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Item 9A. Controls and Procedures

2024-03-15 compared with 2023-03-31 · 76 added, 77 removed, 105 unchanged (59% of the section changed)

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Evaluation of Disclosure Controls and Procedures

Under the supervision and with the participation of our management, including our Chief Executive Officer and Chief Financial Officer, we conducted an evaluation of the effectiveness of the

design and operation of our disclosure controls and procedures, as defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934, as amended, December 31, 2022.

Under the supervision and with the participation of our management, including our Chief Executive Officer and Chief Financial Officer, we conducted an evaluation of the effectiveness of the design and

operation of our disclosure controls and procedures, as defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934, as amended, December 31, 2023.

The purpose of this evaluation was to determine whether as of December 31, 2023 our disclosure controls and procedures were effective to provide reasonable assurance that the information we are

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Changes in Internal Control Over Financial Reporting

We modified supervisory review procedures over the tax professionals who perform the accounting and reporting of deferred taxes, to include detailed discussions of current operations and changes in accounting

standards and tax law that could affect our calculations, and detailed review including walkthrough of infrequent transactions and complex matters affecting deferred tax calculations.

We have tested these procedures and believe the enhanced

control is operating effectively.

Additionally, our accounting professionals participated in deferred tax accounting training to further enhance our in-house technical abilities.

There were no other

changes in our internal controls over financial reporting (as such term is defined in rules 13a-15(f) under the Securities Exchange Act of 1934, as amended) during the fiscal year ended December 31, 2022, that have materially affected, or are

reasonably likely to materially affect, our internal controls over financial reporting.

We have not experienced any material impact to our internal controls over financial reporting despite the fact that most of our employees are working remotely;

we are continually monitoring and assessing the impact

on our internal controls to minimize the impact on their design and operating effectiveness.

There were no changes in our internal controls over financial reporting (as such term is defined in rules 13a-15(f) under the Securities Exchange Act of 1934, as amended) during the fiscal year ended

December 31, 2023, that have materially affected, or are reasonably likely to materially affect, our internal controls over financial reporting.

Management’s Report on Internal Control Over Financial Reporting

Our management is responsible for establishing and maintaining adequate internal control over financial reporting for the Company.

Internal control over financial reporting is a process to

provide reasonable assurance regarding the reliability of our financial reporting for external purposes in accordance with accounting principles generally accepted in the United States of America.

Internal control over financial reporting

includes maintaining records that in reasonable detail accurately and fairly reflect our transactions;

Internal control over financial reporting is a process to provide

reasonable assurance regarding the reliability of our financial reporting for external purposes in accordance with accounting principles generally accepted in the United States of America.

Internal control over financial reporting includes

maintaining records that in reasonable detail accurately and fairly reflect our transactions;

providing reasonable assurance that transactions are recorded as necessary for preparation of our financial statements;

providing reasonable

assurance that receipts and expenditures of Company assets are made in accordance with management authorization;

and providing reasonable assurance that unauthorized acquisition, use or disposition of Company assets that could have a material

effect on our financial statements would be prevented or detected on a timely basis.

Because of its inherent limitations, internal control over financial reporting is not intended to provide absolute assurance that a misstatement of our financial

statements would be prevented or detected.

Management conducted an evaluation of the effectiveness of our internal control over financial reporting based on the framework in Internal Control –

Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission.

Based on this evaluation, management concluded that the Company’s internal control over financial reporting was effective as of

December 31, 2022.

Changes made in our internal control over financial reporting during the period ended December 31, 2022 are discussed above;

no other change were made to our internal control over financial reporting during the period, that

have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.

providing reasonable assurance

that receipts and expenditures of Company assets are made in accordance with management authorization;

and providing reasonable assurance that unauthorized acquisition, use or disposition of Company assets that could have a material effect on our

financial statements would be prevented or detected on a timely basis.

Because of its inherent limitations, internal control over financial reporting is not intended to provide absolute assurance that a misstatement of our financial statements

would be prevented or detected.

Management conducted an evaluation of the effectiveness of our internal control over financial reporting based on the framework in Internal Control – Integrated

Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission.

Based on this evaluation, management concluded that the Company’s internal control over financial reporting was effective as of December 31,

There were no changes in our internal control over financial reporting during the period ended December 31, 2023, that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.

Other Information

Securities Trading Plans of Directors and Executive Officers.

During the three months ended December 31, 2023, the Company did not adopt , modify or terminate and no directors or officers, as defined in Rule 16a-1(f), adopted , modified or terminated a "Rule 10b5-1 trading arrangement" or a

"non-Rule 10b5-1 trading arrangement," each as defined in Regulation SK Item 408.

Disclosure Regarding Foreign Jurisdictions that Prevent Inspections

Directors, Executive Officers and Corporate Governance

The information required by this item will be contained in our definitive proxy statement to be filed with the SEC in connection with our 2022 Annual Meeting of Stockholders (the “Proxy

Statement”), which is expected to be filed not later than 120 days after the end of our fiscal year ended December 31, 2022 and is incorporated in this report by reference.

The information required by this item will be contained in our definitive proxy statement to be filed with the SEC in connection with our 2024 Annual Meeting of Stockholders (the “Proxy Statement”),

which is expected to be filed not later than 120 days after the end of our fiscal year ended December 31, 2023 and is incorporated in this report by reference.

Executive Compensation

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Securities Authorized for Issuance Under the Equity Compensation Plans

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.

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, our Board of Directors 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.

As of December 31, 2022, there were 1,563,345 shares available to be granted under the Plan.

We had 6,816,025 and 6,397,437 options outstanding as of December 31, 2022 and December 31, 2021,

respectively, with an average exercise price of $5.33 and $6.99, respectively.

We had 552,105 and 509,155 RSUs outstanding as of December 31, 2022 and December 31, 2021, respectively, with a weighted average grant price of $3.65 and $5.38,

respectively.

Our Amended and Restated Equity Incentive Plan (the “A&R Plan”) was approved by our shareholders in June 2023.

Our prior plan expired March 29, 2023;

no further awards will be made under the prior

plan, and the A&R Plan will govern awards granted under the prior plan.

The A&R Plan allows us to grant stock options, restricted stock units (“RSUs”) and restricted stock.

Options granted under the A&R Plan are granted with an exercise

price equal to the fair value of the of our stock on the date of grant.

RSUs and restricted stock are granted at the fair value of our stock on the date of grant.

The fair value of options, RSUs and restricted stock are expensed over the vesting

All awards are subject to forfeiture if service terminates prior to the shares vesting.

At December 31, 2023, there were 225,778 shares available for grant under the A&R Plan.

Plan Category

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Equity compensation plans not approved by security holders

On June 3, 2022, the Compensation Committee of our Board of Directors (the “Compensation Committee”) granted 37,500 stock options and 24,999 RSUs to members of our Board of Directors.

7, 2022, the Compensation Committee granted 763,504 stock options and 233,364 RSUs to our employees.

During 2023, we granted 1,875 stock options and 1,251 RSUs to members of our Board of Directors and 36,927 restricted stock awards to our employees respectively.

Certain Relationships and Related Transactions, and Director Independence

The information required by this item will be set forth in the Proxy Statement and is incorporated herein by reference.

Principal Accountant Fees and Services

Principal Accounting Fees and Services

The information required by this item will be set forth in the Proxy Statement and is incorporated herein by reference.

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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.

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.

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Filed Herewith

and Restated Certificate of Incorporation of the Company, as amended .

Certificate of Amendment to the Amended and Restated

Certificate of Incorporation of the Company .

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2013 Equity Incentive Plan, as amended .

Form of Stock Option Agreement – 2013 Equity Incentive Plan.

Form of Restricted Stock Unit Agreement – 2013 Equity Incentive Plan.

Patent License and Assignment Agreement by and between the Company and Leidos, Inc.

(formerly Science Applications International Corporation) dated

as of August 12, 2005.

Amended and Restated 2013 Equity Incentive Plan .

Form of Stock Option Agreement – 2013 Equity Incentive Plan and Amended

and Restated 2013 Equity Incentive Plan .

Form of Restricted Stock Unit Agreement – 2013 Equity Incentive Plan and

Amended and Restated 2013 Equity Incentive Plan .

Form of Restricted Stock Agreement – Amended and Restated

2013 Equity Incentive Plan .

Patent License and Assignment Agreement by and between the Company and

(formerly Science Applications International Corporation) dated as of August 12, 2005 .

Amendment No.

1 to Patent License and Assignment Agreement by and between the Company and Leidos, Inc.

1 to Patent License and Assignment Agreement by and between

the Company and Leidos, Inc.

dated as of November 2, 2006 .

Amendment No.

2 to Patent License and Assignment Agreement by and between VirnetX, Inc.

2 to Patent License and Assignment Agreement by and

between VirnetX, Inc.

and Leidos, Inc.

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Security Agreement by and between the Company and Leidos, Inc.

dated as of August 12, 2005.

August 12, 2005 .

Assignment Agreement between the Company and Leidos, Inc.

dated as of December 21, 2006.

December 21, 2006 .

Professional Services Agreement by and between the Company and Leidos, Inc.

dated as of August 12, 2005 .

Settlement and License Agreement, by and between Microsoft Corporation and VirnetX, Inc., dated May 14, 2010.

Amended Settlement and License Agreement, by and between Microsoft Corporation and VirnetX, Inc., dated December 17, 2014.

Amended and Restated Revenue Sharing Agreement by and between the Company and Public Intelligence Technology Associates, dated October 18, 2017.

Amended and Restated Gabriel License Agreement by and between the Company and Public Intelligence Technology Associates, dated October 18, 2017.

Sales Agreement, dated August 31, 2018, by and between the Company and Cowen and Company, LLC.

Hire Letter by and between Katherine Allanson and the Company, dated as of September 1, 2021.

Settlement and License Agreement, by and between Microsoft Corporation and

VirnetX, Inc., dated May 14, 2010 .

Amended Settlement and License Agreement, by and between Microsoft

Corporation and VirnetX, Inc., dated December 17, 2014 .

Hire Letter by and between Katherine Allanson and the

Company, dated as of September 1, 2021 .

Offer Letter by and between Darl C.

McBride and the Company, dated as of December 22, 2023.

Cooperation Letter Agreement, dated March 29, 2023, among The

Radoff Family Foundation, Bradley L.

Radoff, JEC II Associates, LLC, Michael Torok and the Company .

Warrant to Purchase Shares of Common Stock of the Company

by and between the Company and Odeon Capital Group LLC, dated as of April 29, 2020 .

Outside Director Compensation Policy, as amended.

Subsidiaries of VirnetX Holding Corporation .

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Section 1350 as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.

Compensation Recovery Policy of the Company as adopted November 8, 2023.

XBRL Instance Document

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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.

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

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this Annual Report on Form 10-K to be signed on its behalf by the

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POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Kendall Larsen as his attorney-in-fact, with full power of substitution, for him in

any and all capacities, to sign any amendments to this Annual Report on Form 10-K, and to file the same, with exhibits thereto and other documents in connection therewith with the Securities and Exchange Commission, hereby ratifying and

confirming all that said attorney-in-fact, or his substitute or substitutes may do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Exchange Act of 1934, this Annual Report on Form 10-K has been signed below by the following persons on behalf of the registrant and in the

capacities indicated.

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Kendall Larsen as his attorney-in-fact, with full power of substitution, for him in any and

all capacities, to sign any amendments to this Annual Report on Form 10-K, and to file the same, with exhibits thereto and other documents in connection therewith with the Securities and Exchange Commission, hereby ratifying and confirming all that

said attorney-in-fact, or his substitute or substitutes may do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Exchange Act of 1934, this Annual Report on Form 10-K has been signed below by the following persons on behalf of the registrant and in the capacities

/s/Kendall Larsen

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Compared sentence by sentence after normalising whitespace, quotation marks, case and digits, so re-formatting and restated figures do not read as changed language. Wording changes appear as one removal and one addition. The current filing and the prior one are authoritative.

What changed 10-K

Item 9A. Controls and Procedures