Statement of Ownership (sc 13g)
August 28 2017 - 8:01AM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13G
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULES 13d-1 (b) (c), AND (d) AND AMENDMENTS THERETO FILED
PURSUANT TO RULE 13d-2(b)
(Amendment No. N/A)
1
FALCONSTOR SOFTWARE, INC.
(Name of issuer)
Common
Stock, par value $0.001
(Title of class of securities)
306137100
(CUSIP number)
08/21/2017
(Date of event which requires filing of this statement)
Check the
appropriate box to designate the rule pursuant to which this Schedule is filed:
☐ Rule 13d-1(b)
☒ Rule 13d-1(c)
☐
Rule 13d-1(d)
(Continued on the following pages)
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1
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The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information
which would alter disclosures provided in a prior cover page.
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The information required on the remainder of this cover page
shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
SCHEDULE 13G
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1
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NAME
OF REPORTING PERSONS
S.S. OR I.R.S IDENTIFICATION NOS. OF ABOVE PERSONS
ESW CAPITAL, LLC
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2
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CHECK THE APPROPRIATE BOX IF A
MEMBER OF A GROUP*
(a)
☐
(b)
☒
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3
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SEC USE ONLY
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4
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CITIZENSHIP OR PLACE OF
ORGANIZATION
Delaware
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NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
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5
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SOLE VOTING POWER
6,399,361 (1)
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6
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SHARED VOTING POWER
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7
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SOLE DISPOSITIVE POWER
6,399,361 (1)
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8
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SHARED DISPOSITIVE POWER
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9
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,399,361 (1)
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10
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CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (9) EXCLUDES CERTAIN SHARES*
☐
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11
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PERCENT OF CLASS REPRESENTED BY
AMOUNT IN ROW 9
14.4% (2)
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12
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TYPE OF REPORTING PERSON*
OO
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Page 2 of 9
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1
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NAME
OF REPORTING PERSONS
S.S. OR I.R.S IDENTIFICATION NOS. OF ABOVE PERSONS
Joseph A. Liemandt
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2
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CHECK THE APPROPRIATE BOX IF A
MEMBER OF A GROUP*
(a)
☐
(b)
☒
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3
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SEC USE ONLY
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4
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CITIZENSHIP OR PLACE OF
ORGANIZATION
U.S.A.
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NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
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5
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SOLE VOTING POWER
6,399,361 (1)
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6
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SHARED VOTING POWER
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7
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SOLE DISPOSITIVE POWER
6,399,361 (1)
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8
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SHARED DISPOSITIVE POWER
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9
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,399,361 (1)
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10
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CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (9) EXCLUDES CERTAIN SHARES*
☐
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11
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PERCENT OF CLASS REPRESENTED BY
AMOUNT IN ROW 9
14.4% (2)
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12
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TYPE OF REPORTING PERSON*
IN/HC
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(1)
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6,399,361 shares are held directly by ESW Capital, LLC (“ESW”). Joseph A. Liemandt is the sole voting member of ESW, and may be deemed to have beneficial ownership of the shares held by ESW.
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(2)
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Based upon 44,563,490 shares of common stock of the issuer as of July 31, 2017, as reported in the Issuer’s Form 10-Q filed with the Securities and Exchange Commission on August 11, 2017.
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Page 3 of 9
FalconStor Software, Inc.
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(b)
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Address of Issuer’s Principal Executive Offices:
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2 Huntington Quadrangle, Suite 2501
Melville, NY 11747
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(a)
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Name of Person Filing:
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(1) ESW Capital, LLC
(2) Joseph A. Liemandt, who is the sole voting member of ESW
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(b)
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Address of Principal Business Office or, if None, Residence:
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(1) ESW Capital, LLC
401 Congress Ave., Suite 2650
Austin, TX 78701
(2) Joseph A.
Liemandt
401 Congress Ave., Suite 2650
Austin, TX 78701
(1) ESW Capital, LLC is a Delaware limited liability company.
(2) Joseph A. Liemandt is a U.S. citizen.
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(d)
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Title of Class of Securities:
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Common Stock, par value $0.001 per share
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(e)
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CUSIP Number: 306137100
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Page 4 of 9
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Item 3
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If this statement is filed pursuant to §§
240.13d-1(b)
or
240.13d-2(b)
or (c), check whether the person filing is a:
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(a)
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☐
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Broker or dealer registered under section 15 of the Act (15 U.S.C. 78o).
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(b)
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Bank as defined in section 3(a)(6) of the Act (15 U.S.C. 78c).
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(c)
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Insurance company as defined in section 3(a)(19) of the Act (15 U.S.C. 78c).
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(d)
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☐
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Investment company registered under section 8 of the Investment Company Act of 1940 (15 U.S.C.
80a-8).
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(e)
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☐
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An investment adviser in accordance with
§240.13d-1(b)(1)(ii)(E);
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(f)
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☐
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An employee benefit plan or endowment fund in accordance with
§240.13d-1(b)(1)(ii)(F);
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(g)
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☐
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A parent holding company or control person in accordance with
§240.13d-1(b)(1)(ii)(G);
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(h)
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☐
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A savings associations as defined in Section 3(b) of the Federal Deposit Insurance Act (12 U.S.C. 1813);
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(i)
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☐
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A church plan that is excluded from the definition of an investment company under section 3(c)(14) of the Investment Company Act of 1940 (15 U.S.C.
80a-3);
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(j)
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☐
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Group, in accordance with
§240.13d-1(b)(1)(ii)(J).
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(a)
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Amount Beneficially Owned: 6,399,361 shares are held directly by ESW Capital, LLC (“ESW”). Joseph A. Liemandt is the sole voting member of ESW, and may be deemed to have beneficial ownership of the shares held
by ESW.
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(b)
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Percent of Class: ESW Capital and Mr. Liemandt may be deemed to be the beneficial owners of 14.4% of the outstanding shares of common stock, based upon 44,563,490 shares of common stock of the issuer as of
July 31, 2017, as reported in the Issuer’s Form
10-Q
filed on August 11, 2017.
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Page 5 of 9
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(c)
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Number of Shares as to which the person has:
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(i) Sole power to vote or
to direct the vote: See Item 5 on the cover page(s) hereto.
(ii) Shared power to vote or to direct the vote: See
Item 6 on the cover page(s) hereto.
(iii) Sole power to dispose or to direct the disposition of: See Item 7 on the
cover page(s) hereto.
(iv) Shared power to dispose or to direct the disposition of: See Item 8 on the cover
page(s) hereto.
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Item 5
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Ownership of Five Percent or Less of a Class.
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If this statement is being filed
to report the fact that as of the date hereof the reporting person has ceased to be the beneficial owner of more than five percent of the class of securities, check the following ☐.
Not applicable.
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Item 6
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Ownership of More than Five Percent on behalf of Another Person.
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Not
applicable.
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Item 7
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Identification and Classification of the Subsidiary Which Acquired the Security Being Reported on By the Parent Holding Company.
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See item 2(a).
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Item 8
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Identification and Classification of Members of the Group.
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Not
applicable.
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Item 9
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Notice of Dissolution of Group.
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Not applicable.
By signing below I certify that, to the best of my knowledge and
belief, the securities referred to above were acquired and are held in the ordinary course of business and were not acquired and are not held for the purpose of or with the effect of changing or influencing the control of the issuer of the
securities and were not acquired and are not held in connection with or as a participant in any transaction having that purpose or effect.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Page 6 of 9
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
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Date: August 28, 2017
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ESW CAPITAL, LLC
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By:
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/s/ Andrew S. Price
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Andrew S. Price
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Chief Financial Officer
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JOSEPH A. LIEMANDT
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/s/ Andrew S. Price, As
attorney-in-fact
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Andrew S. Price
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Page 7 of 9
EXHIBIT 99.1
Joint Filing Agreement
The undersigned
acknowledge and agree that the foregoing statement on Schedule 13G is filed on behalf of each of the undersigned and that all subsequent amendments to this statement on Schedule 13G shall be filed on behalf of each of the undersigned without the
necessity of filing additional joint filing statements. The undersigned acknowledge that each shall be responsible for the timely filing of such amendments, and for the completeness and accuracy of the information concerning him, her or it contained
herein, but shall not be responsible for the completeness and accuracy of the information concerning the other entities or persons, except to the extent that he, she or it knows or has reason to believe that such information is inaccurate.
Date: August 28, 2017
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ESW CAPITAL, LLC
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By:
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/s/ Andrew S. Price
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Andrew S. Price
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Chief Financial Officer
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JOSEPH A. LIEMANDT
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/s/ Andrew S. Price, As
attorney-in-fact
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Andrew S. Price
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Page 8 of 9
LIMITED POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby constitutes and
appoints Andrew S. Price his true and lawful
attorney-in-fact,
with full power
of substitution, to sign any and all instruments, certificates and documents that may be necessary, desirable or appropriate to be executed on behalf of himself as an individual or in his capacity as a direct or indirect general partner, director,
officer, member or manager of any partnership, corporation or limited liability company, pursuant to section 13 or 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and any and all regulations promulgated
thereunder, and to file the same, with all exhibits thereto, and any other documents in connection therewith, with the Securities and Exchange Commission, and with any other entity when and if such is mandated by the Exchange Act or by the Financial
Industry Regulatory Authority, granting unto said
attorney-in-fact
full power and authority to do and perform each and every act and thing necessary, desirable or
appropriate, fully to all intents and purposes as he might or could do in person, thereby ratifying and confirming all that said
attorney-in-fact,
or his substitutes,
may lawfully do or cause to be done by virtue hereof.
Each of the undersigned may execute this power of attorney in separate counterparts, and each
counterpart shall be deemed to be an original instrument.
This agreement shall be effective as to each of the undersigned as of the date signed by that
signatory.
IN WITNESS WHEREOF, this Power of Attorney has been signed as of the 10th day of March, 2017.
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/s/ Joseph A. Leimandt
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Joseph A. Liemandt
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Page 9 of 9
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