Unassociated Document
As filed
with the Securities and Exchange Commission on August 19, 2010
Registration
No. 333-_____
UNITED
STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
FORM S-8
REGISTRATION
STATEMENT UNDER
THE
SECURITIES ACT OF 1933
LivePerson,
Inc.
(Exact
Name of Registrant as Specified in Its Charter)
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Delaware
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13-3861628
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(State
or Other Jurisdiction of Incorporation or Organization)
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(I.R.S.
Employer Identification No.)
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462
Seventh Avenue
3rd
Floor
New
York, New York
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10018
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(Address
of Principal Executive Offices)
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(Zip
Code)
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LivePerson,
Inc. 2010 Employee Stock Purchase Plan
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(Full
Title of the Plan)
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Monica
L. Greenberg, Esq.
Senior
Vice President and General Counsel
LivePerson,
Inc.
462
Seventh Avenue, 3rd Floor
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New
York, New York 10018
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(Name
and Address of Agent for Service)
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(212) 609-4200
(Telephone
Number, Including Area Code, of Agent For Service)
Copy to:
Brian
Margolis Esq.
Orrick,
Herrington & Sutcliffe LLP
51
West 52nd Street
New
York, NY
10019-6142
(212)
506-5000
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 the definitions of “large accelerated filer”,
“accelerated filer” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act.
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Large
accelerated filer o
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Accelerated
filer
þ
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Non-accelerated
filer o
(Do not check if smaller reporting company)
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Smaller
reporting company o
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CALCULATION
OF REGISTRATION FEE
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Title
of Securities to be Registered
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Amount
to be
Registered
(1)
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Proposed
Maximum Offering
Price
Per Share
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Proposed
Maximum Aggregate Offering Price
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Amount
of Registration Fee
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Common
Stock, $0.001 par value per share
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1,000,000
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$5.895 (2)
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$5,894,750
(2)
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$421
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(1)
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This
registration statement shall also cover any additional shares of Common
Stock which become issuable under the LivePerson, Inc. 2010 Employee Stock
Purchase Plan by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without the
Registrant’s receipt of consideration which results in an increase in the
number of the Registrant’s outstanding shares of Common
Stock.
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(2)
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Solely
for the purpose of calculating the registration fee, the estimated
Proposed Maximum Offering Price Per Share was calculated pursuant to Rules
457(c) and 457(h) under the Securities Act of 1933, as amended, on the
basis of $5.895 per share, which is $6.935 per share, the average of the
high and low price of the Common Stock on the Nasdaq Capital Market on
August 16, 2010, multiplied by 85%, which is the percentage used to
calculate the purchase price under the LivePerson, Inc. 2010 Employee
Stock Purchase Plan.
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PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item
1. Plan Information.
The
information required by Item 1 is included in documents sent or given to
participants in the plan covered by this registration statement pursuant to Rule
428(b)(1) of the Securities Act of 1933, as amended (the “Securities
Act”).
Item
2. Registrant Information and Employee Plan Annual Information.
The
written statement required by Item 2 is included in documents sent or given to
participants in the plan covered by this registration statement pursuant to Rule
428(b)(1) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
Item 3. Incorporation of Documents by
Reference.
The
Registrant is subject to the informational and reporting requirements of
Sections 13(a), 14, and 15(d) of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), and in accordance therewith files reports, proxy
statements and other information with the Securities and Exchange Commission
(the “Commission”). The following documents, which are on file
with the Commission, are incorporated in this registration statement by
reference:
(a) The
Registrant’s latest annual report filed pursuant to Section 13(a) or 15(d)
of the Exchange Act or the latest prospectus filed pursuant to Rule 424(b)
under the Securities Act that contains audited financial statements for the
Registrant’s latest fiscal year for which such statements have been
filed.
(b) All
other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since
the end of the fiscal year covered by the document referred to in (a)
above.
(c) The
description of the securities contained in the Registrant’s registration
statement on Form 8-A filed under the Exchange Act, including any amendment or
report filed for the purpose of updating such description.
All
documents subsequently filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this registration statement and to be part hereof
from the date of the filing of such documents, except as to specific sections of
such statement as set forth therein. Unless expressly incorporated
into this registration statement, a report furnished on Form 8-K prior or
subsequent to the date hereof shall not be incorporated by reference into this
registration statement. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for the purposes of this registration statement to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this registration statement.
Item 4. Description of
Securities.
Not applicable.
Item 5. Interests of Named Experts and
Counsel.
Not applicable.
Item 6. Indemnification of Directors and
Officers.
The
Registrant’s amended and restated certificate of incorporation in effect as of
the date hereof (the “Certificate”) provides that, except to the extent
prohibited by the Delaware General Corporation Law, as amended (the “DGCL”), the
Registrant’s directors shall not be personally liable to the Registrant or its
stockholders for monetary damages for any breach of fiduciary duty as directors
of the Registrant. Under the DGCL, the directors have a fiduciary duty to the
Registrant which is not eliminated by this provision of the Certificate and, in
appropriate circumstances, equitable remedies such as injunctive or other forms
of non-monetary relief will remain available. In addition, each director will
continue to be subject to liability under the DGCL for any breach of the
director’s duty of loyalty to the Registrant or its stockholders, for acts or
omissions not in good faith or which involve intentional misconduct, for knowing
violations of law, for actions leading to improper personal benefit to the
director, and for payment of dividends or approval of stock repurchases or
redemptions that are prohibited by the DGCL. This provision also does not affect
the directors’ responsibilities under any other laws, such as the Federal
securities laws or state or Federal environmental laws. The Registrant has
obtained liability insurance for its officers and directors.
Section
145 of the DGCL empowers a corporation to indemnify its directors and officers
and to purchase insurance with respect to liability arising out of their
capacity or status as directors and officers, provided that this provision shall
not eliminate or limit the liability of a director: (i) for any breach of the
director’s duty of loyalty to the corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) arising under Section 174 of the DGCL, or (iv)
for any transaction from which the director derived an improper personal
benefit. The DGCL provides further that the indemnification permitted thereunder
shall not be deemed exclusive of any other rights to which the directors and
officers may be entitled under the corporation’s bylaws, any agreement, a vote
of stockholders or otherwise. The Certificate eliminates the personal liability
of directors to the fullest extent permitted by Section 102(b)(7) of the DGCL
and provides that the Registrant shall, to the fullest extent permitted by the
DGCL, fully indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding
(whether civil, criminal, administrative or investigative) by reason of the fact
that such person is or was, or has agreed to become, a director or officer of
the Registrant, or is or was serving at the request of the Registrant as a
director, officer or trustee of or, in a similar capacity with, another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, or by reason of any action alleged to have been taken or omitted in
such capacity, against all expenses (including attorney’s fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by or on
behalf of such person in connection with such action, suit or proceeding and any
appeal therefrom.
The
Registrant has also entered into agreements to indemnify its directors and
executive officers, in addition to the indemnification provided for in the
Certificate. The Registrant believes that these agreements are necessary to
attract and retain qualified directors and executive officers.
Item 7. Exemption from Registration
Claimed.
Not applicable.
Item 8. Exhibits.
The Exhibit Index immediately preceding
the exhibits is incorporated herein by reference.
Item 9. Undertakings.
1. Item
512(a) of Regulation S-K. The undersigned Registrant hereby
undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To
include any prospectus required by Section 10(a)(3) of the Securities
Act;
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
dollar value of securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed with the SEC pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price represent no
more than a 20 percent change in the maximum aggregate offering price set forth
in the “Calculation of Registration Fee” table in the effective registration
statement; and
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement;
provided, however, that
paragraphs (i) and (ii) do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained in reports filed
with or furnished to the Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in the
registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act, each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
2. Item
512(b) of Regulation S-K. The undersigned Registrant hereby
undertakes that, for purposes of determining any liability under the Securities
Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
3. Item
512(h) of Regulation S-K. Insofar as indemnification for
liabilities arising under the Securities Act may be permitted to directors,
officers and controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such
issue.
Pursuant to the requirements of the
Securities Act, the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-8 and has
duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in New York, New York, on the 19th day
of August, 2010.
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LIVEPERSON,
INC.
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By:
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/s/
Robert P. LoCascio
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Robert
P. LoCascio
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Chairman
of the Board and Chief Executive
Officer
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POWER
OF ATTORNEY AND SIGNATURES
We, the
undersigned officers and directors of LivePerson, Inc., hereby severally
constitute and appoint Robert P. LoCascio, Timothy E. Bixby and Monica L.
Greenberg, and each of them singly, our true and lawful attorneys with full
power to them, and each of them singly, to sign for us and in our names in the
capacities indicated below, the registration statement on Form S-8 filed
herewith and any and all subsequent amendments to said registration statement,
and generally to do all such things in our names and on our behalf in our
capacities as officers and directors to enable LivePerson, Inc. to comply with
the provisions of the Securities Act of 1933, as amended, and all requirements
of the Securities and Exchange Commission, hereby ratifying and confirming our
signatures as they may be signed by our said attorneys, or any of them, to said
registration statement and any and all amendments thereto.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement
has been signed by the following persons in the capacities and on the dates
indicated.
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Signature
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Title
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Date
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/s/
Robert P. LoCascio
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Chairman
of the Board and Chief Executive Officer
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August
19, 2010
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Robert
P. LoCascio
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/s/
Timothy E. Bixby
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President,
Chief Financial Officer and Director
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Timothy
E. Bixby
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/s/ Emmanuel Gill
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Director
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Emmanuel
Gill
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/s/
William G. Wesemann
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Director
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William
G. Wesemann
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/s/
Steven Berns
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Director
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Steven
Berns
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/s/
Kevin C. Lavan
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Director
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Kevin
C. Lavan
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/s/
Peter Block
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Director
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Peter
Block
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INDEX TO EXHIBITS
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Number
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Description
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4.1
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Fourth
Amended and Restated Certificate of Incorporation (incorporated by
reference to Exhibit 3.1 to the Registrant’s Annual Report on Form 10-K
for the fiscal year ended December 31, 2000 and filed March 30, 2001 (the
“2000 Form 10-K”))
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4.2
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Second
Amended and Restated Bylaws, as amended (incorporated by reference to
Exhibit 3.2 to the 2000 Form 10-K)
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5.1
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Opinion
of Orrick, Herrington & Sutcliffe LLP, counsel to the
Registrant
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23.1
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Consent
of BDO USA, LLP (formerly known as BDO Seidman, LLP), Independent
Registered Public Accounting Firm
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23.2
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Consent
of Orrick, Herrington & Sutcliffe LLP (included in Exhibit 5.1 to this
registration statement)
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24
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Power
of attorney (included on the signature pages of this registration
statement)
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99.1
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LivePerson,
Inc. 2010 Employee Stock Purchase
Plan
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