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) May 14, 2002
---------------------------------------------------------------------------------
LivePerson, Inc.
------------------------------------------------------------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 0-30141 13-3861628
---------------------------------------------- ----------------------------------------------- -------------------------------------
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
462 Seventh Avenue, 21st Floor, New York, New York 10018
--------------------------------------------------------------------------------------------------------- --------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (212) 609-4200
------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
(Former name or former address, if changed since last report)
ITEM 5. OTHER EVENTS.
On May 14, 2002, LivePerson, Inc. ("LivePerson") applied to The Nasdaq
Stock Market, Inc. ("Nasdaq") to transfer the listing of its common stock from
the Nasdaq National Market (the "NNM") to the Nasdaq SmallCap Market (the
"SmallCap Market"). LivePerson's common stock will continue to be listed on the
NNM pending review by Nasdaq of the application. If Nasdaq notifies LivePerson
that its application is approved, LivePerson expects that its common stock would
commence trading on the SmallCap Market shortly thereafter.
LivePerson determined to apply voluntarily for transfer to the SmallCap
Market so as to avoid anticipated NNM delisting proceedings and to take
advantage of the SmallCap Market rule which provides an extended grace period
for the minimum $1.00 per share bid price requirement. Nasdaq notified
LivePerson on February 14, 2002, that during the preceding 30 consecutive
trading days the bid price of LivePerson's common stock had closed below the
minimum bid price of $1.00 per share. Nasdaq's notice stated that LivePerson had
until May 15, 2002 to demonstrate compliance with the bid price rule and that,
if LivePerson was not in compliance by that date, Nasdaq would notify LivePerson
that its securities will be delisted from the NNM.
The application to transfer to the SmallCap Market will stay NNM
delisting proceedings. In addition, if the transfer application is approved,
LivePerson will be afforded the 180 calendar day grace period for the bid price
requirement available to companies listed on the SmallCap Market, which
commences with the February 14, 2002 notice, or until August 13, 2002. After
that, LivePerson could also be eligible for an additional 180 calendar day grace
period provided that at such time it meets the initial listing requirements for
the SmallCap Market under Nasdaq Marketplace Rule 4310(c)(2)(A), which requires
generally, an issuer to have (i) stockholders' equity of $5 million, (ii) a
market capitalization of $50 million or (iii) net income of $750,000 (excluding
extraordinary or non-recurring items) in the most recently completed fiscal year
or in two of the three most recently completed fiscal years. LivePerson could
also be eligible to transfer the listing for its common stock back to the NNM,
without paying initial listing fees, if by February 10, 2003, the bid price for
LivePerson's common stock maintains the $1.00 per share requirement for 30
consecutive trading days and LivePerson maintains compliance with all other
continued listing requirements for the NNM.
If the Nasdaq staff does not approve the transfer application, Nasdaq
would at that time notify LivePerson that its securities will be delisted from
the NNM. If such event occurs, LivePerson may appeal the decision to a Nasdaq
Listing Qualifications Panel.
On April 22, 2002, LivePerson mailed to its stockholders its Proxy
Statement (the "Proxy Statement") in respect of its Annual Meeting of
Stockholders to be held on May 23, 2002 (the "Annual Meeting"). One of the
purposes of the Annual Meeting, as set forth in the Proxy Statement, is to
consider and vote upon separate proposals to amend LivePerson's Fourth Amended
and Restated Certificate of Incorporation to effect, alternatively, one of three
different reverse splits of the outstanding shares of LivePerson's common stock,
at a ratio of one-for-three, one-for-five and one-for-seven, to be determined
from among any of the proposals approved by the stockholders, or not to effect a
reverse split at all, at the discretion of LivePerson's Board of Directors (each
such proposal, a "Reverse Split Proposal" and collectively, the "Reverse Split
Proposals"). As set forth in the Proxy Statement, the principal purpose of each
Reverse Split Proposal is to increase the market price of the common stock above
the minimum bid requirement of $1.00 per share required by Nasdaq. The
requirement applies to securities quoted on either the NNM or the SmallCap
Market, and does not change the effects, risks and other information relating to
the Reverse Split Proposals described in the Proxy Statement. Accordingly, the
steps taken by LivePerson in connection with the application to transfer the
listing of its common stock to the SmallCap Market do not change the
recommendation of the LivePerson Board of Directors that stockholders vote in
favor of each of the Reverse Split Proposals at the Annual Meeting.
The information relating to the Reverse Splits Proposals contained in
the Proxy Statement, specifically including the information under the captions
"Purposes of the Reverse Split" and "Certain Effects and Risks of the Reverse
Split," is hereby incorporated by reference into this Report on Form 8-K.
A copy of the press release issued by LivePerson concerning the
foregoing is filed herewith as Exhibit 99.1 and is incorporated herein by
reference.
FORWARD-LOOKING STATEMENTS
Statements in this report regarding LivePerson that are not historical
facts are forward-looking statements based on our current expectations,
assumptions, estimates and projections about LivePerson and our industry. These
forward-looking statements are subject to risks and uncertainties that could
cause actual future events or results to differ materially from such statements.
Any such forward-looking statements are made pursuant to the safe harbor
provisions of the Private Securities Litigation Reform Act of 1995. It is
routine for our internal projections and expectations to change as the quarter
progresses, and therefore it should be clearly understood that the internal
projections and beliefs upon which we base our expectations may change prior to
the end of the quarter. Although these expectations may change, we are under no
obligation to inform you if they do. Our company policy is generally to provide
our expectations only once per quarter, and not to update that information until
the next quarter. Actual events or results may differ materially from those
contained in the projections or forward-looking statements. The following
factors, among others, could cause LivePerson's actual results to differ
materially from those described in a forward-looking statement: our possible
delisting from Nasdaq; the limited history of providing the LivePerson services;
our limited historical annual revenue and history of losses; the possible
unavailability of financing as and if needed; an unproven business model; our
dependence on the success of the LivePerson chat service; continued use by our
clients of the LivePerson services; potential fluctuations in our quarterly and
annual results; risks related to adverse business conditions experienced by our
clients; our dependence on key employees; risks related to our international
operation, particularly our operations in Tel Aviv, Israel, and the current
civil and political unrest in that region; competition both for qualified
personnel and in the market for real-time sales and customer service technology;
building awareness of the LivePerson brand name; technology systems beyond
LivePerson's control and technology-related defects that could disrupt the
LivePerson services; our dependence on the growth of the Internet as a medium
for commerce and the viability of the infrastructure of the Internet; and
responding to rapid technological change. This list is intended to identify only
certain of the principal factors that could cause actual results to differ from
those discussed in the forward-looking statements. Readers are referred to the
reports and documents filed from time to time by LivePerson with the Securities
and Exchange Commission for a discussion of these and other important risk
factors that could cause actual results to differ from those discussed in
forward-looking statements.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) The following document is filed as an exhibit to this report:
99.1 Press release dated May 17, 2002.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
LIVEPERSON, INC.
------------------------------------------------
(Registrant)
May 17, 2002 /s/ TIMOTHY E. BIXBY
------------------------------ ------------------------------------------------
Date Timothy E. Bixby
President, Chief Financial Officer and Secretary
EXHIBIT INDEX
EXHIBIT
99.1 Press release dated May 17, 2002.