10-K


SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
Amendment No. 1
ý
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2015.
OR
o
TRANSITION REPORT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from __________ to __________

Commission file number 0-23970

FALCONSTOR SOFTWARE, INC.
(Exact name of registrant as specified in its charter)
DELAWARE
77-0216135
(State or other jurisdiction of
(I.R.S. Employer
incorporation or organization)
Identification No.)
 
 
2 Huntington Quadrangle, Suite 2S01
11747
Melville, New York
(Zip code)
(Address of principal executive offices)
 
 
Registrant's telephone number, including area code: 631-777-5188

Securities registered pursuant to Section 12(b) of the Act:
 
Name of Each Exchange on Which
Title of Each Class
the Securities are Registered
Common Stock, $.001 par value
NASDAQ Global Market
Securities registered pursuant to Section 12(g) of the Act:  None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ¨ No ý

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes ¨ No ý

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the Registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ý No ¨

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes ý No ¨

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. ¨
 
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definition of “large accelerated filer”, “accelerated filer”, and “smaller reporting company” in Rule 12b-2 of the Exchange Act. 
Large accelerated filer
o
 
Accelerated filer
ý
Non-accelerated filer
o
 
Smaller Reporting Company
o
 
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ¨ No ý
 
The aggregate market value of Common Stock held by non-affiliates of the Registrant as of June 30, 2015 was $55,272,418 which value, solely for the purposes of this calculation excludes shares held by Registrant's officers and directors. Such exclusion should not be deemed a determination by Registrant that all such individuals are, in fact, affiliates of the Registrant. The number of shares of Common Stock issued and outstanding as of January 31, 2016 was 57,298,017 and 41,769,947, respectively.

Documents Incorporated by Reference:
 
The information required by Part III of Form 10-K will be incorporated by reference to certain portions of a definitive proxy statement which is expected to be filed by the Company pursuant to Regulation 14A within 120 days after the close of its fiscal year.





EXPLANATORY NOTE

This Amendment No. 1 on Form 10-K/A (“Amendment No. 1”) is being filed to amend our Annual Report on Form 10-K for the fiscal year ended December 31, 2015 (“Original Form 10-K”), filed with the U.S. Securities and Exchange Commission (the “SEC”) on February 17, 2016 (“Original Filing Date”). The purpose of this Amendment No. 1 is to file one exhibit which was inadvertently omitted from the Original Form 10-K.
    
As required by the rules of the SEC, this Amendment No. 1 sets forth an amended “Item 15. Exhibits and Financial Statement Schedules” in its entirety and includes the new certifications from the Company’s chief executive officer and chief financial officer.

Except as described above, this Amendment No. 1 does not modify or update in any way the financial position, results of operations, cash flows or other disclosures in, or exhibits to, the Original Form 10-K, nor does it reflect events occurring after the filing of the Original Form 10-K. Accordingly, this Amendment No. 1 should be read in conjunction with the Original Form 10-K.






PART IV

Item 15.  Exhibits and Financial Statement Schedules
 
The information required by subsections (a)(1) and (a)(2) of this item are included in the response to Item 8 of Part II of this annual report on Form 10-K.
 
(b)           Exhibits
 
3.1
Restated Certificate of Incorporation, incorporated herein by reference to Exhibit 3.1 to the Registrant’s registration statement on Form S-1 (File no. 33-79350), filed on April 28, 1994.
3.2
Amended and Restated By-Laws of FalconStor Software, Inc., incorporated herein by reference to Exhibit 3.2 to the Registrant’s annual report on Form 10-K for the year ended December 31, 2010, filed on March 14, 2011.
3.3
Certificate of Amendment to the Restated Certificate of Incorporation, incorporated herein by reference to Exhibit 3.3 to the Registrant’s annual report on Form 10-K for the year ended December 31, 1998, filed on March 22, 1999.
3.4
Certificate of Amendment to the Restated Certificate of Incorporation, incorporated herein by reference to Exhibit 3.4 to the Registrant’s annual report on Form 10-K for the year ended December 31, 2001, filed on March 27, 2002.
3.5
Certificate of Designations, Preferences and Rights of Series A Convertible Preferred Stock, incorporated herein by reference to Exhibit 4.1 to the Registrant's report on Form 8-K dated September 16, 2013.
4.1s
2000 Stock Option Plan, as amended May 14, 2004, incorporated herein by reference to Exhibit 4.3 to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2004, filed on March 16, 2005.
4.2s
2004 Outside Directors Stock Option Plan, incorporated herein by reference to Exhibit 4.5 to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2004, filed on March 16, 2005.
4.3s
Amended and Restated 2006 Incentive Stock Plan incorporated herein by reference to Exhibit 4.1 to the Registrant’s quarterly report on Form 10-Q for the quarter ended March 31, 2007, filed on May 9, 2007.
4.4s
Form of Restricted Stock Letter Agreement for Executive Officers, incorporated herein by reference to Exhibit 99.1 to the Registrant’s quarterly report on Form 10-Q for the period ended March 31, 2008, filed May 9, 2008.
4.5s
Form of Restricted Stock Letter Agreement, incorporated herein by reference to Exhibit 4.1 to the Registrant’s current report on Form 8-K filed on April 7, 2014.
4.6s
FalconStor Software Inc., 2013 Outside Directors Equity Compensation Plan, incorporated herein by reference to the Registrant's Proxy Statement on Schedule 14a for the 2013 Annual meeting of Stockholders, filed on March 29, 2013.
10.1s
Amended and Restated FalconStor Software, Inc., 2005 Key Executive Severance Protection Plan, incorporated herein by reference to Exhibit 99.2 to Registrant’s current report on Form 8-K filed on April 7, 2014.
10.2s
FalconStor Software, Inc., Director Compensation Deferral Plan, effective January 1, 2011, incorporated herein by reference to Registrant’s annual report on Form 10-K, for the year ended December 31, 2010, filed,  on March 14, 2011.
10.3
Agreement of Lease between Huntington Quadrangle 2 LLC and FalconStor Software Inc., dated May 30, 2013, with a commencement date of March 1, 2014, incorporated herein by reference to Exhibit 99.1 to the Registrant's quarterly report on Form 10-Q for the period ended September 30, 2013 filed on November 7, 2013.
10.4s
Employment Agreement dated July 24, 2015 between the Company and Gary Quinn, incorporated herein by reference to Exhibit 10.1 to the Registrant's quarterly report on Form 10-Q dated July 30, 2015.
10.5
Preferred Stock Purchase Agreement dated as of September 16, 2013 between the Company and Hale Capital Partners, LP, incorporated herein by reference to Exhibit 10.1 to the Registrant's report on Form 8-K dated September 16, 2013.
10.6
Independent Contractor Agreement dated July 24, 2015 between the Company and RFN Prime Marketing Inc., incorporated herein by reference to Exhibit 10.2 to the Registrant's quarterly report on Form 10-Q dated July 30, 2015.
10.7
Change in Registrant's Certifying Accountant, Letter of KPMG LLP, incorporated herein by reference to Exhibit 16.1 to the Registrant's report on Form 8-K dated June 16, 2015.





10.8s*
Key Executive Change in Control Severance Agreement between Alan Komet and FalconStor Software, Inc., dated October 28, 2015.
21.1
Subsidiaries of Registrant – FalconStor, Inc., FalconStor AC, Inc., FalconStor Software (Korea), Inc.
23.1**
Consent of BDO USA, LLP
23.2**
Consent of KPMG LLP
31.1*
Certification of the Chief Executive Officer
31.2*
Certification of the Chief Financial Officer
32.1*
Certification of Chief Executive Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (18 U.S.C. § 1350)
32.2*
Certification of Chief Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (18 U.S.C. § 1350)
101.1**
The following financial statements from FalconStor Software, Inc’s Annual Report on Form 10-K for the year ended December 31, 2015, formatted in XBLR (eXtensible Business Reporting Language):
 
(i)  Consolidated Balance Sheets – December 31, 2015 and December 31, 2014
 
(ii)  Consolidated Statements of Operations – Years Ended December 31, 2015, 2014 and 2013.
 
(iii)  Consolidated Statements of Comprehensive Loss – Years Ended December 31, 2015, 2014 and 2013.
 
(iv)  Consolidated Statements of Stockholders’ (Deficit) Equity – Years Ended December 31, 2015, 2014 and 2013.
 
(v)  Consolidated Statements of Cash Flows – Years Ended December 31, 2015, 2014 and 2013.
 
(vi)  Notes to Consolidated Financial Statements – December 31, 2015.
 
*- Filed herewith.
**- Previously filed with the Original Form 10-K, filed February 17, 2016.
s- Denotes management contract or compensatory plan or arrangement.






SIGNATURES
 
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this Amendment No. 1 to this report to be signed on its behalf by the undersigned, thereunto duly authorized in Melville, State of New York on March 11, 2016.

FALCONSTOR SOFTWARE, INC.
 
 
 
 
 
By:
/s/ Gary Quinn
 
Date:
March 11, 2016
 
Gary Quinn, President and Chief Executive Officer of FalconStor Software, Inc.
 
 
 
 
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the date indicated.
 
By:
/s/ Gary Quinn
 
March 11, 2016
 
Gary Quinn, President and Chief Executive Officer and Director
(principal executive officer)
 
Date

By:
/s/ Louis J. Petrucelly
 
March 11, 2016
 
Louis J. Petrucelly, Executive Vice President, Chief Financial Officer and Treasurer
(principal financial and accounting officer)
 
Date

By:
*
 
March 11, 2016
 
Steven R. Fischer, Director
 
Date

By:
*
 
March 11, 2016
 
Alan W. Kaufman, Director
 
Date

By:
*
 
March 11, 2016
 
Irwin Lieber, Director
 
Date

By:
*
 
March 11, 2016
 
Eli Oxenhorn, Chairman of the Board
 
Date

By:
*
 
March 11, 2016
 
Barry Rubenstein, Director
 
Date

By:
*
 
March 11, 2016
 
Martin Hale Jr., Director
 
Date

By:
*
 
March 11, 2016
 
Michael Kelly, Director
 
Date

* By /s/ Louis J. Petrucelly
Louis J. Petrucelly, Attorney-in-fact