As filed with the Securities and Exchange Commission on August 14, 2024
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
VirnetX Holding Corporation
(Exact name of Registrant as specified in its charter)
|
Delaware
|
|
77-0390628
|
|
(State or other jurisdiction of
incorporation or organization)
|
|
(I.R.S. Employer
Identification No.)
|
308 Dorla Court, Suite 206
Zephyr Cove, Nevada 89448
(Address, including zip code, of Registrant’s principal executive offices)
Amended and Restated 2013 Equity Incentive Plan
(Full title of the plan)
Kendall Larsen
Chief Executive Officer
VirnetX Holding Corporation
308 Dorla Court, Suite 206
Zephyr Cove, Nevada, 89448
(775) 548-1785
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Katharine A. Martin, Esq.
Wilson Sonsini Goodrich & Rosati, P.C.
650 Page Mill Road
Palo Alto, California 94304
(650) 493-9300
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See definitions of “large
accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| |
|
Large Accelerated filer
|
|
☐ |
|
Accelerated filer
|
|
☐ |
| |
|
|
|
|
Non-Accelerated filer
|
|
☒ |
|
Smaller reporting company
|
|
☒ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to
Section 7(a)(2)(B) of the Securities Act. ☐
PART I
INFORMATION REQUIRED IN THE PROSPECTUS
The information specified in Item 1 and Item 2 of Part I of Form S-8 is omitted from this Registration Statement in accordance with the provisions of Rule 428 under the Securities Act of 1933, as
amended (the “Securities Act”) and the introductory note to Part I of Form S-8. The documents containing the information specified in Item 1 and Item 2 of Part I of Form S-8 will be delivered to the participants in the plan covered by this
Registration Statement as specified by Rule 428(b)(1) under the Securities Act.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
|
Item 3.
|
Incorporation of Documents by Reference.
|
The Registrant hereby incorporates by reference into this Registration Statement the following documents previously filed with the Securities and Exchange Commission (the “Commission”):
| |
(a)
|
The Registrant’s Annual Report on Form
10-K for the fiscal year ended December 31, 2023 filed with the Commission on March 15, 2024, and as amended by Amendment No. 1 to the Annual Report on Form 10-K/A filed with the Commission on April 18, 2024, pursuant to Section 13 of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”);
|
| |
|
The Registrant’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2024, filed with the Commission on May 15, 2024, and the Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2024, filed with the Commission on August 14, 2024, pursuant to
Section 13 of the Exchange Act;
|
| |
|
All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the Registrant’s Annual Report on Form 10-K referred
to in (a) above (other than the portions of these documents deemed to have been furnished and not filed in accordance with the rules of the Commission); and
|
| |
|
The description of the Registrant’s shares contained in the Registrant’s Registration Statement on Form 8-A (File No. 001-33852) filed with the Commission on July 17, 2020, and including any
amendments or reports filed for the purpose of updating such description.
|
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act on or after the filing date of this Registration Statement and prior to the filing of a
post-effective amendment to this Registration Statement that indicates that all securities offered hereby have been sold or that de-registers all securities then remaining unsold shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing such documents, provided, however, that documents or information deemed to have been furnished and not filed in accordance with the rules of the
Commission shall not be deemed incorporated by reference into this Registration Statement. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes
of this Registration Statement to the extent that a statement contained in any subsequently filed document which also is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
| Item 4. |
Description of Securities.
|
| Item 5. |
Interests of Named Experts and Counsel.
|
| Item 6. |
Indemnification of Directors and Officers.
|
Section 145 of the Delaware General Corporation Law authorizes a corporation’s board of directors to grant, and authorizes a court to award, indemnity to officers, directors and other corporate
agents.
As permitted by Section 102(b)(7) of the Delaware General Corporation Law, the Registrant’s amended and restated certificate of incorporation includes provisions that eliminate the personal
liability of its directors and officers for monetary damages for breach of their fiduciary duty as directors and officers.
In addition, as permitted by Section 145 of the Delaware General Corporation Law, the amended and restated certificate of incorporation and amended and restated bylaws of the Registrant provide
that:
|
• |
The Registrant shall indemnify its directors and officers for serving the Registrant in those capacities or for serving other business enterprises at the Registrant’s request, to the fullest extent permitted by Delaware law. Delaware law
provides that a corporation may indemnify such person if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Registrant and, with respect to any criminal
proceeding, had no reasonable cause to believe such person’s conduct was unlawful.
|
|
• |
The Registrant may, in its discretion, indemnify employees and agents in those circumstances where indemnification is permitted by applicable law.
|
|
• |
The Registrant is required to advance expenses, as incurred, to its directors and officers in connection with defending a proceeding, except that such director or officer shall undertake to repay such advances if it is ultimately
determined that such person is not entitled to indemnification.
|
The Registrant has entered into separate indemnification agreements with each of its directors and officers that provide the maximum indemnity allowed to directors and executive officers by
Section 145 of the Delaware General Corporation Law and also to provide for certain additional procedural protections. The Registrant also maintains directors and officers insurance to insure such persons against certain liabilities.
These indemnification provisions and the indemnification agreements entered into between the Registrant and its officers and directors may be sufficiently broad to permit indemnification of the
Registrant’s officers and directors for liabilities (including reimbursement of expenses incurred) arising under the Securities Act.
| Item 7. |
Exemption from Registration Claimed.
|
| |
|
|
|
Incorporated by Reference
|
|
|
|
Exhibit
No.
|
|
Exhibit
|
|
Form
|
|
File No.
|
|
Filing
Date
|
|
Exhibit
No.
|
|
Filed
Herewith
|
|
4.1
|
|
|
|
S-3
|
|
333-226413
|
|
07/30/2018
|
|
4.1
|
|
|
|
5.1
|
|
|
|
|
|
|
|
|
|
|
|
X
|
|
23.1
|
|
|
|
|
|
|
|
|
|
|
|
X
|
|
23.2
|
|
|
|
|
|
|
|
|
|
|
|
X
|
|
24.1
|
|
|
|
|
|
|
|
|
|
|
|
X
|
|
99.1*
|
|
|
|
8-K
|
|
001-33852
|
|
06/18/2024
|
|
10.1
|
|
|
|
99.2*
|
|
|
|
10-K
|
|
001-33852
|
|
03/02/2015
|
|
10.6
|
|
|
|
99.3*
|
|
|
|
10-K
|
|
001-33852
|
|
03/02/2015
|
|
10.7
|
|
|
|
99.4*
|
|
|
|
10-Q
|
|
001-33852
|
|
08/11/2023
|
|
10.2
|
|
|
|
107
|
|
|
|
|
X
|
| |
*
|
Indicates management contract or compensatory plan, contact or arrangement.
|
| (a) |
The undersigned Registrant hereby undertakes:
|
|
(1) |
To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
|
|
(i) |
To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
|
|
(ii) |
To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Filing Fee Table” table in the effective Registration Statement; and
|
|
(iii) |
To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement;
|
Provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.
|
(2) |
For the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof.
|
|
(3) |
It will remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
|
| (b) |
The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
|
| (c) |
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
|
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has
duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Zephyr Cove, State of Nevada, on August 14, 2024.
| |
VIRNETX HOLDING CORPORATION
|
| |
|
| |
By:
|
/s/ Kendall Larsen
|
|
| |
|
Kendall Larsen
|
| |
|
Chief Executive Officer
|
| |
|
|
| |
By:
|
/s/ Katherine Allanson
|
|
| |
|
Katherine Allanson
|
| |
|
Chief Financial Officer
|
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes
and appoints Kendall Larsen, Chief Executive Officer, his or her attorney-in-fact and agent, with the power of substitution and resubstitution, for each of them and in their name, place or stead, in any and all capacities, to sign any amendments
to this Registration Statement on Form S-8, and to file such amendments, together with exhibits and other documents in connection therewith, with the Securities and Exchange Commission, granting to each attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully as he or she might or could do in person, and ratifying and confirming all that the attorney-in-fact and agent, or his
or her substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.
|
Signature
|
|
Title
|
|
Date
|
| |
|
|
|
|
|
/s/ Kendall Larsen
|
|
Chief Executive Officer, President and Chairperson of the Board
(Principal Executive Officer)
|
|
August 14, 2024
|
|
Kendall Larsen
|
|
|
|
|
| |
|
|
|
|
|
/s/ Katherine Allanson
|
|
Chief Financial Officer
(Principal Financial Officer and Principal Accounting Officer)
|
|
August 14, 2024
|
|
Katherine Allanson
|
|
|
|
|
| |
|
|
|
|
|
/s/ Gary W. Feiner
|
|
Director
|
|
August 14, 2024
|
|
Gary W. Feiner
|
|
|
|
|
| |
|
|
|
|
|
/s/ Michael F. Angelo
|
|
Director
|
|
August 14, 2024
|
|
Michael F. Angelo
|
|
|
|
|
| |
|
|
|
|
|
/s/ Heidy Chow
|
|
Director
|
|
August 14, 2024
|
|
Heidy Chow
|
|
|
|
|
| |
|
|
|
|
|
/s/ Thomas M. O’Brien
|
|
Director
|
|
August 14, 2024
|
|
Thomas M. O’Brien
|
|
|
|
|
Exhibit 5.1
|
|
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304-1050
o: 650.493.9300
f: 650.493.6811
|
August 14, 2024
VirnetX Holding Corporation
308 Dorla Court, Suite 206
Zephyr Cove, Nevada 89448
|
Re: |
Registration Statement on Form S-8
|
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 (the “Registration Statement”) to be filed by VirnetX Holding Corporation, a Delaware corporation, with the Securities and Exchange Commission
on or about the date hereof, in connection with the registration under the Securities Act of 1933, as amended, of 1,000,000 shares of common stock, par value $0.0001 per share (the “Shares”), reserved for issuance under the Amended and Restated 2013
Equity Incentive Plan, as amended from time to time (the “Plan”).
On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares, when issued and sold in the manner referred to in the Plan and pursuant to the agreements that accompany
the Plan, will be legally and validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration Statement and further consent to the use of our name wherever appearing in the Registration Statement and any amendments
thereto.
| |
Very truly yours,
|
| |
|
| |
WILSON SONSINI GOODRICH & ROSATI
|
| |
Professional Corporation
|
| |
|
| |
/s/ Wilson Sonsini Goodrich & Rosati, P.C.
|
