As filed with the Securities and Exchange Commission on April 6, 2000
Registration No. 333-____________
================================================================================
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)
DELAWARE 13-3861628
(State or Other Jurisdiction (IRS Employer Identification No.)
of Incorporation or Organization)
462 SEVENTH AVENUE, 10TH FLOOR
NEW YORK, NY 10018-7606
(Address of Principal Executive Offices) (Zip Code)
LIVEPERSON, INC.
2000 STOCK INCENTIVE PLAN
EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plans)
ROBERT P. LOCASCIO
CHIEF EXECUTIVE OFFICER
LIVEPERSON, INC.
462 SEVENTH AVENUE, 10TH FLOOR
NEW YORK, NY 10018-7606
(Name and Address of Agent for Service)
(212) 277-8950
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
================================================================================
Proposed Proposed
Title of Each Class of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
REGISTERED REGISTERED(1) PER SHARE PRICE(2) FEE
- ----------------------------------- ---------------------- --------------------- --------------------- ---------------------
2000 STOCK INCENTIVE PLAN
Common Stock, $0.001 par value 10,000,000 shares $8.00 (2) $80,000,000.00 (2) $21,120.00
EMPLOYEE STOCK PURCHASE PLAN
Common Stock, $0.001 par value 450,000 shares $8.00 (2) $3,600,000.00 (2) $950.40
Aggregate Registration Fee $22,070.40
================================================================================
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the Registrant's 2000 Stock
Incentive Plan and the 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 outstanding shares of
Registrant's Common Stock.
(2) Calculated solely for purposes of this offering under Rule 457(h) of
the Securities Act of 1933, as amended, on the basis of the highest
proposed selling price per share of Registrant's Common Stock.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
LivePerson, Inc. (the "Registrant") hereby incorporates by
reference into this Registration Statement the following documents previously
filed with the Securities and Exchange Commission (the "Commission"):
(a) The Registrant's Registration Statement No. 333-95689 on
Form S-1 filed with the Commission on January 28, 2000, as
amended on Form S-1/A filed with the Commission on March
10, 2000, March 13, 2000, March 28, 2000, April 6, 2000,
April 6, 2000 and April 6, 2000 (the "S-1 Registration
Statement"), in which there is set forth the audited
financial statements for the Registrant as of December 31,
1998 and 1999 and for each of the years in three-year
period ended December 31, 1999;
(b) The Registrant's Registration Statement No. 000-30141 on Form
8-A filed with the Commission on March 28, 2000 pursuant to
Section 12(g) of the Securities Exchange Act of 1934 (the
"Exchange Act"), in which there is described the terms,
rights, and provisions applicable to the Registrant's
outstanding Common Stock.
All reports and definitive proxy or information statements
filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange
Act of 1934, as amended (the "1934 Act"), after the date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which de-registers all
securities then remaining unsold shall be deemed to be incorporated by reference
into this Registration Statement and to be a part hereof from the date of filing
of such documents. Any statement contained in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any subsequently filed document which also is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such 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, and the Registrant's amended
and restated certificate of incorporation to be in effect upon the closing of
the offering registered on the S-1 Registration Statement (the "Certificate")
provide 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.
II-1
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.
At present, there is no pending litigation or proceeding
involving any director, officer, employee or agent as to which indemnification
will be required or permitted under the Certificate or the aforementioned
indemnification agreements. The Registrant is not aware of any threatened
litigation or proceeding that may result in a claim for such indemnification.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
Item 8. EXHIBITS
EXHIBIT NUMBER EXHIBIT
4 Instruments Defining the Rights of Stockholders.
Reference is made to Registrant's Registration
Statement No. 000-30141 on Form 8-A, together with
the exhibits thereto, which are incorporated herein
by reference pursuant to Item 3(b) to this
Registration Statement.
5 Opinion and Consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of KPMG LLP, Independent Public Accountants.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this Registration Statement.
99.1 LivePerson, Inc. 2000 Stock Incentive Plan
99.2 LivePerson, Inc. Employee Stock Purchase Plan.
Item 9. UNDERTAKINGS
A. 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 1933 Act, (ii) to reflect in the prospectus any facts
or events arising after the effective date of this 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 this
Registration Statement and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in this
Registration Statement; provided, however, that clauses (1)(i) and (1)(ii) shall
not apply if the information required to be included in a post-effective
amendment by those clauses is contained in periodic reports filed by the
Registrant pursuant to Section 13
II-2
or Section 15(d) of the 1934 Act that are incorporated by reference into this
Registration Statement; (2) that for the purpose of determining any liability
under the 1933 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; and (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 Registrant's 2000 Stock Incentive Plan or
Employee Stock Purchase Plan.
B. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the 1933 Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
1934 Act that is incorporated by reference into this 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.
C. Insofar as indemnification for liabilities arising under
the 1933 Act may be permitted to directors, officers or controlling persons of
the Registrant pursuant to the indemnification provisions summarized in Item 6
or otherwise, the Registrant has been advised that, in the opinion of the
Commission, such indemnification is against public policy as expressed in the
1933 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 1933 Act and
will be governed by the final adjudication of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, 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 the City of New York, State of New York on this
6th day of April, 2000.
LIVEPERSON, INC.
By: /s/ Robert P. LoCascio
--------------------------
Robert P. LoCascio
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That each person whose signature appears below constitutes and
appoints Robert P. LoCascio, President and Chief Executive Officer, and Timothy
E. Bixby, Executive Vice President, Chief Financial Officer and Secretary, and
each of them, as such person's true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for such person and in such
person's name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement,
and to file same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as such person might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his or her
substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons on behalf of the Registrant and in the capacities and on the dates
indicated:
SIGNATURE TITLE DATE
/s/ Robert P. LoCascio President, Chief Executive Officer April 6, 2000
- ----------------------------- and Chairman of the Board of Directors
Robert P. LoCascio (principal executive officer)
/s/ Timothy E. Bixby Executive Vice President, Chief April 6, 2000
- -----------------------------
Timothy E. Bixby Financial Officer, Secretary and Director
(principal financial and accounting officer)
/s/ Richard L. Fields Director April 6, 2000
- -----------------------------
Richard L. Fields
/s/ Wycliffe K. Grousbeck Director April 6, 2000
- -----------------------------
Wycliffe K. Grousbeck
II-4
/s/ Kevin C. Lavan Director April 6, 2000
- -----------------------------
Kevin C. Lavan
/s/ Robert W. Matschullat Director April 6, 2000
- -----------------------------
Robert W. Matschullat
/s/ Edward G. Sim Director April 6, 2000
- -----------------------------
Edward G. Sim
II-5
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
LIVEPERSON, INC.
EXHIBIT INDEX
EXHIBIT NUMBER EXHIBIT
4 Instruments Defining the Rights of Stockholders.
Reference is made to Registrant's Registration
Statement No. 000-30141 on Form 8-A, together with
the exhibits thereto, which are incorporated herein
by reference pursuant to Item 3(b) to this
Registration Statement.
5 Opinion and Consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of KPMG LLP, Independent Public Accountants.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this Registration Statement.
99.1 LivePerson, Inc. 2000 Stock Incentive Plan
99.2 LivePerson, Inc. Employee Stock Purchase Plan.