VirnetX(VHC) - 2019 Q2 - Quarterly Report

PART I — FINANCIAL INFORMATION This section presents VirnetX Holding Corporation's unaudited condensed consolidated financial statements and management's discussion and analysis for the periods ended June 30, 2019 Item 1 — Condensed Consolidated Financial Statements This section provides VirnetX's unaudited condensed consolidated financial statements and related notes for the periods ended June 30, 2019 Condensed Consolidated Balance Sheets Condensed Consolidated Balance Sheet Highlights (in thousands) | Metric | June 30, 2019 (unaudited) | December 31, 2018 | | :--------------------------------- | :------------------------ | :------------------ | | Cash and cash equivalents | $4,155 | $7,611 | | Investments available for sale | $2,772 | $1,803 | | Total current assets | $7,389 | $10,138 | | Total assets | $9,226 | $11,751 | | Total current liabilities | $849 | $1,863 | | Total stockholders' equity | $8,377 | $9,888 | | Total liabilities and stockholders' equity | $9,226 | $11,751 | Condensed Consolidated Statements of Operations Condensed Consolidated Statements of Operations Highlights (in thousands, except per share amounts) | Metric | Three Months Ended June 30, 2019 | Three Months Ended June 30, 2018 | Six Months Ended June 30, 2019 | Six Months Ended June 30, 2018 | | :--------------------------------- | :------------------------------- | :------------------------------- | :----------------------------- | :----------------------------- | | Revenue | $38 | $16 | $46 | $22 | | Total operating expense | $4,590 | $6,478 | $10,231 | $14,092 | | Loss from operations | $(4,552) | $(6,462) | $(10,185) | $(14,070) | | Net loss | $(4,130) | $(6,450) | $(9,738) | $(14,055) | | Basic and diluted loss per share | $(0.06) | $(0.10) | $(0.14) | $(0.23) | Condensed Consolidated Statements of Comprehensive Loss Condensed Consolidated Statements of Comprehensive Loss Highlights (in thousands) | Metric | Three Months Ended June 30, 2019 | Three Months Ended June 30, 2018 | Six Months Ended June 30, 2019 | Six Months Ended June 30, 2018 | | :--------------------------------- | :------------------------------- | :------------------------------- | :----------------------------- | :----------------------------- | | Net loss | $(4,130) | $(6,450) | $(9,738) | $(14,055) | | Total other comprehensive income (loss) | $0 | $(1) | $1 | $0 | | Comprehensive loss | $(4,130) | $(6,451) | $(9,737) | $(14,055) | Condensed Consolidated Statements of Stockholders' Equity Condensed Consolidated Statements of Stockholders' Equity Highlights (in thousands) | Metric | December 31, 2018 | March 31, 2019 | June 30, 2019 | | :--------------------------------- | :------------------ | :------------- | :------------ | | Common Stock (shares) | 66,879,847 | 68,104,001 | 68,754,547 | | Additional Paid-in Capital | $208,317 | $212,766 | $216,543 | | Accumulated Deficit | $(198,422) | $(204,030) | $(208,160) | | Total Stockholders' Equity | $9,888 | $8,730 | $8,377 | - During the six months ended June 30, 2019, the company issued 663,816 new shares from option exercises and 182,618 shares from vested RSUs[59] Condensed Consolidated Statements of Cash Flows Condensed Consolidated Statements of Cash Flows Highlights (in thousands) | Metric | Six Months Ended June 30, 2019 | Six Months Ended June 30, 2018 | | :--------------------------------- | :----------------------------- | :----------------------------- | | Net cash used in operating activities | $(8,954) | $(11,484) | | Net cash (used in) provided by investing activities | $(968) | $711 | | Net cash provided by financing activities | $6,466 | $11,606 | | Net change in cash and cash equivalents | $(3,456) | $833 | | Cash and cash equivalents, end of period | $4,155 | $3,968 | Notes to Condensed Consolidated Financial Statements Note 1 — Business Description and Basis of Presentation - VirnetX Holding Corporation commercializes a portfolio of patents, licensing GABRIEL Connection Technology™ to OEMs for IP-telephony, mobility, fixed-mobile convergence, and unified communications markets[22] - The company owns approximately 185 total patents and pending applications (75 U.S., 110 foreign), primarily focused on securing real-time internet communications and related services like secure domain name registry[23] - Patents also apply to device operating systems and network security for Cloud services, M2M, Smart City, Connected Car, and Connected Home, with U.S. and foreign patents expiring between 2019 and 2024[23] Note 2 — Summary of Significant Accounting Policies - The unaudited interim financial statements are prepared in accordance with U.S. GAAP and include normal recurring adjustments[24] - Revenue from patent licensing is generally recognized at a point in time when patent rights are transferred, while hosting arrangements recognize revenue over time[32] - The company adopted ASU 2016-02 (Leases) on January 1, 2019, recognizing ROU assets and lease liabilities on the balance sheet, with no impact on consolidated statements of operations or cash flow[43] Note 3 - Income Taxes Income Tax Benefit (Expense) (in thousands) | Period | Income Tax Benefit (Expense) | | :----------------------------- | :--------------------------- | | Three months ended June 30, 2019 | $395 | | Six months ended June 30, 2019 | $393 | | Three months ended June 30, 2018 | $0 | | Six months ended June 30, 2018 | $(5) | - The income tax benefit in Q2 and YTD 2019 was due to the release of a state reserve as the statute of limitation expired[44] - The company has federal and state net operating loss (NOL) carryforwards of approximately $124 million and $108 million, respectively, expiring beginning in 2027 and 2028[46] Note 4 — Commitments and Related Party Transactions - The company leases its offices under an operating lease expiring in October 2019[50] Aircraft Rental Fees and Reimbursements to K2 Investment Fund LLC (in thousands) | Period | 2019 | 2018 | | :----------------------------- | :--- | :--- | | Three months ended June 30 | $326 | $75 | | Six months ended June 30 | $885 | $683 | - The aircraft service agreement is with K2 Investment Fund LLC, managed by the company's CEO and CAO, at a rate of $8 per flight hour with no minimum usage[51] Note 5 — Stock-Based Compensation - The 2013 Equity Incentive Plan has 16,624,469 shares reserved, with 1,128,903 shares remaining available for grant as of June 30, 2019[52] Stock Options Granted and RSU Information | Metric | Three Months Ended June 30, 2019 | Three Months Ended June 30, 2018 | Six Months Ended June 30, 2019 | Six Months Ended June 30, 2018 | | :--------------------------------- | :------------------------------- | :------------------------------- | :----------------------------- | :----------------------------- | | Options granted (shares) | 345,000 | 340,000 | 345,000 | 1,010,000 | | Weighted average grant date fair value (options) | $4.63 | $2.31 | $4.63 | $2.52 | | RSUs granted | 229,996 | 226,663 | 229,996 | 246,663 | | Weighted average grant date fair value (RSUs) | $6.06 | $3.19 | $6.06 | $3.28 | Stock-Based Compensation Expense (in thousands) | Expense Category | Three Months Ended June 30, 2019 | Six Months Ended June 30, 2019 | Three Months Ended June 30, 2018 | Six Months Ended June 30, 2018 | | :------------------------------- | :------------------------------- | :----------------------------- | :------------------------------- | :----------------------------- | | General and administrative | $498 | $872 | $467 | $855 | | Research and development | $430 | $841 | $655 | $1,154 | - As of June 30, 2019, unrecognized stock-based compensation expense was $6.284 million for options (amortized over ~2.50 years) and $2.396 million for RSUs (amortized over ~2.84 years)[59] Note 6 — Equity - The company has a $100 million universal shelf registration (S-3, effective Aug 16, 2018) and an at-the-market (ATM) equity offering agreement for up to $50 million with Cowen & Company, LLC[60] - As of June 30, 2019, $31.584 million remained available under the ATM agreement[61] ATM Offering Sales (Six Months Ended June 30, 2019) | Metric | Amount | | :----------------------------- | :----- | | Shares sold | 1,028,266 | | Average sales price per share | $5.71 | | Aggregate proceeds | $5,873 | | Sales commissions, fees, costs | $176 | Note 7 — Litigation - The company is involved in multiple intellectual property infringement lawsuits in the USDC and USCAFC, primarily against Apple and Cisco[65] - In 'Apple I' litigation, the USCAFC affirmed the District Court Judgment of $439.7 million in damages against Apple, and subsequently denied Apple's request for rehearing on August 1, 2019[69][70][76] - In 'Apple II' litigation, the USDC entered a Final Judgment of $595.9 million against Apple, which Apple has appealed to the USCAFC (Case No. 19-1050)[71] - In 'VirnetX Inc. v. The Mangrove Partners' (USCAFC Case 17-1368), the USCAFC vacated and remanded PTAB's invalidity findings for two patents (6,502,135 and 7,490,151), agreeing with VirnetX that PTAB misconstrued claims and lacked substantial evidence[73][74] - In 'VirnetX Inc. v. Apple Inc., Cisco Systems, Inc.' (USCAFC Case 17-1591), the USCAFC ruled on August 1, 2019, that PTAB could not maintain two reexaminations (initiated by Apple) for claims with prior federal court 'final decisions' on patent validity, instructing PTAB to terminate those proceedings for specific claims of patents '504 and '211[77][79] - In 'VirnetX Inc. v. Cisco Systems, Inc.' (USCAFC Case 18-1751), the USCAFC vacated PTAB's invalidity findings for claims 5, 12, and 13 of patent 7,418,504 and remanded for further proceedings, while affirming invalidity for remaining claims[84][85] Note 8 — Leases - The company adopted ASU 2016-02 (Leases) on January 1, 2019, reclassifying $385 thousand of prepaid lease payments to non-current assets and recording a ROU asset and lease liability of $45 thousand for the office lease[93] Lease Expense (in thousands) | Period | Lease Expense | | :----------------------------- | :------------ | | Three months ended June 30, 2019 | $14 | | Six months ended June 30, 2019 | $28 | Note 9 — Subsequent Events - Between July 1, 2019, and July 3, 2019, the company sold 191,342 shares of common stock under the ATM offering, generating $1.188 million in aggregate proceeds at an average price of $6.21 per share[94] Item 2 — Management's Discussion and Analysis of Financial Condition and Results of Operations This section analyzes VirnetX's financial condition and operational results, including revenue, expenses, and liquidity, for the periods ended June 30, 2019 Company Overview - VirnetX is an Internet security software and technology company with patented technology for secure communications, including 5G and 4G LTE security, and solutions like Secure Domain Name Registry and GABRIEL Connection Technology™[95] - The company's GABRIEL Secure Communication Platform™ and GABRIEL Collaboration Suite™ offer secure, private communication without user data access, with over 80 small and medium businesses having deployed them[96] - VirnetX is actively recruiting partners in healthcare, finance, and government, and has submitted a declaration to 3GPP for licensing essential security patents under FRAND terms for 5G and 4G/LTE Advanced deployments[97][99] - The company's business model relies on licensing its patent portfolio, technology, and software, expecting the majority of future revenue from license fees and royalties[105] Results of Operations Revenue (in thousands) | Period | 2019 | 2018 | Change (YoY) | | :----------------------------- | :--- | :--- | :----------- | | Three months ended June 30 | $38 | $16 | +$22 | | Six months ended June 30 | $46 | $22 | +$24 | Operating Expenses (in thousands) | Expense Category | Three Months Ended June 30, 2019 | Three Months Ended June 30, 2018 | Change (YoY) | Six Months Ended June 30, 2019 | Six Months Ended June 30, 2018 | Change (YoY) | | :------------------------------- | :------------------------------- | :------------------------------- | :----------- | :----------------------------- | :----------------------------- | :----------- | | Research and development | $986 | $1,186 | $(200) | $1,921 | $2,191 | $(270) | | Selling, general and administrative | $3,604 | $5,292 | $(1,688) | $8,310 | $11,901 | $(3,591) | | Total operating expense | $4,590 | $6,478 | $(1,888) | $10,231 | $14,092 | $(3,861) | - The decrease in selling, general and administrative expenses was primarily due to a $4.194 million decrease in legal fees associated with patent infringement actions for the six months ended June 30, 2019[114] Net Loss (in thousands) | Period | 2019 | 2018 | Change (YoY) | | :----------------------------- | :----- | :----- | :----------- | | Three months ended June 30 | $(4,130) | $(6,450) | $(2,320) | | Six months ended June 30 | $(9,738) | $(14,055)| $(4,317) | - The reduction in net loss was primarily driven by decreased legal fees related to patent infringement actions[116] Liquidity and Capital Resources Cash and Investments (in thousands) | Metric | June 30, 2019 | December 31, 2018 | | :----------------------------- | :------------ | :---------------- | | Cash and cash equivalents | $4,155 | $7,611 | | Short-term investments | $2,772 | $1,803 | | Working capital | $6,540 | $8,275 | - The decrease in cash and investments was primarily due to operating losses incurred during the six months ended June 30, 2019[117] - The company expects current cash, investments, and proceeds from the ATM offering to fund operations, including legal expenses, for the foreseeable future[118] - Future revenue is expected to primarily come from license fees and royalties from its patent portfolio, technology, software, and secure domain name registry[118] - During the six months ended June 30, 2019, the company sold 1,028,266 shares under the ATM, generating $5.873 million in proceeds[121] Item 3 — Quantitative and Qualitative Disclosures About Market Risk This section discusses the company's exposure to market risks, primarily interest rate risk on its investments and the potential volatility of its common stock price - The company invests excess cash primarily in highly liquid instruments including money market, mutual funds, and U.S. government and U.S. agency securities[130] - A 100 basis point adverse change in short-term interest rates is considered to have an immaterial impact on the fair value of marketable securities, which generally mature within one year[132] - The fair market value of the company's stock price could substantially increase or decrease in the near term, potentially having a material impact on financial statements[133] Item 4 — Controls and Procedures This section confirms the effectiveness of the company's disclosure controls and procedures as of June 30, 2019, and reports no material changes in internal control over financial reporting during the quarter - Management, including the CEO and CFO, concluded that disclosure controls and procedures were effective as of June 30, 2019[136] - There were no changes in internal control over financial reporting during the quarter ended June 30, 2019, that have materially affected, or are reasonably likely to materially affect, internal control over financial reporting[137] PART II — OTHER INFORMATION This section provides additional information, including legal proceedings, risk factors, exhibits, and required signatures Item 1 — Legal Proceedings This section details VirnetX's ongoing intellectual property infringement lawsuits, including updates on key cases against Apple and Cisco - The company is involved in multiple intellectual property infringement lawsuits pending in the United States District Court for the Eastern District of Texas (USDC) and the United States Court of Appeals for the Federal Circuit (USCAFC)[139] - Commencing and defending lawsuits is expensive and time-consuming, and there is no assurance of prevailing on potential claims or avoiding counterclaims[163] - The continuation of these litigations is distracting to management and expensive, and this distraction and expense may continue[6] Item 1A — Risk Factors This section outlines various risks and uncertainties that could adversely affect VirnetX's business, financial condition, and stock price Risks Related to Our Business and Our Financial Reporting - Ongoing patent litigation is time-consuming, costly, and uncertain, with no assurance of favorable outcomes, potentially leading to losses or exhaustion of financial resources[167] - The company may need to raise additional capital, which could be dilutive to existing stockholders or unavailable on acceptable terms[168] - There is no assurance of successfully capitalizing on market opportunities for its licensing strategy or patent portfolio, with factors like challenges to patent validity and competition posing risks[169][172][175] - The business is subject to rapid changes in regulation, law, and consumer preferences, including potential new regulations for VoIP services and data privacy laws like GDPR and CCPA, which could increase costs and limit product adoption[174][185][187] - Security breaches or incidents could expose the company to liability, harm its reputation, and require substantial financial resources to rectify[181][184] - The company expects long and unpredictable sales cycles due to factors like the need to educate customers, budgetary constraints, and internal review processes[189][195] - Limited technical resources and an early stage in commercialization of the GABRIEL Collaboration Suite™ may hinder rapid adaptation to customer requirements or new feature development[194] - The departure of key personnel, particularly CEO Kendall Larsen, could compromise the ability to execute the strategic plan[206] - Operating as a public company incurs significant increased costs and requires substantial management time for compliance with regulations like Sarbanes-Oxley Act[209] Risks Related to Our Common Stock - The market price of the common stock has experienced significant fluctuations and is expected to remain volatile due to litigation developments, operating results, market conditions, and potential short selling activity[213][214][215] - The company does not currently pay dividends, requiring stockholders to rely on stock appreciation for gains, which is not assured[219] - Exercise of outstanding stock options and RSUs, and issuance of new shares, will dilute current stockholders' voting power and increase shares eligible for resale, potentially negatively impacting the stock price[220] - Concentrated ownership by executive officers and directors (approximately 14.7% as of June 30, 2019) may limit other stockholders' influence on decisions[224] - Protective provisions in the company's certificate of incorporation and bylaws, such as a staggered Board and blank check preferred stock, could delay or prevent a third party from acquiring control[225][227][229] Item 6 — Exhibits This section lists the documents filed as exhibits to the Quarterly Report on Form 10-Q, including certifications required by the Sarbanes-Oxley Act and interactive data files - Exhibits include certifications from the CEO and CFO pursuant to Exchange Act Rules 13a-14(a) and 15d-14(a) (Section 302) and 18 U.S.C. Section 1350 (Section 906) of the Sarbanes-Oxley Act of 2002[234] - Interactive Data Files (Exhibit 101) are also included[234] SIGNATURES This section contains the required signatures for the Quarterly Report on Form 10-Q, duly authorized by the registrant's Chief Executive Officer and Chief Financial Officer - The report is signed by Kendall Larsen, Chief Executive Officer, and Richard H. Nance, Chief Financial Officer, on August 9, 2019[233] EXHIBIT INDEX This section provides a detailed index of all exhibits accompanying the Form 10-Q, specifying their exhibit numbers and descriptions - The exhibit index lists certifications (31.1, 31.2, 32.1, 32.2) and Interactive Data Files (101)[234]