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UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549STATEMENT OF CHANGES IN BENEFICIAL OWNERSHIP OF SECURITIES Filed pursuant to Section 16(a) of the Securities Exchange Act of 1934, Section 17(a) of the Public Utility Holding Company Act of 1935 or Section 30(h) of the Investment Company Act of 1940 |
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| Reminder: Report on a separate line for each class of securities beneficially owned directly or indirectly. | |||
| Persons who respond to the collection of information contained in this form are not required to respond unless the form displays a currently valid OMB control number. | SEC 1474 (9-02) | ||
| 1. Title of Derivative Security (Instr. 3) |
2. Conversion or Exercise Price of Derivative Security | 3. Transaction Date (Month/Day/Year) | 3A. Deemed Execution Date, if any (Month/Day/Year) | 4. Transaction Code (Instr. 8) |
5. Number of Derivative Securities Acquired (A) or Disposed of (D) (Instr. 3, 4, and 5) |
6. Date Exercisable and Expiration Date (Month/Day/Year) |
7. Title and Amount of Underlying Securities (Instr. 3 and 4) |
8. Price of Derivative Security (Instr. 5) |
9. Number of Derivative Securities Beneficially Owned Following Reported Transaction(s) (Instr. 4) |
10. Ownership Form of Derivative Security: Direct (D) or Indirect (I) (Instr. 4) |
11. Nature of Indirect Beneficial Ownership (Instr. 4) |
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| Code | V | (A) | (D) | Date Exercisable | Expiration Date | Title | Amount or Number of Shares | ||||||||
| Series A Convertible Preferred Stock | (1) | 10/09/2018 | S | 342,000 | (2) | (2) | Common Stock | 3,336,976 (1) | $ 12.05 (3) | 558,000 | D | ||||
| Warrants (2) | $ 0.001 | 10/09/2018 | D | 63,610,935 | (4) | (4) | Common Stock | 63,610,935 | $ 0 (5) | 304,922,695 (6) | D | ||||
| Reporting Owner Name / Address | Relationships | |||
| Director | 10% Owner | Officer | Other | |
| HCP-FVA, LLC C/O HALE CAPITAL PARTNERS, LP 17 STATE STREET, SUITE 3230 NEW YORK, NY 10004 |
X | X | ||
| By: /s/ Martin M. Hale, Jr.; Name: Martin M. Hale, Jr.; Title: CEO | 10/11/2018 | |
| **Signature of Reporting Person | Date |
| * | If the form is filed by more than one reporting person, see Instruction 4(b)(v). |
| ** | Intentional misstatements or omissions of facts constitute Federal Criminal Violations. See 18 U.S.C. 1001 and 15 U.S.C. 78ff(a). |
| (1) | Each share of Series A Convertible Preferred Stock ("Preferred Stock") of Falconstor Software Inc. (the "Issuer") has a stated value of $10 (the "Stated Value"). Each share of Preferred Stock is initially convertible into such number of shares of common stock of Issuer ("Common Stock") determined by dividing the Stated Value by $1.02488, the initial conversion price of the Preferred Stock. The conversion price of the Preferred Stock is subject to adjustment from time to time in accordance with the terms of the Amended and Restated Certificate of Designations of the Preferred Stock. |
| (2) | The Preferred Stock is convertible at any time, at the holder's election, into Common Stock and has no expiration date. |
| (3) | In connection with the October 9, 2018 closing of the private placement of units (the "Financing") to certain stockholders of the Issuer as contemplated by that certain commitment letter, dated as of November 17, 2017, by and between Hale Capital Partners, LP and the Issuer (the "Commitment"), HCP-FVA, LLC ("HCP-FVA") sold 342,000 shares of Preferred Stock to such participating stockholders for an aggregate purchase price of $4,120,152.23, which equates to a per share purchase price of $12.05. |
| (4) | The warrants to purchase Common Stock that are reported in this Form 4 are presently exercisable and expire on February 23, 2028. |
| (5) | In connection with the closing of the Financing, 63,610,935 of the warrants previously issued by the Issuer to HCP-FVA in connection with HCP-FVA's purchase of $3,000,000 of units upon the closing of the Commitment were cancelled for no consideration. |
| (6) | Includes the backstop warrants held by HCP-FVA to purchase 1,543,630 shares of Common Stock as set forth in the previous filings of HCP-FVA. |
| Remarks: HCP-FVA has the right to designate a director of the Issuer pursuant to the terms of the Amended and Restated Certificate of Designation of Series A Convertible Preferred Stock of the Issuer and Martin Hale, Jr. is the board designee of HCP-FVA. Accordingly, HCP-FVA is a director by deputization. HCP-FVA, LLC; By: Hale Capital Partners, LP, its sole member | |