oral arguments in this matter
were held on September 8, 2022. On March 30, 2023, the USCAFC issued its decision affirming PTAB’s decisions finding certain claims of the ‘135 patent and the ‘151 patent to be unpatentable. We are evaluating all of our available
options in this matter, including potentially seeking rehearing or certiorari review.
VirnetX Inc. v. Hirshfeld (USCAFC Case
17-2593, -2594)
On September 22, 2017,
we filed with the USCAFC an appeal of the invalidity findings by the PTAB in inter-partes review proceeding IPR2016-00693 involving our U.S. Patent No. 7,418,504, and an appeal of the invalidity findings by the PTAB in inter-partes review
proceeding IPR2016-00957 involving our U.S. Patent No. 7,921,211. On September 16, 2021, USCAFC issued an order remanding these appeals for the limited purpose of allowing VirnetX the opportunity to request rehearing of the PTAB’s final written
decisions by the Director of the USPTO. The USCAFC retained jurisdiction over the appeals in the meantime. On October 18, 2021, we filed our requests for Director rehearing with the USPTO. On January 7, 2022, our requests for Director rehearing
were denied. On January 21, 2022, we informed the USCAFC about the denial of Director rehearing and requested that the court dismiss the appeal involving IPR2016-00957 as moot and vacate the PTAB’s underlying decision. On April 4, 2022, the USCAFC
vacated the PTAB’s decision in IPR2016-00957 and remanded Appeal No. 17-2594 with instructions to dismiss. In the April 4, 2022 order, the USCAFC further set a briefing schedule, in Appeal No. 17-2593. VirnetX filed its opening brief on September
12, 2022. The USPTO filed its response brief on December 20, 2022. VirnetX filed its reply brief on February 14, 2023, and we currently await scheduling of oral arguments.
VirnetX Inc. v. Cisco Systems, Inc. (USCAFC
Case 19-1671)
On March 18, 2019, we filed with the USCAFC an appeal of the invalidity findings by the PTAB in inter-partes re-examination proceeding 95/001,679 involving our U.S. Patent No. 6,502,135.
On October 5, 2021, USCAFC issued an order remanding these appeals for the limited purpose of allowing VirnetX the opportunity to request rehearing of the PTAB’s final written decisions by the Director of the PTO. The USCAFC retained jurisdiction
over the appeals in the meantime. Our request for Director rehearing with the PTO was filed on November 5, 2021. On January 10, 2022, our request for Director rehearing was denied. We informed the USCAFC about the denial of Director rehearing.
VirnetX’s opening brief was filed on June 23, 2022. The USPTO’s response brief was filed on August 2, 2022, and Cisco’s response brief was filed on September 2, 2022. VirnetX filed its reply brief on October 7, 2022, and we currently await
scheduling of oral arguments.
VirnetX Inc. v. Apple Inc. (USCAFC Case 22-1523) (“Apple Reexam I”)
On March 10, 2022, we filed with the USCAFC an appeal of the invalidity findings by the PTAB in inter-partes re-examination proceeding 95/001,682 involving our U.S.
Patent No. 6,502,135. Our opening brief was filed on August 22, 2022. Apple and USPTO each filed a response brief on December 28, 2022. VirnetX filed its reply brief on February 8, 2023, and we currently await scheduling of oral arguments.
VirnetX Inc. v. Apple Inc. (USCAFC Case 22-1997) (“Apple Reexam II”)
On July 6, 2022, we filed with the USCAFC an appeal of the invalidity findings by the PTAB in inter-partes re-examination proceeding 95/001,697 involving our U.S.
Patent No. 7,490,151. On October 17, 2022, we filed a motion to remand the appeal in light of the PTAB’s refusal to permit Director rehearing. On January 23, 2023, the USCAFC denied that motion without prejudice to the parties raising their
arguments in the merits briefs. VirnetX’s opening brief is currently due April 24, 2023.
VirnetX Inc. v. Cisco Systems, Inc. (USCAFC Case 22-2234)
On September 16, 2022, we filed with the
USCAFC an appeal of the invalidity findings by the PTAB in inter-partes re-examination proceeding 95/001,851 involving our U.S. Patent No. 7,418,504. We filed our opening brief on February 28, 2023.
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 claimed that a retention agreement it entered into in 2010 with VirnetX entitled it to a
contingency fee arising from the recent 2020 payment made in the Apple I case. McKool claimed it was owed approximately $36,300 (or 8% of the Apple I payment). We filed a general response with the AAA denying McKool’s claim and contested the matter vigorously. An evidentiary hearing
was held on the matter during the week of February 22, 2021 and the parties submitted additional briefings. On April 19, 2021, the arbitrator awarded McKool $36,323 in damages, plus pre-judgment interest in the amount of 5% simple interest from March 23, 2020
to April 18, 2021, and post-judgment interest in the amount of 5%, compounded annually, until payment of the award. We accrued the
resulting $38,284 as of March 31, 2021 and paid that amount to McKool on April 20, 2021. This
matter is now closed.
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.
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Leases |
12 Months Ended |
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Dec. 31, 2022 | |
Leases [Abstract] | |
Leases |
Note 13 − Leases
We lease office space under an operating lease which expires on October 31, 2023. At December 31, 2022, the underlying ROU asset and lease
liability totaled $45. At December 31, 2021, the underlying ROU asset and lease liability totaled $98. Lease expense totaled $54 in
2022 and $56 in 2021 and 2020.
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. No other terms of the original agreement were affected and there was no impact on cash flow. At December 31, 2022 and 2021, the ROU asset
totaled $648 and $948,
respectively; lease expense totaled $300, $300
and $356, during 2022, 2021 and 2020, respectively.
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Subsequent Event |
12 Months Ended |
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Dec. 31, 2022 | |
Subsequent Event [Abstract] | |
Subsequent Event |
Note 14 − Subsequent Event
On March 30, 2023,
we declared a special cash dividend of $1.00 per common share to be paid on or about April 17, 2023 to shareholders of record on April 10, 2023. If the
final outcome of the Apple II litigation described elsewhere in this Form 10-K results in proceeds to us, we are committed to distribute to our shareholders a substantial portion of the net proceeds (after legal costs, licensing costs and taxes),
after the case concludes.
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Summary of Significant Accounting Policies (Policies) |
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Summary of Significant Accounting Policies [Abstract] | |||||||||||||||||||||||||||||||||||||||||
Use of Estimates |
Use of Estimates
We prepare our consolidated financial statements in accordance with 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.
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Basis of Consolidation |
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.
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Revenue Recognition |
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. 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. Elements of the payment were recognized in the Company’s condensed consolidated statement of operations as follows:
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Licensing Costs |
Licensing Costs
Included in operating expenses are 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.
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Contingent Gains |
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.
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Cash and Cash Equivalents |
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.
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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.
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Concentration of Credit Risk and Other Risks and Uncertainties |
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. In 2022, 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.
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Fair Value |
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.
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Property and Equipment |
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
to seven years. Repair and maintenance costs are charged to expense as incurred. |
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Leases |
Leases
The Company determines if an arrangement is a lease at inception in accordance with ASC Topic 842. Operating lease right-of-use (“ROU”) assets are
included in Prepaid expenses, and other assets on the Condensed Consolidated Balance Sheets. 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.
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Intangible Assets |
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.
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Impairment of Long-Lived 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.
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Research and Development |
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.
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Income Taxes |
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.
The 2017 U.S. Tax Cuts
and Jobs Act changes IRC Section 174, regarding capitalization of book research and development (“R&D”) expenses for income tax purposes. Effective for tax years beginning in 2022 IRC Section 174 requires the capitalization of book R&D
expenses which are capitalized and amortized over 5 years for domestic R&D expenses and over 15 years for foreign R&D expenses. To date there has been limited guidance from the IRS on how to quantify the amount of book R&D expenses
subject to capitalization, including the indirect expenses supporting the R&D function. Due to the limited guidance, some assumptions were made in our estimates.
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. 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, which 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.
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Stock-Based Compensation |
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 a vesting term of 4 years. We recognize
forfeitures, if any, when they occur. 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 instruments issued, as they vest, over the
performance period (See Note 6 - Stock-Based Compensation).
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Earnings per Share |
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.
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New Accounting Pronouncements |
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 adopted this ASU on January 1, 2021 and there was no material impact on our financial position or cash flows as a result.
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Summary of Significant Accounting Policies (Tables) |
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Classification of Payment Received in Condensed Consolidated Statement of Operations |
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Property and Equipment (Tables) |
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Property and Equipment |
Our major classes of property and equipment were as follows:
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Stock-Based Compensation (Tables) |
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Information about Stock Options Outstanding |
The following tables summarize information and activity under the plan for the indicated periods.
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Stock Option Activity |
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RSU Activity |
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Stock-Based Compensation by Type of Award |
Stock-based compensation expense is included in operating expense for each period as follows:
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Fair Value Assumptions |
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:
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Earnings Per Share (Tables) |
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Earnings Per Share [Abstract] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Basic and Diluted Loss Per Share Calculations |
The table below sets forth the basic and diluted loss per share calculations:
|
Common Stock (Tables) |
12 Months Ended | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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Dec. 31, 2022 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Common Stock [Abstract] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Information about Warrants Outstanding |
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Income Taxes (Tables) |
12 Months Ended | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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Dec. 31, 2022 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Income Taxes [Abstract] | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Income Tax Provision (Benefit) |
The income tax provision (benefit) is comprised of the following:
|
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Effective Income Tax Rate Reconciliation |
A reconciliation of the United States federal statutory income tax rate to our effective income tax rate is as follows:
|
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Deferred Tax Assets and Liabilities |
Deferred tax assets (liabilities) consist of the following:
|
Fair Value Measurement (Tables) |
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Dec. 31, 2022 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Fair Value Measurement [Abstract] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Adjusted Cost, Gross Unrealized Gains, Gross Unrealized Losses and Fair Value of Financial Assets |
The following table shows the adjusted cost, gross unrealized gains, gross unrealized losses, and fair value of our financial assets as of December
31, 2022 and 2021 (in thousands):
|
Formation and Business of the Company (Details) - Patents [Member] |
Dec. 31, 2022
Patent
|
---|---|
Formation and Business of the Company Disclosure [Abstract] | |
Number of patents and pending applications | 205 |
U.S. [Member] | |
Formation and Business of the Company Disclosure [Abstract] | |
Number of patents and pending applications | 72 |
Foreign [Member] | |
Formation and Business of the Company Disclosure [Abstract] | |
Number of patents and pending applications | 133 |
Property and Equipment (Details) - USD ($) $ in Thousands |
12 Months Ended | ||
---|---|---|---|
Dec. 31, 2022 |
Dec. 31, 2021 |
Dec. 31, 2020 |
|
Property and Equipment [Abstract] | |||
Property and equipment, gross | $ 171 | $ 171 | |
Less accumulated depreciation | (160) | (153) | |
Property and equipment, net | 11 | 18 | |
Depreciation expense | 7 | 4 | $ 5 |
Office Furniture [Member] | |||
Property and Equipment [Abstract] | |||
Property and equipment, gross | 79 | 79 | |
Computer Equipment [Member] | |||
Property and Equipment [Abstract] | |||
Property and equipment, gross | $ 92 | $ 92 |
Commitments, Contingencies and Related Party Transactions (Details) - USD ($) $ in Thousands |
12 Months Ended | ||
---|---|---|---|
Dec. 31, 2022 |
Dec. 31, 2021 |
Dec. 31, 2020 |
|
Commitments, Contingencies and Related Party Transactions [Abstract] | |||
Future minimum rents due in 2023 | $ 46 | ||
Office [Member] | |||
Commitments, Contingencies and Related Party Transactions [Abstract] | |||
Operating lease, expiration date | Oct. 31, 2023 | ||
Rent expense | $ 54 | $ 56 | $ 56 |
K2 Investment Fund LLC [Member] | Aircraft [Member] | |||
Commitments, Contingencies and Related Party Transactions [Abstract] | |||
Rental fees incurred for use of aircraft | $ 1,123 | $ 791 | $ 324 |
Term of lease | 12 months | ||
Rate of aircraft lease (in dollars per flight hour) | $ 8 | ||
Term of notice for cancellation of lease | 30 days |
Stock-Based Compensation, Fair Value Assumptions Used (Details) - $ / shares |
12 Months Ended | ||
---|---|---|---|
Dec. 31, 2022 |
Dec. 31, 2021 |
Dec. 31, 2020 |
|
Fair value assumptions used in estimating fair value of each option grant [Abstract] | |||
Expected stock price volatility | 85.39% | 90.58% | 93.45% |
Risk-free interest rate | 3.09% | 1.06% | 0.63% |
Expected life term | 6 years 2 months 12 days | 6 years 2 months 12 days | 6 years 2 months 12 days |
Expected dividends | 0.00% | 0.00% | 0.00% |
Options granted, weighted average grant date fair value (in dollars per share) | $ 1.09 | $ 3.32 | $ 4.62 |
Earnings Per Share (Details) - USD ($) $ / shares in Units, $ in Thousands |
12 Months Ended | ||
---|---|---|---|
Dec. 31, 2022 |
Dec. 31, 2021 |
Dec. 31, 2020 |
|
Calculation of basic and diluted loss per share [Abstract] | |||
Net (loss) income | $ (36,260) | $ (42,921) | $ 280,429 |
Basic weighted average number of shares outstanding (in shares) | 71,335,046 | 71,159,458 | 70,850,311 |
Effect of dilutive securities (in shares) | 0 | 0 | 766,000 |
Diluted weighted average number of shares outstanding (in shares) | 71,335,046 | 71,159,458 | 71,615,843 |
Basic (loss) earnings per share (in dollars per share) | $ (0.51) | $ (0.6) | $ 3.96 |
Diluted (loss) earnings per share (in dollars per share) | $ (0.51) | $ (0.6) | $ 3.92 |
Common Stock, Summary (Details) |
12 Months Ended | ||
---|---|---|---|
Dec. 31, 2022
Vote
$ / shares
shares
|
Dec. 31, 2021
$ / shares
shares
|
May 08, 2020
$ / shares
|
|
Common Stock [Abstract] | |||
Common stock, shares authorized (in shares) | shares | 100,000,000 | 100,000,000 | |
Common stock, par value (in dollars per share) | $ 0.0001 | $ 0.0001 | |
Dividend [Abstract] | |||
Dividend declared date | May 08, 2020 | ||
Dividend record date | May 18, 2020 | ||
Cash dividend (in dollars per share) | $ 1 | ||
Dividend payable date | May 26, 2020 | ||
Common Stock [Member] | |||
Common Stock [Abstract] | |||
Number of votes entitled to each share of common stock | Vote | 1 | ||
Common stock, shares authorized (in shares) | shares | 100,000,000 | ||
Common stock, par value (in dollars per share) | $ 0.0001 |
Employee Benefit Plan (Details) - USD ($) $ in Thousands |
12 Months Ended | ||
---|---|---|---|
Dec. 31, 2022 |
Dec. 31, 2021 |
Dec. 31, 2020 |
|
Employee Benefit Plan [Abstract] | |||
Matching contribution to defined contribution plan | $ 179 | $ 145 | $ 112 |
Income Taxes, Components of Provision (Benefit) for Income Taxes (Details) - USD ($) $ in Thousands |
12 Months Ended | ||
---|---|---|---|
Dec. 31, 2022 |
Dec. 31, 2021 |
Dec. 31, 2020 |
|
Current [Abstract] | |||
Federal | $ 0 | $ 661 | $ 35,122 |
State | 3 | 35 | 950 |
Foreign | 0 | 0 | 0 |
Current income tax provision (benefit) | 3 | 696 | 36,072 |
Deferred [Abstract] | |||
Federal | 15,920 | (7,025) | (8,816) |
State | 109 | 124 | (233) |
Deferred income tax provision (benefit) | 16,029 | (6,901) | (9,049) |
Total income tax (benefit) provision | $ 16,032 | $ (6,205) | $ 27,023 |
Income Taxes, Reconciliation of Federal Statutory Income Tax Rate to Effective Income Tax Rate (Details) |
12 Months Ended | ||
---|---|---|---|
Dec. 31, 2022 |
Dec. 31, 2021 |
Dec. 31, 2020 |
|
Effective Tax Rate Reconciliation [Abstract] | |||
United States federal statutory rate | 21.00% | 21.00% | 21.00% |
State taxes, net of federal benefit | (0.55%) | (0.31%) | 0.17% |
Valuation allowance | (91.21%) | 0.00% | (12.22%) |
Stock based compensation | (9.44%) | (6.68%) | (0.01%) |
R&D Credit | 1.22% | 0.19% | (0.21%) |
Other | (0.29%) | (1.57%) | 0.06% |
Effective income tax rate | (79.27%) | 12.63% | 8.79% |
Income Taxes, Components of Deferred Tax Assets (Liabilities) (Details) - USD ($) $ in Thousands |
Dec. 31, 2022 |
Dec. 31, 2021 |
---|---|---|
Deferred tax assets [Abstract] | ||
Reserves and accruals | $ 147 | $ 58 |
Research and development credits and other credits | 430 | 92 |
Net operating loss carry forward | 11,988 | 9,519 |
Stock based compensation | 5,018 | 6,287 |
Other | 970 | 0 |
Total deferred tax assets | 18,553 | 15,956 |
Valuation allowance | (18,553) | 0 |
Deferred tax assets after valuation allowance | 0 | 15,956 |
Total deferred tax liability - depreciation and amortization | 0 | (6) |
Net deferred tax assets | $ 0 | $ 15,950 |
Income Taxes, Pre-tax Income (Losses) and Operating Loss Carryforwards (Details) $ in Thousands |
12 Months Ended |
---|---|
Dec. 31, 2022
USD ($)
| |
Income Taxes [Abstract] | |
Capitalized direct and indirect research and development costs | $ 5,140 |
Amortization of capitalized direct and indirect research and development costs | 514 |
Federal [Member] | |
Income Taxes [Abstract] | |
Net operating loss carryforwards | 57,085 |
State [Member] | |
Income Taxes [Abstract] | |
Net operating loss carryforwards | $ 108,745 |
Operating loss carryforwards, expiration date | Dec. 31, 2029 |
Income Taxes, Income Tax Uncertainties (Details) $ in Thousands |
Dec. 31, 2022
USD ($)
|
---|---|
Income Taxes [Abstract] | |
Uncertain tax positions | $ 0 |
Accrued interest and penalties | $ 0 |
Leases (Details) - USD ($) $ in Thousands |
12 Months Ended | ||
---|---|---|---|
Dec. 31, 2022 |
Dec. 31, 2021 |
Dec. 31, 2020 |
|
Building [Member] | |||
Leases [Abstract] | |||
Lease expense | $ 54 | $ 56 | $ 56 |
Office [Member] | |||
Leases [Abstract] | |||
Operating lease ROU assets | 45 | 98 | |
Lease liability | 45 | 98 | |
Lease expense | $ 54 | 56 | 56 |
Corporate Promotional and Marketing Facility [Member] | |||
Leases [Abstract] | |||
Lease extension period | 1 year | ||
Operating lease ROU assets | $ 648 | 948 | |
Lease expense | $ 300 | $ 300 | $ 356 |
Subsequent Event (Details) - $ / shares |
12 Months Ended | ||
---|---|---|---|
Mar. 30, 2023 |
Dec. 31, 2022 |
May 08, 2020 |
|
Subsequent Event [Abstract] | |||
Dividend declared date | May 08, 2020 | ||
Cash dividend (in dollars per share) | $ 1 | ||
Dividend payable date | May 26, 2020 | ||
Dividend record date | May 18, 2020 | ||
Subsequent Event [Member] | |||
Subsequent Event [Abstract] | |||
Dividend declared date | Mar. 30, 2023 | ||
Cash dividend (in dollars per share) | $ 1 | ||
Dividend payable date | Apr. 17, 2023 | ||
Dividend record date | Apr. 10, 2023 |
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