exv4w2





Exhibit 4.2



UNDERWRITER’S WARRANT AGREEMENT




     Underwriter’s Warrant Agreement (the “Agreement”), dated as of January ___, 2009,
between VirnetX Holding Corporation (the “Company”) and Gilford Securities Incorporated
(the “Underwriter”).



WITNESSETH:




     WHEREAS, the Underwriter has agreed, pursuant to the underwriting agreement dated as of
January ___, 2009 between the Company and the Underwriter (the “Underwriting Agreement”),
to act as the underwriter in connection with the Company’s proposed public offering of up to
3,000,000 shares of the Company’s common stock, $0.0001 par value per share (the “Common
Stock”), and warrants to purchase (i) an aggregate of 1,500,000 shares of Common Stock at an
exercise price of $2.00 per share, (ii) an aggregate of 1,500,000 shares of Common Stock at an
exercise price of $3.00 per share and (iii) an aggregate of 1,500,000 shares of Common Stock at an
exercise price of $4.00 per share, at the public offering price of $_______ per share of Common Stock
and associated warrants (the “Public Offering”); and



     WHEREAS, the Company proposes to issue to the Underwriter and/or member firms of the Financial
Industry Regulatory Authority (“FINRA”) participating in the Public Offering and the bona
fide officers and partners thereof as permitted by Rule 2710(c)(7)(A) and (B) (the “Rule”)
of the NASD Conduct Rules (each, a “Holder,” and collectively, the “Holders”),
warrants (“Warrants”) to purchase up to 300,000 shares of Common Stock (the
“Shares”); and



     WHEREAS, the Warrants to be issued pursuant to this Agreement will be issued on the First
Closing Date (as such term is defined in the Underwriting Agreement) by the Company to the Holders
in consideration for, and as part of the compensation in connection with, the Underwriter acting as
underwriter pursuant to the Underwriting Agreement.



     NOW, THEREFORE, in consideration of the premises, the payment to the Company of $.0001 per
Warrant, the agreements set forth herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as follows:


1. Grant and Period.




     (a) The above recitals are true and correct. The Public Offering has been registered under a
Registration Statement on Form S-1 (File No. 333-153645) and declared effective by the Securities
and Exchange Commission (the “Commission”) on January ___, 2009 (the “Effective
Date”). This Agreement, relating to the purchase of the Warrants, is entered into pursuant to
the Underwriting Agreement between the Company and the Underwriter in connection with the Public
Offering.



     (b) Pursuant to the Warrants, the Holders are hereby granted the right to purchase from the
Company, at any time during the period commencing on the first anniversary of the First Closing
Date and expiring upon the fifth anniversary of the First Closing Date (the “Expiration
Time”), up to 300,000 shares of Common Stock of the Company at an initial exercise price
(subject to adjustment as provided in Section 7 hereof) of $_______ per share



 









 




(representing 120% of the public offering price per share of the Common Stock and associated
warrants in the Public Offering) (the “Exercise Price” or “Purchase Price”),
subject to the terms and conditions of this Agreement.




     (c) Except as specifically otherwise provided herein, the Shares shall bear the same terms and
conditions as such securities described under the caption “Description of Securities” in
the Registration Statement, and as designated in the Company’s Amended and Restated Certificate of
Incorporation and any amendments thereto, and the Holders shall have registration rights under the
Securities Act of 1933, as amended (the “Act”), for the Shares, as more fully described in
Section 6 of this Agreement.


2. Warrant Certificates. The warrant certificates (“Warrant Certificates”)
delivered and to be delivered pursuant to this Agreement shall be in the form set forth in the form
of Warrant Certificate, attached hereto and made a part hereof, with such appropriate insertions,
omissions, substitutions, and other variations as required or permitted by this Agreement.




3. Exercise of Warrant.




     3.1 Full Exercise.



          (a) The Holder may effect a cash exercise of the Warrants by surrendering to the Company the
Warrant Certificate, together with a Subscription in the form of Exhibit A attached
thereto, duly executed by such Holder, at any time during the period commencing on the first
anniversary of the First Closing Date and expiring upon the fifth anniversary of the First Closing
Date, at the Company’s principal office, accompanied by payment in cash or by certified or official
bank check payable to the order of the Company in the amount of the aggregate purchase price (the
“Aggregate Price”), subject to any adjustments provided for in this Agreement. The
aggregate price hereunder for each Holder shall be equal to the Exercise Price multiplied by the
number of Shares that are the subject of each Holder’s Warrant (as adjusted as hereinafter
provided).




          (b) The Holder may effect a cashless exercise of the Warrants by delivering the Warrant
Certificate to the Company together with a Subscription in the form of Exhibit B attached
thereto, duly executed by such Holder, in which case no payment of cash will be required. Upon
such cashless exercise, the number of Shares to be purchased by each Holder shall be determined by
dividing: (i) the number obtained by multiplying the number of Shares that are the subject of each
Holder’s Warrant Certificate by the amount, if any, by which the then Market Value (as hereinafter
defined) exceeds the Purchase Price; by (ii) the then per share Market Value. In no event shall
the Company be obligated to issue any fractional securities and, at the time it causes a
certificate or certificates to be issued, it shall pay the Holder in lieu of any fractional
securities or shares to which such Holder would otherwise be entitled, by Company check, in an
amount equal to such fraction multiplied by the Market Value. The “Market Value” shall be
determined on a per Share basis as of the close of the business day preceding the date of exercise,
which determination shall be made as follows: (a) if the Common Stock is listed for trading on a
national or regional stock exchange or is included on an inter-dealer quotation system, the average
closing sale price quoted on such exchange or inter-dealer quotation system which is published in
The Wall Street Journal for the 10 trading days immediately preceding the




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date of exercise, or if no trade of the Common Stock shall have been reported during such
period, the last sale price so quoted for the next day prior thereto on which a trade in the Common
Stock was so reported; or (b) if the Common Stock is not so listed, admitted to trading or
included, the average of the closing highest reported bid and lowest reported ask price as quoted
on the OTC Bulletin Board or in the “Pink Sheets” published by the National Daily Quotation Bureau
for the first day immediately preceding the date of exercise on which the Common Stock is traded.




     3.2 Partial Exercise. The Warrants may also be exercised from time to time in part by
surrendering the Warrant Certificate in the manner specified in Section 3.1 hereof, except that
with respect to a cash exercise, the Purchase Price payable shall be equal to the number of Shares
being purchased hereunder multiplied by the per Share Purchase Price, subject to any adjustments
provided for in this Agreement. Upon any such partial exercise, the Company, at its expense, will
forthwith issue to the Holder a new Warrant Certificate or Warrants of like tenor calling in the
aggregate for the number of securities (as constituted as of the date hereof) for which the Warrant
Certificate shall not have been exercised, issued in the name of the Holder or as such Holder (upon
payment by such Holder of any applicable transfer taxes) may direct.



4. Issuance of Certificates.




     (a) Upon the exercise of the Warrants, the issuance of certificates for shares of Common Stock
shall be made forthwith (and, in any event within three business days thereafter) without charge to
the Holder thereof including, without limitation, any tax which may be payable in respect of the
issuance thereof, and such certificates shall (subject to the provisions of Section 5 and Section 6
hereof) be issued in the name of, or in such names as may be directed by, the Holder thereof;
provided, however, that the Company shall not be required to pay any tax which may be payable in
respect of any transfer involved in the issuance and delivery of any such certificates in a name
other than that of the Holder and the Company shall not be required to issue or deliver such
certificates unless or until the person or persons requesting the issuance thereof shall have paid
to the Company the amount of such tax or shall have established to the satisfaction of the Company
that such tax has been paid.



     (b) The Warrant Certificates and the certificates representing the shares of Common Stock
shall be executed on behalf of the Company by manual or facsimile signature of the then present
Chairman or Vice Chairman of the Board of Directors or President or Vice President of the Company.
Warrant Certificates shall be dated the date of execution by the Company upon initial issuance,
division, exchange, substitution or transfer.


5. Restriction on Transfer of Warrants. The Holder of a Warrant Certificate, by acceptance
thereof, covenants and agrees that the Warrants may not be sold, transferred, assigned,
hypothecated or otherwise disposed of, in whole or in part, for a period of one year from the
effectiveness of the Offering, except (a) to a FINRA member firm that participated in the Public
Offering and the bona fide officers or partners thereof, (b) by operation of law, or (c) by reason
of reorganization of the Company.




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6. Registration Rights.




     6.1 Registration Under the Securities Act of 1933. The Warrants and the Shares
(collectively the “Registrable Securities”) have not been registered under the Securities
Act of 1933, as amended (the “Act”). Upon exercise, in part or in whole, of the Warrants,
certificates representing the Shares shall bear the following legend in the event there is no
current registration statement effective with the Commission at such time as to such securities:


The securities represented by this certificate may not be offered or sold except pursuant to (i) an
effective registration statement under the Securities Act of 1933, as amended, (ii) to the extent
applicable, Rule 144 under the Securities Act (or any similar rule under the Securities Act
relating to the disposition of securities), or (iii) an opinion of counsel, if such opinion shall
be reasonably satisfactory to counsel to the issuer, that an exemption from registration under the
Securities Act and applicable state securities laws is available.




     6.2 Piggyback Registration.



     (a) If, at any time commencing on the first anniversary of the First Closing Date and expiring
seven years after the First Closing Date, the Company prepares and files a post-effective amendment
to the Registration Statement, or a new Registration Statement under the Act, or files a
Notification on Form 1-A or otherwise registers securities under the Act, or files a similar
disclosure document with the Commission (each such filing, a “Registration Document”) as to
any of its securities under the Act (other than under a Registration Statement pursuant to Form S-8
or Form S-4), it will give written notice by registered mail, at least 20 days prior to the filing
of such Registration Document to the Underwriter and to all other Holders of the Registrable
Securities of its intention to do so. The Company shall include all Registrable Securities in such
Registration Documents with respect to which the Company has received written requests for
inclusion therein within 15 days of actual receipt of the Company’s notice.



     (b) No Holder of Registrable Securities may participate in any registration hereunder which is
underwritten unless such holder completes and executes all documents as are reasonable and
customary in such offerings.



     (c) The Company shall have the right at any time after it shall have given written notice
pursuant to this Section 6.2 (irrespective of whether a written request for inclusion of any
Registration Securities shall have been made) to elect not to file any such Registration Document,
or to withdraw the same after the filing but prior to the effective date thereof.



     6.3 Demand Registration.



          (a) Expenses to be Paid by the Company. At any time commencing one year after the
First Closing Date until the Expiration Time, Holders of Registrable Securities representing more
than 50% of such securities at that time outstanding (a “Majority of Holders”) shall have
the right (which right is in addition to the registration rights under Section 6.2 and Section
6.3(b) hereof), exercisable by written notice to the Company, to have the Company prepare and file
with the Commission, on one occasion, a registration statement and/or such other documents,
including a prospectus, and/or any other appropriate disclosure document as may be reasonably
necessary in the opinion of both counsel for the Company and counsel for the




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Majority of Holders, in order to comply with the provisions of the Act, so as to permit a
public offering and sale of their respective Registrable Securities for 12 consecutive months (or
such longer period of time as permitted by the Act) by such Majority of Holders and any other
Holders of any of the Registrable Securities who notify the Company within 20 days after receipt of
notice by registered or certified mail from the Company of such request (“Demand
Registration”). A Demand Registration shall not be counted as a Demand Registration hereunder
until such Demand Registration has been declared effective by the Commission and maintained
continuously effective for a period of at least 12 months or such shorter period when all
Registrable Securities included therein have been sold in accordance with such Demand Registration.
The Company shall pay all costs (excluding transfer taxes, if any, and the Holders’ pro-rata
portions of the selling discount or commissions), fees and expenses in connection with all
registration statements filed pursuant to Section 6.2 and this Section 6.3(a) including, without
limitation, the Company’s legal and accounting fees, printing expenses, blue sky fees and expenses
and the fees and expenses of one legal counsel to the Holders, so chosen by the Holders.




          (b) Expenses to be Paid by the Holder(s). At any time commencing one year after the
First Closing Date until the Expiration Time, a Majority of Holders shall have the right (which
right is in addition to the registration rights under Sections 6.2 and Section 6.3(a) hereof),
exercisable by written notice to the Company, to one Demand Registration. A Demand Registration
shall not be counted as a Demand Registration hereunder until such Demand Registration has been
declared effective by the Commission and maintained continuously effective for a period of at least
nine months or such shorter period when all Registrable Securities included therein have been sold
in accordance with such Demand Registration. The Holder(s) will pay all costs, fees and expenses
in connection with any registration statement filed pursuant to Section this 6.3(b).




          (c) The Company covenants and agrees to give written notice by registered or certified mail of
any registration request under this Section 6.3 by the Majority of Holders to all other registered
Holders of any of the Registrable Securities within 10 days from the date of the receipt of any
such registration request.




          (d) Any written request by the Holders made pursuant to this Section 6.3 shall:




               (i) specify the number of Registrable Securities which the Holders intend to offer and sell
and the minimum price at which the Holders intend to offer and sell such securities;



               (ii) state the intention of the Holders to offer such securities for sale;



               (iii) describe the intended method of distribution of such securities; and



               (iv) contain an undertaking on the part of the Holders to provide all such information and
materials concerning the Holders and take all such action as may be reasonably required to permit
the Company to comply with all applicable requirements of the Commission and to obtain acceleration
of the effective date of the registration statement.



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     6.4 Covenants of the Company with Respect to Registration. In connection with the
filing of any Registration Document by the Company, the Company covenants and agrees as follows:



          (a) The Company shall use its best efforts to file a registration statement within 45 days of
receipt of any Demand Registration pursuant to Section 6.3, and shall use its best efforts to have
any such registration statement declared effective at the earliest practicable time. The Company
will promptly notify each Holder of such Registrable Securities and confirm such advice in writing,
(i) when such registration statement becomes effective, (ii) when any post-effective amendment to
such registration statement becomes effective and (iii) of any request by the Commission for any
amendment or supplement to such registration statement or any prospectus relating thereto or for
additional information.




          (b) The Company shall furnish to each Holder of such Registrable Securities such number of
copies of such registration statement and of each such amendment and supplement thereto (in each
case including each preliminary prospectus and summary prospectus) in conformity with the
requirements of the Act, and such other documents as the Holders may reasonably request in order to
facilitate the disposition of the Registrable Securities by such Holders.




          (c) If the Company shall fail to comply with the provisions of Section 6.3(a), the Company
shall, in addition to any other equitable or other relief available to the Holder(s), be liable for
any or all special and consequential damages sustained by the Holder(s) requesting registration of
their Registrable Securities.




          (d) The Company shall prepare and file with the Commission such amendments and supplements to
such registration statement and the prospectus used in connection therewith as may be reasonably
necessary to keep such registration statement effective for at least 12 months (or such longer
period as permitted by the Act), and to comply with the provisions of the Act with respect to the
disposition of all securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the Holder or Holders of Registrable
Securities set forth in such registration statement. If at any time the Commission should
institute or threaten to institute any proceedings for the purpose of issuing a stop order
suspending the effectiveness of any such registration statement, the Company will promptly notify
each Holder of Registrable Securities and will use all reasonable efforts to prevent the issuance
of any such stop order or to obtain the withdrawal thereof as soon as possible. The Company will
use its good faith reasonable efforts and take all reasonably necessary action which may be
required in qualifying or registering the Registrable Securities included in a registration
statement for offering and sale under the securities or blue sky laws of such states as reasonably
are required by the Holder(s), provided that the Company shall not be obligated to execute or file
any general consent to service of process or to qualify as a foreign corporation to do business
under the laws of any such jurisdiction. The Company shall use its good faith reasonable efforts
to cause such Registrable Securities covered by such registration statement to be registered with
or approved by such other governmental agencies or authorities of the United States or any State
thereof as may be reasonably necessary to enable the Holder(s) thereof to consummate the
disposition of such Registrable Securities.




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          (e) The Company shall indemnify the Holder(s) of the Registrable Securities to be sold
pursuant to any registration statement and each person, if any, who controls such Holders within
the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), against all loss, claim, damage, expense or liability
(including all expenses reasonably incurred in investigating, preparing or defending against any
claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or
otherwise, arising from such registration statement but only to the same extent and with the same
effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriter as
contained in the Underwriting Agreement.




          (f) If requested by the Company prior to the filing of any registration statement covering the
Registrable Securities, each of the Holder(s) of the Registrable Securities to be sold pursuant to
a registration statement, and their successors and assigns, shall severally, and not jointly,
indemnify the Company, its officers and directors and each person, if any, who controls the Company
within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss,
claim, damage or expense or liability (including all expenses reasonably incurred in investigating,
preparing or defending against any claim whatsoever) to which they may become subject under the
Act, the Exchange Act or otherwise, arising from written information furnished by such Holder, or
their successors or assigns, for specific inclusion in such registration statement to the same
extent and with the same effect as the provisions contained in the Underwriting Agreement pursuant
to which the Underwriters have agreed to indemnify the Company, except that the maximum amount
which may be recovered from each Holder pursuant to this paragraph or otherwise shall be limited to
the amount of net proceeds received by the Holder from the sale of the Registrable Securities.




          (g) Nothing contained in this Agreement shall be construed as requiring the Holder(s) to
exercise their Warrants prior to the filing of any registration statement or the effectiveness
thereof.




          (h) The Company shall not permit the inclusion of any securities other than the Registrable
Securities to be included in any registration statement filed pursuant to Section 6.3 hereof
without the prior written consent of the Majority of Holders which consent will not be unreasonably
withheld or delayed.




          (i) The Company shall furnish to each Holder participating in an offering and to the managing
underwriter, if any, a signed counterpart, addressed to such Holder or underwriter, of (i) an
opinion of counsel to the Company, dated the effective date of such registration statement (and, if
such registration includes an underwritten public offering, an opinion dated the date of the
closing under the underwriting agreement), and (ii) a “Cold Comfort” letter dated the effective
date of such registration statement (and, if such registration includes an underwritten public
offering, a letter dated the date of the closing under the underwriting agreement) signed by the
independent public accountants who have issued a report on the Company’s financial statements
included in such registration statement, in each case covering substantially the same matters with
respect to such registration statement (and the prospectus included therein) and, in the case of
such accountants’ letter, with respect to events subsequent to the date of such financial
statements, as are customarily covered in opinions of




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issuer’s counsel and in accountants’ letters delivered to underwriters in underwritten public
offerings of securities.




          (j) The Company shall deliver promptly to each Holder participating in an offering and to the
managing underwriter, if any, copies of all correspondence between the Commission and the Company,
its counsel or auditors and all non-privileged memoranda relating to discussions with the
Commission or its staff with respect to the registration statement and permit each Holder and
underwriter to do such investigation, upon reasonable advance notice, with respect to information
contained in or omitted from the registration statement as it deems reasonably necessary to comply
with applicable securities laws or rules of the FINRA. Such investigation shall include access to
books, records and properties and opportunities to discuss the business of the Company with its
officers and independent auditors, all to such reasonable extent and at such reasonable times and
as often as any such Holder shall reasonably request.




          (k) With respect to a registration statement filed pursuant to Section 6.3, the Company, if
requested, shall enter into an underwriting agreement with the managing underwriter, reasonably
satisfactory to the Company, selected for such underwriting by a Majority of Holders requested to
be included in such underwriting. Such agreement shall be satisfactory in form and substance to
the Company, each Holder and such managing underwriter, and shall contain such representations,
warranties and covenants by the Company and such other terms as are customarily contained in
agreements of that type used by the managing underwriter. The Holders, if required by the
underwriter to be parties to any underwriting agreement relating to an underwritten sale of their
Registrable Securities, may, at their option, require that any or all the representations,
warranties and covenants of the Company to or for the benefit of such underwriters shall also be
made to and for the benefit of such Holders. Such Holders shall not be required to make any
representations or warranties to or agreements with the Company or the underwriters except as they
may relate to such Holders and their intended methods of distribution.




          (l) Notwithstanding the provisions of Section 6.2 or Section 6.3 of this Agreement, the
Company shall not be required to effect or cause the registration of Registrable Securities
pursuant to Section 6.2 or Section 6.3 hereof if, within 30 days after its receipt of a request to
register such Registrable Securities (i) counsel for the Company delivers an opinion to the Holders
and to the Company’s transfer agent requesting registration of such Registrable Securities, in form
and substance satisfactory to counsel to such Holder(s), to the effect that the entire number of
Registrable Securities proposed to be sold by such Holder(s) may otherwise be sold, in the manner
proposed by such Holder(s), without registration under the Securities Act, or (ii) the Commission
shall have issued a no-action position, in form and substance satisfactory to counsel for the
Holder(s) requesting registration of such Registrable Securities, to the effect that the entire
number of Registrable Securities proposed to be sold by such Holder(s) may be sold by it, in the
manner proposed by such Holder(s), without registration under the Securities Act; provided,
however, if the Company’s transfer agent does not permit the sale of the Registrable Securities
upon request or for any other reason such sale is delayed, the Company shall thereafter immediately
notify such Holders that it will register the Registrable Securities for sale under the Act and
cause such Registrable Securities to be so registered.




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          (m) After completion of the Public Offering, the Company shall not, directly or indirectly,
enter into any merger, business combination or consolidation in which (i) the Company shall not be
the surviving corporation and (ii) the shareholders of the Company are to receive, in whole or in
part, capital stock or other securities of the surviving corporation, unless the surviving
corporation shall, prior to such merger, business combination or consolidation, agree in writing to
assume the obligations of the Company under this Agreement, and for that purpose references
hereunder to “Registrable Securities” shall be deemed to include the securities which the
Holders would be entitled to receive in exchange for Registrable Securities under any such merger,
business combination or consolidation, provided that to the extent such securities to be received
are convertible into shares of Common Stock of the issuer thereof, then any such shares of Common
Stock as are issued or issuable upon conversion of said convertible securities shall also be
included within the definition of “Registrable Securities.”




7. Adjustments to Exercise Price and Number of Securities.




     7.1 Adjustment for Dividends, Subdivisions, Combinations or Reclassifications.



          (a) In case the Company shall (i) pay a dividend or make a distribution in shares of its
capital stock (whether shares of Common Stock or of capital stock of any other class), (ii)
subdivide its outstanding shares of Common Stock into a greater number of shares, (iii) combine its
outstanding shares of Common Stock into a smaller number of shares, or (iv) issue by
reclassification of its shares of Common Stock any shares of capital stock of the Company; then,
and in each such case, the per Share Exercise Price and the number of Shares in effect immediately
prior to such action shall be adjusted so that the Holder of this Warrant thereafter upon the
exercise hereof shall be entitled to receive the number and kind of shares of the Company which
such Holder would have owned immediately following such action had this Warrant been exercised
immediately prior thereto. An adjustment made pursuant to this Section 7.1 shall become effective
immediately after the record date in the case of a dividend or distribution and shall become
effective immediately after the effective date in the case of a subdivision, combination or
reclassification. If, as a result of an adjustment made pursuant to this section, the Holder of
this Warrant shall become entitled to receive shares of two or more classes of capital stock of the
Company, the Board of Directors of the Company (whose determination shall be conclusive) shall
determine the allocation of the adjusted Exercise Price between or among shares of such class of
capital stock.




          (b) Immediately upon any adjustment of the Exercise Price pursuant to this section, the
Company shall send written notice thereof to the Holder of Warrant Certificates (by first class
mail, postage prepaid), which notice shall state the Exercise Price resulting from such adjustment,
and any increase or decrease in the number of Shares to be acquired upon exercise of the Warrants,
setting forth in reasonable detail the method of calculation and the facts upon which such
calculation is based.




     7.2 Adjustment for Reorganization, Merger or Consolidation. In case of any
reorganization of the Company or consolidation of the Company with, or merger of the Company with,
or merger of the Company into, another corporation (other than a consolidation or merger which does
not result in any reclassification or change of the outstanding Common Stock), the corporation
formed by such consolidation or merger shall execute and deliver to the



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Holder a supplemental Warrant Agreement providing that the Holder of each Warrant then
outstanding or to be outstanding shall have the right thereafter (until the expiration of such
Warrant) to receive, upon exercise of such warrant, the kind and amount of shares of stock and
other securities and property receivable upon such consolidation or merger, by a holder of the
number of shares of Common Stock of the Company for which such warrant might have been exercised
immediately prior to such reorganization, consolidation, merger, conveyance, sale or transfer.
Such supplemental Warrant Agreement shall provide for adjustments which shall be identical to the
adjustments provided in this Section 7 and such registration rights and other rights as provided in
this Agreement. The Company shall not effect any such consolidation, merger, or similar
transaction as contemplated by this paragraph, unless prior to or simultaneously with the
consummation thereof, the successor corporation (if other than the Company) resulting from such
consolidation or merger or the corporation purchasing, receiving, or leasing such assets or other
appropriate corporation or entity shall assume, by written instrument executed and delivered to the
Holders, the obligation to deliver to the Holders, such shares of stock, securities, or assets as,
in accordance with the foregoing provisions, such holders may be entitled to purchase, and to
perform the other obligations of the Company under this Agreement. The above provision of this
Section 7.2 shall similarly apply to successive consolidations or successively whenever any event
listed above shall occur.



     7.3 Dividends and Other Distributions. In the event that the Company shall at any
time prior to the exercise of all of the Warrants distribute to its shareholders any assets,
property, rights, evidences of indebtedness, securities (other than a distribution made as a cash
dividend payable out of earnings or out of any earned surplus legally available for dividends under
the laws of the jurisdictions of incorporation of the Company), whether issued by the Company or by
another, the Holders of the unexercised Warrants shall thereafter be entitled, in addition to the
shares of Common Stock or other securities and property receivable upon the exercise thereof, to
receive, upon the exercise of such Warrants, the same property, assets, rights, evidences of
indebtedness, securities or any other thing of value that they would have been entitled to receive
at the time of such distribution as if the Warrants had been exercised immediately prior to such
distribution. At the time of any such distribution, the Company shall make appropriate reserves to
ensure the timely performance of the provisions of this subsection or an adjustment to the Exercise
Price, which shall be effective as of the day following the record date for such distribution.



     7.4 Adjustment in Number of Securities. Upon each adjustment of the Exercise Price
pursuant to the provisions of this Section 7, the number of securities issuable upon the exercise
of each Warrant shall be adjusted to the nearest full amount by multiplying a number equal to the
Exercise Price in effect immediately prior to such adjustment by the number of securities issuable
upon exercise of the Warrants immediately prior to such adjustment and dividing the product so
obtained by the adjusted Exercise Price.



     7.5 No Adjustment of Exercise Price in Certain Cases. No adjustment of the Exercise
Price shall be made if the amount of said adjustment shall be less than $.01 per Share; provided,
however, that in such case any adjustment that would otherwise be required then to be made shall be
carried forward and shall be made at the time of and together with the next subsequent adjustment
which, together with any adjustment so carried forward, shall amount to at least $.01 per Share.



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     7.6 Accountant’s Certificate of Adjustment. In each case of an adjustment or
readjustment of the Exercise Price or the number of any securities issuable upon exercise of the
Warrants, the Company, at its expense, shall cause independent certified public accountants of
recognized standing selected by the Company (who may be the independent certified public
accountants then auditing the books of the Company) to compute such adjustment or readjustment in
accordance herewith and prepare a certificate showing such adjustment or readjustment, and shall
mail such certificate, by first class mail, postage prepaid, to any Holder of the Warrants at the
Holders’ address as shown on the Company’s books. The certificate shall set forth such adjustment
or readjustment, showing in detail the facts upon which such adjustment or readjustment is based
including, but not limited to, a statement of (i) the Exercise Price at the time in effect, and
(ii) the number of additional or fewer securities and the type and amount, if any, of other
property which at the time would be receivable upon exercise of the Warrants.



8. Exchange and Replacement of Warrant Certificates.




     (a) Each Warrant Certificate is exchangeable without expense, upon the surrender thereof by
the registered Holder at the principal executive office of the Company, for a new Warrant
Certificate of like tenor and date representing in the aggregate the right to purchase the same
number of securities in such denominations as shall be designated by the Holder thereof at the time
of such surrender.



     (b) Upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of any Warrant Certificate, and, in case of loss, theft or destruction,
of indemnity or security reasonably satisfactory to it, and reimbursement to the Company of all
reasonable expenses incidental thereto, and upon surrender and cancellation of the Warrants, if
mutilated, the Company will make and deliver a new Warrant Certificate of like tenor, in lieu
thereof.


9. Elimination of Fractional Interest. The Company shall not be required to issue
certificates representing fractions of shares of Common Stock upon the exercise of the Warrants,
nor shall it be required to issue script or pay cash in lieu of fractional interests, it being the
intent of the parties that all fractional interests may be eliminated, at the Company’s option, by
rounding any fraction up to the nearest whole number of shares of Common Stock or other securities,
properties or rights, or in lieu thereof paying cash equal to such fractional interest multiplied
by the Market Value of a share of Common Stock.



10. Reservation, Validity and Listing. The Company covenants and agrees that during the
exercise period, the Company shall at all times reserve and keep available out of its authorized
shares of Common Stock, solely for the purpose of issuance upon the exercise of the Warrants, such
number of shares of Common Stock or other securities, properties or rights as shall be issuable
upon the exercise under this Warrant Certificate. The Company covenants and agrees that, upon
exercise of the Warrants, and payment of the Exercise Price therefor, all shares of Common Stock
and other securities issuable upon such exercise shall be duly authorized, validly issued, fully
paid, non-assessable and not subject to the preemptive rights of any shareholder. As long as the
Warrants shall be outstanding, the Company shall use its best efforts to cause all shares of Common
Stock issuable upon the exercise of the Warrants to be listed and quoted




11









 







(subject to official notice of issuance) on all securities exchanges and systems on which the
Common Stock are then listed and/or quoted, including Nasdaq and the American Stock Exchange.



11. Notices to Warrant Holders. Nothing contained in this Agreement shall be construed as
conferring upon the Holders of the Warrants the right to vote or to consent or to receive notice as
a shareholder in respect of any meetings of shareholders for the election of directors or any other
matter, or as having any rights whatsoever as a shareholder of the Company. If, however, at any
time prior to the expiration of the Warrants and their exercise, any of the following events shall
occur:




          (a) the Company shall take a record of the holders of its shares of Common Stock for the
purpose of entitling them to receive a dividend or distribution payable otherwise than in cash, or
a cash dividend or distribution payable otherwise than out of current or retained earnings, as
indicated by the accounting treatment of such dividend or distribution on the books of the Company;
or




          (b) the Company shall offer to all the holders of its Common Stock any additional shares of
capital stock of the Company or securities convertible into or exchangeable for shares of capital
stock of the Company, or any option, right or warrant to subscribe therefor; or




          (c) a dissolution, liquidation or winding up of the Company (other than in connection with a
consolidation or merger) or a sale of all or substantially all of its property, assets and business
as an entirety shall be proposed;



then, in any one or more of said events, the Company shall give written notice of such event at
least 15 days prior to the date fixed as a record date of the date of closing the transfer books
for the determination of the shareholders entitled to such dividend, distribution, convertible or
exchangeable securities or subscription rights, or entitled to vote on such proposed dissolution,
liquidation, winding up or sale. Such notices shall specify such record date or the date of
closing the transfer books, as the case may be.



12. Notices. All notices, requests, consents and other communications hereunder shall be
in writing and shall be deemed to have been duly given when sent by (i) facsimile; or
(ii) delivered personally or by overnight courier or mailed by registered or certified mail, return
receipt requested:




          (a) If to the registered Holder of any of the Registrable Securities, to the address of such
Holder as shown on the books of the Company.



With a copy to:



Christopher C. Paci, Esq.

DLA Piper LLP (US)

1251 Avenue of the Americas

New York, NY 10020

Fax: (212) 884-8470




12









 








          (b) If to the Company, to the address set forth below or to such other address as the Company
may designate by notice to the Holders.



Kendall Larsen

Chief Executive Officer

VirnetX Holding Corporation

5615 Scotts Valley Drive, Suite 110

Scotts Valley, CA 95066

Fax: (831) 438-3078



With a copy to:



Lowell D. Ness, Esq.

Orrick, Herrington & Sutcliffe LLP

1000 Marsh Road

Menlo Park, CA 94025

Fax: (650) 614-7401



13. Entire Agreement: Modification. This Agreement (and the Underwriting Agreement to the
extent applicable) contains the entire understanding between the parties hereto with respect to the
subject matter hereof, and the terms and provisions of this Agreement may not be modified, waived
or amended except in a writing executed by the Company and a Majority of Holders. Notice of any
modification, waiver or amendment shall be promptly provided to any Holder not consenting to such
modification, waiver or amendment.



14. Successors. All the covenants and provisions of this Agreement shall be binding upon
and inure to the benefit of the Company, the Holders and their respective successors and assigns
hereunder.



15. Termination. This Agreement shall terminate at the earlier of (i) the public sale of
all of the Registrable Securities, or (ii) at the close of business on January ___, 2014.
Notwithstanding the foregoing, the indemnification provisions of Section 6 shall survive such
termination.



16. Governing Law; Submission to Jurisdiction. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York without regard to the
conflicts of laws principles thereof. The parties hereto hereby irrevocably agree that any suit or
proceeding arising directly and/or indirectly pursuant to or under this Agreement, shall be brought
solely in a federal or state court located in the City, County and State of New York. By its
execution hereof, the parties hereby covenant and irrevocably submit to the in personam
jurisdiction of the federal and state courts located in the City, County and State of New York and
agree that any process in any such action may be served upon any of them personally, or by
certified mail or registered mail upon them or their agent, return receipt requested, with the same
full force and effect as if personally served upon them in New York City. The parties hereto waive
any claim that any such jurisdiction is not a convenient forum for any such suit or proceeding and
any defense or lack of in personam jurisdiction with respect thereto. In the event of any such
action or proceeding, the party prevailing therein shall be entitled to payment from


13









 






the other party hereto of its reasonable counsel fees and disbursements in an amount judicially
determined.



17. Severability. If any provision of this Agreement shall be held to be invalid or
unenforceable, such invalidity or unenforceability shall not affect any other provision of this
Agreement.



18. Captions. The caption headings of the sections of this Agreement are for convenience
of reference only and are not intended, nor should they be construed as, a part of this Agreement
and shall be given no substantive effect.



19. Benefits of This Agreement. Nothing in this Agreement shall be construed to give to
any person or corporation other than the Company and the Underwriter and any other registered
Holder(s) of the Warrant Certificates or Registrable Securities any legal or equitable right,
remedy or claim under this Agreement; and this Agreement shall be for the sole and exclusive
benefit of the Company and the Underwriters and any other Holder(s) of the Warrant Certificates or
Registrable Securities.



20. Counterparts. This Agreement may be executed in any number of counterparts and each of
such counterparts shall for all purposes be deemed to be an original, and such counterparts shall
together constitute but one and the same instrument.




[Remainder of This Page Intentionally Left Blank; Signature Page to Follow]




14









 








     IN WITNESS HEREOF, the parties hereto have caused this Agreement to be duly executed, as of
the day and year first above written.



	 	 	 	 	 
	 	VIRNETX HOLDING CORPORATION

 	 
	 	By:  	 	 
	 	 	Kendall Larsen 	 
	 	 	Chief Executive Officer 	 
	 
	 	GILFORD SECURITIES INCORPORATED

 	 
	 	By:  	 	 
	 	 	Robert A. Maley 	 
	 	 	President 	 
	 




15












 





VIRNETX HOLDING CORPORATION




WARRANT CERTIFICATE




     THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE OTHER SECURITIES ISSUABLE UPON EXERCISE
THEREOF MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, (ii) TO THE EXTENT APPLICABLE, RULE 144 UNDER SUCH ACT (OR
ANY SIMILAR RULE UNDER SUCH ACT RELATING TO THE DISPOSITION OF SECURITIES), OR (iii) AN OPINION OF
COUNSEL, IF SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL FOR THE ISSUER, THAT AN
EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE.



     THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS RESTRICTED IN
ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN.



EXERCISABLE ON OR BEFORE

5:30 P.M. EASTERN TIME ON JANUARY ___, 2014




NO. W-                                          Warrants




     This Warrant Certificate (“Warrant Certificate”) certifies that Gilford Securities
Incorporated, or its assigns, is the registered holder (“Holder”) of Warrants (as defined
in the Warrant Agreement between the Company and Holder dated as of January      , 2009 (the
“Warrant Agreement”)) of VirnetX Holding Corporation (the “Company”). Each Warrant
permits Holder to purchase, at any time from January      , 2009 (“Purchase Date”) until 5:30
p.m. Eastern Time on January      , 2014 (the “Expiration Time”), one share of the Company’s
Common Stock (the “Shares”) at the initial exercise price, subject to adjustment in certain
events, of $       per share (120% of the public offering price) (the “Exercise Price”).



     No Warrant may be exercised after the Expiration Time, at which time all Warrants evidenced
hereby, unless exercised prior thereto, shall thereafter be void.



     The Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of
Warrants issued pursuant to the Warrant Agreement. Capitalized terms used but not otherwise
defined herein shall have the meanings assigned to such terms in the Warrant Agreement.



     The Warrant Agreement provides that upon the occurrence of certain events, the Exercise Price
and the type or number of the Company’s securities issuable thereupon may be adjusted.



     Upon the exercise of less than all of the Warrants evidenced by this Certificate, the Company
shall forthwith issue to Holder a new Warrant Certificate representing such number of unexercised
Warrants.



     The Company may deem and treat Holder as the absolute owner of this Warrant Certificate
(notwithstanding any notation of ownership or other writing hereon made by anyone)













 







for the purpose of any exercise hereof, and of any distribution to Holder, and for all other
purposes, and the Company shall not be affected by any notice to the contrary.



[Remainder of This Page Intentionally Left Blank; Signature Page to Follow]




2









 





     IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be duly executed.



     Dated as of January ___, 2009



	 	 	 	 	 
	 	VIRNETX HOLDING CORPORATION

 	 
	 	By:  	 	 
	 	 	Kendall Larsen 	 
	 	 	Chief Executive Officer 	 
	 


















 





EXHIBIT A




FORM OF SUBSCRIPTION (CASH EXERCISE)




(To be signed only upon exercise of Warrant)





			
	           TO:	 	VirnetX Holding Corporation

5615 Scotts Valley Drive, Suite 110

Scotts Valley, CA 95066





     The undersigned holder of Warrant Certificate number                      (the “Warrant
Certificate”), representing                      Warrants (as defined in the Warrant Certificate) of
VirnetX Holding Corporation (the “Company”), which Warrant Certificate is being delivered
herewith, hereby irrevocably elects to purchase                      Shares (as defined in the Warrant
Certificate), and herewith makes payment of $                     therefore, all in accordance with the
Warrant Certificate and the Warrant Agreement referred to in the Warrant Certificate. Certificates
for the Shares shall be issued in the name of                                          and delivered to the following
address:



	 	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	 

	 	 

	 	 






	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	Name:

	 	 

	 	 	 	 
	 

	 	 

	 	 	 	 
	Social Security Number or Tax Identification Number:	 	 	 	 
	Date:

	 	 
	 	 

	 	 
	 

	 	 

	 	 	 	 






     (Signature must conform in all respects to name of Holder as specified on the face of the
Warrant Certificate)



	 	 	 	 	 
	 
	 	Address
	 	 
	 	 	 	 	 
	 
	 	Social Security Number or	 	 
	 
	 	Tax Identification Number	 	 






 









 





EXHIBIT B




FORM OF SUBSCRIPTION (CASHLESS EXERCISE)





			
	           TO:	 	VirnetX Holding Corporation

5615 Scotts Valley Drive, Suite 110

Scotts Valley, CA 95066





     The undersigned holder of Warrant Certificate number                      (the “Warrant
Certificate”), representing                      Warrants (as defined in the Warrant Certificate) of
VirnetX Holding Corporation (the “Company”), which Warrant Certificate is being delivered
herewith, hereby irrevocably elects to purchase (on a cashless exercise basis in accordance with
the formula set forth in Section 3.1(b) of the Warrant Agreement referred to in the Warrant
Certificate (the “Warrant Agreement”))                      Shares (as defined in the Warrant
Certificate), all in accordance with the Warrant Certificate and the Warrant Agreement.
Certificates for the Shares shall be issued in the name of                                          and delivered to the
following address:



	 	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	 

	 	 

	 	 






	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	Name:

	 	 

	 	 	 	 
	 

	 	 

	 	 	 	 
	Social Security Number or Tax Identification Number:	 	 	 	 
	Date:

	 	 
	 	 

	 	 
	 

	 	 

	 	 	 	 






     (Signature must conform in all respects to name of Holder as specified on the face of the
Warrant Certificate)



	 	 	 	 	 
	 
	 	Address
	 	 
	 	 	 	 	 
	 
	 	Social Security Number or	 	 
	 
	 	Tax Identification Number	 	 






 









 





FORM OF ASSIGNMENT




     (To be exercised by the registered holder if such Holder desires to transfer the Warrant
Certificate)



     FOR VALUE RECEIVED                                          hereby sells, assigns and transfers unto:



Print Name of Transferee




Address




City State Zip Code



this Warrant Certificate, together with all right, title and interest therein, and does hereby
irrevocably constitute and appoint                                          Attorney, to transfer the within
Warrant Certificate on the books of the within-named Company, with full power of substitution.




	 	 	 	 	 	 	 	 	 
	Dated:
	 	 	 	 	 	Signature:	 	 
	 

	 	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 
	 	 	 	 

(Signature must conform in all respects to name of
Holder as specified on the face of the Warrant
Certificate)
	 	 






Social Security Number or Other Identifying Number of Assignee