UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of The Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): June 24, 2021
| FALCONSTOR SOFTWARE, INC. | ||
| (Exact Name of Registrant as Specified in Its Charter) | ||
| Delaware | 000-23970 | 77-0216135 |
|
(State or Other Jurisdiction
of Incorporation) |
(Commission
File Number) |
(IRS Employer
Identification No.) |
| 701 Brazos Street, Suite 400, Austin, TX | 78701 | |
| (Address of Principal Executive Offices) | (Zip Code) | |
Registrant’s Telephone Number, Including Area Code: 631-777-5188
| N/A |
| (Former Name or Former Address, If Changed Since Last Report) |
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth 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 13(a) of the Exchange Act. ☐
| Item 5.03. | Amendments to Articles of Incorporation; Change in Fiscal Year. |
On June 25, 2021, FalconStor Software, Inc. (the “Company”) filed a certificate of amendment (the “ Amendment”) to the Company’s Amended and Restated Certificate of Designations, Preferences and Rights of Series A Convertible Preferred Stock (the “Certificate of Designations”) with the Delaware Secretary of State to implement certain modifications to the terms of the Company’s Series A Convertible Preferred Stock (the “Series A Preferred Stock”). As further described below in Item 5.07, on June 24, 2021, the Company’s stockholders approved the Amendment at the Company’s 2021 annual meeting of stockholders (the “Annual Meeting”).
A copy of the Amendment is attached hereto as Exhibit 3.1 and is incorporated herein by reference.
| Item 5.07. | Submission of Matters to a Vote of Security Holders. |
On June 24, 2021, the Company held its Annual Meeting for the purposes of voting on the matters disclosed in its definitive Proxy Statement on Schedule 14A, filed with the Securities and Exchange Commission on June 1, 2021. As of the record date of May 14, 2021, there were 5,949,463 shares of common stock, par value $0.001 per share (“Common Stock”), outstanding and entitled to notice of and to vote at the Annual Meeting as well as an additional 87,815 shares that could vote pursuant to the terms of the Company’s outstanding Series A Preferred Stock. The final voting for the matters submitted to a vote of stockholders is as follows:
Proposal No. 1 — Election of Directors
At the Annual Meeting, stockholders voted for the election of two director for a three-year term until the annual meeting of stockholders to be held in 2021 or until his successor is elected and qualified. The Company’s nominees for director received the requisite plurality of the votes cast by the holders of shares present at the Annual Meeting in person or by proxy and entitled to vote thereon, and, accordingly, were elected to the Board of Directors. The number of votes cast for and withheld from each nominee is set forth below:
| Nominee | Votes For | Votes Withheld | Broker Non-Votes | |||
| Barry Rudolph | 4,325,231 | 1,148 | 179,543 | |||
| William Miller | 4,325,206 | 1,173 | 179,543 |
Proposal No. 2 — Approval of Amendment to Certificate of Designations
The proposal for the approval of an amendment to the Certificate of Designations to extend the deadline for redemptions was approved by the affirmative vote of the holders of a majority of the outstanding shares of Series A Preferred Stock, voting separately as a single class, as well as the affirmative vote of a majority of the outstanding shares entitled to vote at the Annual Meeting, as follows:
| Votes For | Votes Against | Abstain | Broker Non-Votes | |||
| 4,325,237 | 1,118 | 24 | 179,543 |
| 1 |
Proposal No. 3 — Approval of Amendment to 2018 Incentive Stock Plan
The proposal for the approval of an amendment to the Company’s 2018 Incentive Stock Plan to increase the number of shares of Common Stock available for issuance from 1,471,997 to 1,692,797 shares was approved by a majority of the votes cast as follows:
| Votes For | Votes Against | Abstain | Broker Non-Votes | |||
| 4,324,280 | 2,083 | 16 | 179,543 |
Proposal No. 4 — Approval of Say on Pay Proposal
The proposal for the approval of a non-binding advisory resolution regarding the compensation of the Company’s named executive officers was approved by a majority of the votes cast as follows:
| Votes For | Votes Against | Abstain | Broker Non-Votes | |||
| 4,317,183 | 1,237 | 7,959 | 179,543 |
Proposal No. 5 — Independent Registered Public Accounting Firm
The proposal for the ratification of the selection of Marcum LLP as the Company’s independent registered public accountants for the current fiscal year ending December 31, 2021 was approved by a majority of the votes cast as follows:
| Votes For | Votes Against | Abstain | Broker Non-Votes | |||
| 4,504,602 | 1,309 | 11 | — |
| Item 9.01. | Financial Statements and Exhibits. |
| (d) | Exhibits |
| 2 |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Date: June 28, 2021 | FALCONSTOR SOFTWARE, INC. | ||
| By: |
/s/ Brad Wolfe |
||
| Name: | Brad Wolfe | ||
| Title: | Chief Financial Officer | ||
| 3 |
Exhibit Index
| 4 |
Exhibit 3.1
AMENDMENT NO. 1 TO THE
AMENDED AND RESTATED CERTIFICATE OF DESIGNATIONS, PREFERENCES AND RIGHTS OF SERIES A CONVERTIBLE PREFERRED STOCK OF
FALCONSTOR SOFTWARE, INC.
____________________________________
This Amendment No. 1 to the Amended and Restated Certificate of Designations, Preferences and Rights of Series A Convertible Preferred Stock of FalconStor Software, Inc. (this “Amendment”) is made by FalconStor Software, Inc. (the “Company”) as of June 24, 2021. Capitalized terms used but not defined herein have the meaning set forth in the Amended and Restated Certificate of Designations, Preferences and Rights of Series A Convertible Preferred Stock of FalconStor Software, Inc. (the “Certificate of Designations”).
WHEREAS, the Company duly adopted the Certificate of Designations on June 22, 2018;
WHEREAS, the Board of Directors of the Company (the “Board”) desires to amend the Certificate of Designations to extend the commencement of the mandatory redemption right set forth in Section 8(a) of the Certificate of Designations from July 30, 2021 to July 30, 2023;
NOW THEREFORE, subject to approval of the Company’s shareholders and effective as of the date hereof, the Certificate of Designations is hereby amended as follows:
1. Amendment to the Certificate of Designations.
(a) The first sentence of Section 8(a) of the Certificate of Designations is hereby amended and restated to read in its entirety as follows:
Subject to Section 10(d) hereof, each Holder shall have the right to require the Corporation to redeem all or any portion of its outstanding shares of Series A Preferred Stock at any time, and from time to time, after July 30, 2023, by delivering written notice (the “Optional Redemption Notice”) thereof to the Corporation, which shall specify (i) the number of shares of Series A Preferred Stock to be redeemed and (ii) the date on which the Holder’s optional redemption shall occur, which date shall be not less than thirty (30) Business Days from the date the Corporation receives the Optional Redemption Notice (such date hereinafter referred to as the “Optional Redemption Date”).
2. Miscellaneous Provisions.
(a) Effect of Amendment. Except as otherwise expressly provided for herein, the Certificate of Designations shall remain unchanged and shall continue in full force and effect. From and after the date hereof, any references to the Certificate of Designations shall be deemed to be references to the Certificate of Designations as amended by this Amendment.
(b) Governing Law. This Amendment shall be interpreted and enforced in accordance with, and its validity and performance shall be governed by, the laws of the State of Delaware without regard to its laws regarding conflicts of laws.
(c) Approval. The amendment herein certified has been duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
(d) Counterparts. This Amendment may be executed in any number of counterparts and by different parties hereto on separate counterparts, each of which when so executed and delivered shall be an original, but all of which counterparts taken together shall be deemed to constitute one and the same instrument. The existence of this Amendment may be established by the introduction into evidence of counterparts that are separately signed, provided they are otherwise identical in all material respects.
[Signature Page Below]
| 2 |
IN WITNESS WHEREOF, the undersigned have executed this Amendment as evidence of the adoption by the Board on the date set forth above.
| FALCONSTOR SOFTWARE, INC. | |||
| By: | /s/ Brad Wolfe | ||
| Name: | Brad Wolfe | ||
| Title: | EVP and Chief Financial Officer | ||
| 3 |