RULE 424(b)(3) TO REGISTRATION STATEMENT 333-69830 FALCONSTOR SOFTWARE, INC. SUPPLEMENT DATED NOVEMBER 16, 2005 TO PROSPECTUS DATED OCTOBER 19, 2001 The following information amends and restates the "Selling Stockholders" table contained in the Prospectus dated October 19, 2001, as supplemented on December 4, 2002, June 23, 2003 and November 4, 2004 ("Prospectus") relating to the sale of an aggregate of 28,247,984 shares of common stock, $.001 par value ("Common Stock"), by certain persons ("Selling Stockholders"). All capitalized terms used herein which are not otherwise defined have the meaning ascribed to them in the Prospectus. The "Selling Stockholders" table is being amended primarily to reflect a charitable gift of 100,000 shares by Barry Rubenstein to the North Shore - L.I.J. Health System Foundation. Accordingly, the number of shares held by Mr. Rubenstein and the number of shares to be sold by Mr. Rubenstein pursuant to the Prospectus shall be reduced by 100,000 and the North Shore - L.I.J. Health System Foundation may sell up to 100,000 shares of Common Stock pursuant to the Prospectus. The North Shore - L.I.J. Health System Foundation owns no other shares of Common Stock and has not been an officer, director or employee of the Company for the past three years. The North Shore - L.I.J. Health System Foundation previously sold 300,000 shares of Common Stock pursuant to the Prospectus. In addition, certain information in the Selling Stockholders table has changed since the effective date of the Registration Statement underlying the Prospectus.SELLING STOCKHOLDERS The following list of Selling Stockholders includes, the number of shares of Common Stock beneficially owned, the maximum number of shares of Common Stock to be sold in the Offering by the Selling Stockholders and the number of shares of Common Stock to be beneficially owned by the Selling Stockholders after the Offering (assuming sale of such maximum number of shares). We have 47,719,498 shares of Common Stock outstanding as of October 26, 2005. The number of shares to be sold or have been sold in the Offering includes 28,247,984 shares of Common Stock. The shares being offered hereby primarily relate to the resale of shares of Common Stock, by our affiliates or affiliates of FalconStor, Inc., which were acquired in the merger between FalconStor, Inc. and us. A Selling Stockholder may sell all or part of the shares of Common Stock registered for its account hereunder. To the extent that, pursuant to Rule 13d-3 of the Securities Exchange Act of 1934, as amended, a Selling Stockholder may be deemed to be the beneficial owner of shares held by one or more other beneficial owners of Common Stock, we have included all of such shares in the information presented in the table. Percent Maximum Shares Beneficially Number of Shares to be Percent to be Beneficially Owned Prior Shares to be Beneficially Beneficially Owned Prior to to this Offered for Owned after Owned after this Offering(1) Offering(1) Resale this Offering(1) this Offering(1) ---------------- ----------- ------ ---------------- ---------------- ReiJane Huai (2) c/o FalconStor Software, Inc. 10,804,460 (2) 22.6% 10,804,460 (2) 0 N/A 2 Huntington Quadrangle Melville New York 11747 The 2002 ReiJane Huai 43,700 * 43,700 0 N/A Revocable Trust 3 Carlisle Drive Old Brookville, NY 11545 Barry Rubenstein (3) 6,543,053 13.7% 6,543,053 0 N/A 68 Wheatley Road Brookville, NY 11545 North Shore - L.I.J. Health 100,000 * 100,000 0 N/A System Foundation 125 Community Drive Great Neck, New York 11021 Brookwood Partners, L.P. (4) 395,217 * 395,217 0 N/A 68 Wheatley Road Brookville, NY 11545 Seneca Ventures (4) 642,453 1.3% 642,453 0 N/A 68 Wheatley Road Brookville, NY 11545 2 Percent Maximum Shares Beneficially Number of Shares to be Percent to be Beneficially Owned Prior Shares to be Beneficially Beneficially Owned Prior to to this Offered for Owned after Owned after this Offering(1) Offering(1) Resale this Offering(1) this Offering(1) ---------------- ----------- ------ ---------------- ---------------- Wheatley Associates III, LP (6) 1,962,836 4.1% 1,962,836 0 N/A 68 Wheatley Road Brookville, NY 11545 Wheatley Foreign Partners III, 1,962,836 4.1% 1,962,836 0 N/A L.P. (6) 68 Wheatley Road Brookville, NY 11545 Wheatley Partners III, L.P. (5) 1,962,836 4.1% 1,962,836 0 N/A 68 Wheatley Road Brookville, NY 11545 Wheatley Foreign Partners, 525,059 1.1% 525,059 0 N/A L.P. (6) 68 Wheatley Road Brookville, NY 11545 Wheatley Partners, L.P. (6) 525,059 1.1% 525,059 0 N/A 68 Wheatley Road Brookville, NY 11545 Wheatley Partners II, L.P. (4) 180,089 * 180,089 0 N/A 68 Wheatley Road Brookville, NY 11545 Woodland Partners (4) 692,983 1.5% 692,983 0 N/A 68 Wheatley Road Brookville, NY 11545 Woodland Venture Fund (4) 743,513 1.6% 743,513 0 N/A 68 Wheatley Road Brookville, NY 11545 Irwin Lieber (7) 4,602,689 9.6% 4,602,689 0 N/A 80 Cuttermill Road, Suite 311 Great Neck, NY 11021 Barry Fingerhut (8) 3,157,664 6.6% 3,000,164 157,500 * 767 Fifth Avenue, 45th Floor New York, NY 10153 Nancy Casey (9) 2,057,580 4.3% 2,057,580 0 N/A 10836 Pleasant Hill Drive Potomac, MD 20854 3 Percent Maximum Shares Beneficially Number of Shares to be Percent to be Beneficially Owned Prior Shares to be Beneficially Beneficially Owned Prior to to this Offered for Owned after Owned after this Offering(1) Offering(1) Resale this Offering(1) this Offering(1) ---------------- ----------- ------ ---------------- ---------------- Applegreen Partners (4) 259,868 * 259,868 0 N/A 271 Hamilton Road Chappaqua, NY 10514 Seth Lieber (10) 3,014,474 6.3% 3,014,474 0 N/A 200 East 72 Street, PH N New York, NY 10021 Jonathan Lieber (11) 2,927,852 6.1% 2,927,852 0 N/A 271 Hamilton Road Chappaqua, NY 10514 Marilyn Rubenstein (12) 2,475,424 5.2% 2,475,424 0 N/A c/o Barry Rubenstein 68 Wheatley Road Brookville, NY 11545 Lawrence S. Dolin (13) 110,311 * 40,000 70,311 * c/o FalconStor Software, Inc. 2 Huntington Quadrangle Melville, NY 11747 Steven A. Fischer (14) 74,811 * 2,500 72,311 * 245 Jerome Street Syosset, NY 11791 Glenn Penisten (15) 612,654 1.3% 225,908 406,925 * 11651 Brooks Road Windsor, CA 95492 Wayne Lam (16) 566,346 1.2% 3,537 562,809 1.2% c/o FalconStor Software, Inc. 2 Huntington Quadrangle Melville, NY 11747 - ---------------------------------- * Less than one percent (1) A person is deemed to be the beneficial owner of voting securities that can be acquired by such person within 60 days after the date hereof upon the exercise of options, warrants or convertible securities. Each beneficial owner's percentage ownership is determined by assuming that options, warrants or convertible securities that are held by such person (but not those held by any other person) and that are currently exercisable (i.e., that are exercisable within 60 days from the date hereof) have been exercised. Unless otherwise noted, we believe that all persons named in the table have sole voting and investment power with respect to all shares beneficially owned by them. 4 (2) Based upon information contained in a Form 5 and certain other information. Includes 43,700 shares held by The ReiJane Huai Revocable Trust (the "Trust"). Mr. Huai disclaims beneficial ownership of the shares held by the Trust. Since August 2001, Mr. Huai has been a Director and our President and Chief Executive Officer. Mr. Huai joined FalconStor, Inc. in July 2000 as a director, and subsequently became its president and chief executive officer in December 2000. (3) Based upon information contained in a report on a Schedule 13D (the "Wheatley 13D") filed jointly by Barry Rubenstein, Brookwood Partners, L.P. ("Brookwood"), Seneca Ventures ("Seneca"), Wheatley Associates III, L.P. ("Wheatley Associates"), Wheatley Foreign Partners, L.P. ("Wheatley Foreign"), Wheatley Foreign Partners III, L.P. ("Wheatley Foreign III"), Wheatley Partners, L.P. ("Wheatley"), Wheatley Partners II, L.P. ("Wheatley II"), Wheatley Partners III, L.P. ("Wheatley III"), Woodland Partners, Woodland Venture Fund ("Woodland Fund"), and certain other entities with the SEC, and a Form 4 filed by Mr. Rubenstein with the SEC as well as certain other information. Consists of (i) 1,400,903 shares of Common Stock held by Mr. Rubenstein, (ii) 395,217 shares of common stock held by Brookwood, (iii) 642,453 shares of common stock held by Seneca, (iv) 299,809 shares of common stock held by Wheatley Associates, (v) 41,008 shares of common stock held by Wheatley Foreign, (vi) 293,012 shares of common stock held by Wheatley Foreign III, (vii) 484,051 shares of common stock held by Wheatley, (viii) 180,089 shares of common stock held by Wheatley II, (ix) 1,370,015 shares of common stock held by Wheatley III, (x) 692,983 shares of common stock held by Woodland Partners and (xi) 743,513 shares of common stock held by Woodland Fund. Does not include 1,258 shares of common stock held by Mr. Rubenstein's spouse, Marilyn Rubenstein. Mr. Rubenstein disclaims beneficial ownership of the securities held by Wheatley, Wheatley Foreign, Wheatley II, Wheatley III, Wheatley Foreign III, Wheatley Associates, Seneca, Woodland Ventures, Woodland Partners and Brookwood except to the extent of his respective equity interest therein. (4) Based upon information contained in the Wheatley 13D and certain other information. (5) Based upon information contained in the Wheatley 13D. Consists of (i) 299,809 shares of common stock held by Wheatley Associates, (ii) 293,012 shares of common stock held by Wheatley Foreign III and (iii) 1,370,015 shares of common stock held by Wheatley III. Wheatley Associates disclaims beneficial ownership of the securities held by Wheatley Foreign III and Wheatley III. Wheatley Foreign III disclaims beneficial ownership of the securities held by Wheatley Associates and Wheatley III. Wheatley III disclaims beneficial ownership of the securities held by Wheatley Associates and Wheatley Foreign III. (6) Based upon information contained in the Wheatley 13D and certain other information. Consists of (i) 41,008 held by Wheatley Foreign, and (ii) 484,051 held by Wheatley. Wheatley Foreign disclaims beneficial ownership of the securities held by Wheatley and Wheatley disclaims beneficial ownership of the shares held by Wheatley Foreign. (7) Based upon information contained in the Wheatley 13D and certain other information. Consists of (i) 1,934,705 shares of Common Stock held by Irwin Lieber, (ii) 484,051 shares of Common Stock held by Wheatley, 5 (iii) 41,008 shares of Common Stock held by Wheatley Foreign, (iv) 180,089 shares of Common Stock held by Wheatley II, (v) 1,370,015 shares of Common Stock held by Wheatley III, (vi) 293,012 shares of Common Stock held by Wheatley Foreign III, and (vii) 299,809 shares of Common Stock held by Wheatley Associates. Mr. Lieber disclaims beneficial ownership of the securities held by Wheatley, Wheatley Foreign, Wheatley II, Wheatley III, Wheatley Foreign III and Wheatley Associates, except to the extent of his respective equity interests therein. (8) Based upon information contained in the Wheatley 13D and certain other information. Consists of (i) 469,680 shares of Common Stock held by Barry Fingerhut, (ii) 484,051 shares of Common Stock held by Wheatley, (iii) 41,008 shares of Common Stock held by Wheatley Foreign, (iv) 180,089 shares of Common Stock held by Wheatley II, (v) 1,370,015 shares of Common Stock held by Wheatley III, (vi) 293,012 shares of Common Stock held by Wheatley Foreign III, (vii) 299,809 shares of Common Stock held by Wheatley Associates, and (viii) 20,000 shares held by a partnership in which Mr. Fingerhut is a general partner. Mr. Fingerhut disclaims beneficial ownership of the securities held by Wheatley, Wheatley Foreign, Wheatley II, Wheatley III, Wheatley Foreign III, Wheatley Associates and the partnership, except to the extent of his respective equity interests therein. Does not include 5,000 shares held by the spouse of Mr. Fingerhut. (9) Based upon information contained in the Wheatley 13D and certain other information. Consists of (i) 94,744 shares of Common Stock held by Nancy Casey and her husband, as joint tenants, (ii) 1,370,015 shares of Common Stock held by Wheatley III, (iii) 293,012 shares of Common Stock held by Wheatley Foreign III, and (iv) 299,809 shares of Common Stock held by Wheatley Associates. Ms. Casey disclaims beneficial ownership of the securities held by Wheatley III, Wheatley Foreign III and Wheatley Associates, except to the extent of her respective equity interests therein. (10) Based upon information contained in the Wheatley 13D and certain other information. Consists of (i) 86,622 shares of Common Stock held by Seth Lieber, (ii) 484,051 shares of Common Stock held by Wheatley, (iii) 41,008 shares of Common Stock held by Wheatley Foreign, (iv) 180,089 shares of Common Stock held by Wheatley II, (v) 1,370,015 shares of Common Stock held by Wheatley III, (vi) 293,012 shares of Common Stock held by Wheatley Foreign III, and (vii) 299,809 shares of Common Stock held by Wheatley Associates and (viii) 259,868 shares of Common Stock held by Applegreen. Mr. Lieber disclaims beneficial ownership of the securities held by Wheatley, Wheatley Foreign, Wheatley II, Wheatley III, Wheatley Foreign III, Wheatley Associates and Applegreen, except to the extent of his respective equity interests therein. (11) Based upon information contained in the Wheatley 13D and certain other information. Consists of (i) 484,051 shares of Common Stock held by Wheatley, (ii) 41,008 shares of Common Stock held by Wheatley Foreign, (iii) 180,089 shares of Common Stock held by Wheatley II, (iv) 1,370,015 shares of Common Stock held by Wheatley III, (v) 293,012 shares of Common Stock held by Wheatley Foreign III, and (vi) 299,809 shares of Common Stock held by Wheatley Associates and (vii) 259,868 shares of Common Stock held by Applegreen. Mr. Lieber disclaims 6 beneficial ownership of the securities held by Wheatley, Wheatley Foreign, Wheatley II, Wheatley III, Wheatley Foreign III, Wheatley Associates and Applegreen, except to the extent of his respective equity interests therein. (12) Based upon information contained in the Wheatley 13D and certain other information. Consists of (i) 1,258 shares of Common Stock held by Marilyn Rubenstein, (ii) 642,453 shares of Common Stock held by Seneca, (iii) 743,513 shares of Common Stock held by Woodland Venture, (iv) 692,983 shares of Common Stock held by Woodland Partners and (v) 395,217 of Common Stock held by Brookwood. Mrs. Rubenstein disclaims beneficial ownership of the securities held by Seneca, Woodland Venture, Woodland Partners and Brookwood, except to the extent of her respective equity interests therein. Does not include 1,800,903 shares of Common Stock held by Mrs. Rubenstein's spouse, Barry Rubenstein. (13) Based on information contained in Forms 4 filed by Mr. Dolin and certain other information. Consists of (i) 40,000 shares held by Northern Union Club and (ii) presently exercisable options or options exercisable within 60 days hereof to purchase 70,311 shares. Mr. Dolin is a general partner of Mordo Partners, which is a general partner of Northern Union Club. Mr. Dolin disclaims beneficial ownership of the securities held by Northern Union Club, except to the extent of his respective equity interests therein. Mr. Dolin joined the Company in August 2001 as a director. (14) Based upon information contained in Forms 4 filed by Mr. Fischer and certain other information. Includes presently exercisable options or options exercisable within 60 days hereof to purchase 55,311 shares. Excludes 1,000 shares of common stock held by Mr. Fischer as custodian for his daughter. Mr. Fischer joined the Company in August 2001 as a director. (15) Based upon information contained in the Form 4 filed by Mr. Penisten and certain other information. Includes 180,464 shares of common stock held by Lazy P Investors, L.P. and an option to purchase 386,667 shares of common stock within 60 days. Mr. Penisten is a general partner of Lazy P Investors, L.P. (16) Based upon information contained in the Form 4 filed by Mr. Wayne Lam and certain other information. Includes options to purchase 505,843 shares of common stock. Mr. Wayne Lam joined FalconStor, Inc. in April 2000 as Vice President, Marketing and is currently a Vice President of the Company. The following table names the ultimate beneficial owners of the shares of our Common Stock for those Selling Stockholders that are not individuals. NAME OF THE ENTITY INFORMATION Brookwood Partners, L.P. Mr. Barry Rubenstein Mrs. Marilyn Rubenstein Seneca Ventures Mr. Barry Rubenstein Wheatley Associates III, L.P. Mr. Barry Rubenstein Mr. Irwin Lieber Mr. Barry Fingerhut Mr. Jonathan Lieber Mr. Seth Lieber Ms. Nancy Casey Wheatley Foreign Partners, L.P. Mr. Barry Rubenstein Mr. Irwin Lieber Mr. Barry Fingerhut Mr. Jonathan Lieber Mr. Seth Lieber Wheatley Foreign Partners III, L.P. Mr. Barry Rubenstein Mr. Irwin Lieber Mr. Barry Fingerhut Mr. Jonathan Lieber Mr. Seth Lieber Ms. Nancy Casey Wheatley Partners, L.P. Mr. Barry Rubenstein Mr. Irwin Lieber Mr. Barry Fingerhut Mr. Jonathan Lieber Mr. Seth Lieber Wheatley Partners II, L.P. Mr. Barry Rubenstein Mr. Irwin Lieber Mr. Barry Fingerhut Mr. Jonathan Lieber Mr. Seth Lieber Wheatley Partners III, L.P. Mr. Barry Rubenstein Mr. Irwin Lieber Mr. Barry Fingerhut Mr. Jonathan Lieber Mr. Seth Lieber Ms. Nancy Casey Woodland Partners Mr. Barry Rubenstein Mrs. Marilyn Rubenstein Woodland Venture Fund Mr. Barry Rubenstein Applegreen Partners Mr. Seth Lieber Mr. Jonathan Lieber
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424B3 Filing
Falconstor Software (FALC) 424B3Prospectus supplement
Filed: 16 Nov 05, 12:00am