As
filed with the Securities and Exchange Commission on December 7,
2007
Registration
No. 333-_____
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
LIVEPERSON,
INC.
(Exact
Name of Registrant as Specified in Its Charter)
|
Delaware
(State
or Other Jurisdiction of
Incorporation
or Organization)
|
462
Seventh Avenue, 3rd
Floor
New
York, New York 10018
(212)
609-4200
(Address,
Including Zip Code, and Telephone Number, Including
Area
Code, of Registrant’s Principal Executive Offices)
|
13-3861628
(I.R.S.
Employer Identification
Number)
|
Robert
P. LoCascio
Chief
Executive Officer
LivePerson,
Inc.
462
Seventh Avenue, 3rd Floor
New
York, New York 10018
(212)
230-8800
(Name,
Address, Including Zip Code, and Telephone Number, Including Area Code, of
Agent
for Service)
Copy
to:
|
Brian
B. Margolis, Esq.
Wilmer
Cutler Pickering Hale and Dorr LLP
399
Park Avenue
New
York, New York 10022
Telephone:
(212) 937-7239
|
Approximate
date of commencement of proposed sale to the public:
At such
time or times after the effective date of this Registration Statement as the
selling stockholders shall determine.
Approximate
date of commencement of proposed sale to the public: At such time or times
after
the effective date of this Registration Statement as the selling stockholders
shall determine. ¨
If
any of
the securities being registered on this form are to be offered on a delayed
or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. x
If
this
form is filed to register additional securities for an offering pursuant to
Rule
462(b) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. ¨
If
this
form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. ¨
If
this
Form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. ¨
If
this
Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. ¨
If
this
Form is a post-effective amendment to a registration statement filed pursuant
to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check
the following box. ¨
CALCULATION
OF REGISTRATION FEE
|
Title
of each class of
securities
to be registered
|
|
Amount
to
be Registered
|
|
Proposed
Maximum
Offering
Price Per Unit
|
|
Proposed
Maximum
Aggregate
Offering Price
|
|
Amount
of
Registration
Fee
|
|
|
Common
Stock, $0.001 par
value
per share
|
|
|
4,130,776(1
|
)
|
$
|
5.11(2
|
)
|
$
|
21,108,265(2
|
)
|
$
|
648
|
|
|
(1)
|
All
of the shares of common stock offered hereby are for the account
of
selling stockholders.
|
|
(2)
|
Estimated
solely for purposes of the registration fee for this offering in
accordance with Rule 457(c) of the Securities Act on the basis of
the
average of the high and low prices of the registrant’s common stock on the
Nasdaq Capital Market on December 4,
2007.
|
The
Registrant hereby amends this Registration Statement on such date or dates
as
may be necessary to delay its effective date until the Registrant shall file
a
further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
The
information in this prospectus is not complete and may be changed. The selling
stockholders named in this prospectus may not sell these securities until the
registration statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these securities and the
selling stockholders named in this prospectus are not soliciting an offer to
buy
these securities in any state where the offer or sale is not
permitted.
Subject
To Completion, dated December 7, 2007
PROSPECTUS
LIVEPERSON,
INC.
4,130,776
SHARES OF COMMON STOCK
This
prospectus relates to the resale, from time to time, of up to 4,130,776 shares
of common stock previously issued by LivePerson, Inc. to the former stockholders
of Kasamba Inc., a Delaware corporation, in connection with a private placement
completed on October 3, 2007. Our registration of the resale of the shares
held
by the selling stockholders is required by the definitive Agreement and Plan
of
Merger, dated as of June 25, 2007 (the “Merger Agreement”), between LivePerson,
Kasamba, Kato MergerCo, Inc., an indirect, wholly-owned subsidiary of
LivePerson, and Yoav Leibovich as the Kasamba shareholders’ representative,
pursuant to which LivePerson acquired Kasamba in a merger transaction. Pursuant
to the Merger Agreement, we issued 4,130,776 shares of common stock to the
selling stockholders who are former stockholders of Kasamba at the closing
of
the merger transaction on October 3, 2007.
We
will
not receive any proceeds from the sale of the shares of common stock covered
by
this prospectus.
The
selling stockholders may offer their shares through public or private
transactions at prevailing market prices or at privately negotiated prices.
The
selling stockholders may make sales directly to purchasers or through brokers,
agents, dealers or underwriters or through a combination of these methods.
The
selling stockholders will bear all commissions and other compensation paid
to
brokers in connection with the sale of their shares. See “Plan of
Distribution.”
Our
common stock is quoted on the Nasdaq Stock Market under the symbol “LPSN”. On
December 6, 2007, the closing sale price of our common stock on Nasdaq was
$5.36
per share. You are urged to obtain current market quotations for the common
stock.
Investing
in our common stock involves risks. See “Risk Factors” beginning on page
2.
Neither
the Securities and Exchange Commission nor any state securities commission
has
approved or disapproved of these securities or passed upon the adequacy or
accuracy of this prospectus. Any representation to the contrary is a criminal
offense.
The
date
of this prospectus is ________, 2007.
TABLE
OF CONTENTS
Page
|
PROSPECTUS
SUMMARY
|
1
|
|
RISK
FACTORS
|
2
|
|
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
|
14
|
|
USE
OF PROCEEDS
|
14
|
|
SELLING
STOCKHOLDERS
|
15
|
|
PLAN
OF DISTRIBUTION
|
17
|
|
LEGAL
MATTERS
|
20
|
|
EXPERTS
|
20
|
|
WHERE
YOU CAN FIND MORE INFORMATION
|
20
|
|
INCORPORATION
OF DOCUMENTS BY REFERENCE
|
21
|
You
should rely only on the information contained in this prospectus. We have not,
and the selling stockholders have not, authorized anyone to provide you with
information different from that contained in this prospectus. The selling
stockholders are not making an offer to sell or seeking offers to buy these
securities in any jurisdiction where the offer or sale is not permitted. The
information contained in this prospectus is complete and accurate as of the
date
of this prospectus, but the information may have changed since that date.
Unless
the context otherwise indicates, references in this prospectus to the terms
“LivePerson,” “we,” “our” and “us” refer to LivePerson, Inc. and LivePerson’s
subsidiaries. This prospectus contains other product names, trade names, service
marks and trade marks of LivePerson and of other organizations.
PROSPECTUS
SUMMARY
This
summary highlights important features of this offering and the information
included or incorporated by reference in this prospectus. This summary does
not
contain all of the information that you should consider before investing in
our
common stock. You should read the entire prospectus carefully, especially the
risks of investing in our common stock discussed under “Risk
Factors.”
LIVEPERSON,
INC.
LivePerson
helps to maximize the business impact of the online channel as a provider of
hosted software that enables customers to proactively assist their online
visitors. Our proprietary tools and methodology have been proven to increase
sales, customer satisfaction and loyalty while reducing customer service
costs.
Our
fully-integrated multi-channel communications platform, Timpani, facilitates
real-time sales, marketing and customer service. Our technology supports and
manages key online interactions — via chat, voice, email and
self-service/knowledgebase — in a cost-effective and secure
environment.
Since
launching its first product in 1998, LivePerson’s hosted interactions between
potential buyers and sellers have grown to more than four million per month.
This has put LivePerson in a unique position to gain insights into consumer
behavior and develop technology enhancements and best practices which together
result in a higher rate of conversion of visitors to buyers.
Bridging
the gap between visitor traffic and successful online conversions, our solutions
deliver measurable return on investment by enabling clients to:
| |
·
|
improve
online conversion rates and reduce abandonment rates by providing
customer
assistance, including live help on demand;
|
| |
·
|
acquire
and retain customers across multiple online channels;
|
| |
·
|
utilize
a more cost-effective means of providing sales assistance and customer
service; and
|
| |
·
|
increase
customer satisfaction, retention and loyalty by offering real-time
help
online.
|
More
than
5,000 companies, including EarthLink, Hewlett-Packard, Microsoft, Qwest and
Verizon, have implemented our solutions to maximize the return on their
marketing and E-commerce investments.
As
a
Software as a Service (SaaS) provider, LivePerson provides solutions on a hosted
basis, which offers benefits including low up-front costs; fast implementation;
low total cost of ownership (TCO); scalability; cost predictability and
relatively effortless upgrades. Fully hosted and maintained by LivePerson,
our
modular applications can be implemented with little or no client investment
in
server infrastructure or IT resources.
LivePerson
was incorporated in the State of Delaware in November 1995 and the LivePerson
service was initially introduced in November 1998. Our principal executive
offices are located at 462 Seventh Avenue, 3rd
Floor,
New York, New York, 10018. Our telephone number is (212) 609-4200. The address
of our principal website is www.liveperson.com. Our website address is provided
solely for informational purposes, and the information contained on our website
does not constitute part of this prospectus.
RISK
FACTORS
An
investment in our common stock involves a high degree of risk. You should
consider carefully the risks described below, together with the other
information contained in this prospectus, before deciding to invest in our
common stock. These risks could have a material and adverse impact on our
business, results of operations and financial condition. If that were to happen,
the trading price of our common stock could decline, and you could lose all
or
part of your investment.
Risks
Related to Our Business
We
have a history of losses, we had an accumulated deficit of $99.2 million as
of
December 31, 2006 and we may incur losses in the future.
Although
we have achieved profitability in each three-month period from and including
the
period ended September 30, 2003, we may, in the future, incur losses and
experience negative cash flow, either or both of which may be significant.
We
recorded net losses of $6.8 million for the year ended December 31, 2002 and
$816,000 for the year ended December 31, 2003. We recorded net income of $2.1
million for the year ended December 31, 2004, $2.5 million for the year ended
December 31, 2005 and $2.2 million for the year ended December 31, 2006. As
of
December 31, 2006, our accumulated deficit was approximately $99.2 million.
We
cannot assure you that we can sustain or increase profitability on a quarterly
or annual basis in the future. Failure to maintain profitability may materially
and adversely affect the market price of our common stock.
Our
quarterly revenue and operating results are subject to significant fluctuations,
which may adversely affect the trading price of our common
stock.
Our
quarterly revenue and operating results may fluctuate significantly in the
future due to a variety of factors, including the following factors which are
in
part within our control, and in part outside of our control:
| |
·
|
continued
adoption by companies doing business online of real-time sales, marketing
and customer service solutions;
|
| |
·
|
our
clients’ business success;
|
| |
·
|
our
clients’ demand for our services;
|
| |
·
|
our
ability to attract and retain
clients;
|
| |
·
|
the
amount and timing of capital expenditures and other costs relating
to the
expansion of our operations, including those related to
acquisitions;
|
| |
·
|
the
introduction of new services by us or our competitors;
and
|
| |
·
|
changes
in our pricing policies or the pricing policies of our
competitors.
|
Our
revenue and results may also fluctuate significantly in the future due to the
following factors that are entirely outside of our control:
| |
·
|
economic
conditions specific to the Internet, electronic commerce and online
media;
and
|
| |
·
|
general
economic and political conditions.
|
Period-to-period
comparisons of our operating results may not be meaningful because of these
factors. You should not rely upon these comparisons as indicators of our future
performance.
Due
to
the foregoing factors, it is possible that our results of operations in one
or
more future quarters may fall below the expectations of securities analysts
and
investors. If this occurs, the trading price of our common stock could
decline.
We
may be unable to respond to the rapid technological change and changing client
preferences in the online sales, marketing and customer service industry and
this may harm our business.
If
we are
unable, for technological, legal, financial or other reasons, to adapt in a
timely manner to changing market conditions in the online sales, marketing
and
customer service industry or our clients’ or Internet users’ requirements, our
business, results of operations and financial condition would be materially
and
adversely affected. Business on the Internet is characterized by rapid
technological change. In addition, the market for online sales, marketing and
customer service solutions is relatively new. Sudden changes in client and
Internet user requirements and preferences, frequent new product and service
introductions embodying new technologies, such as broadband communications,
and
the emergence of new industry standards and practices could render the
LivePerson services and our proprietary technology and systems obsolete. The
rapid evolution of these products and services will require that we continually
improve the performance, features and reliability of our services. Our success
will depend, in part, on our ability to:
| |
·
|
enhance
the features and performance of the LivePerson
services;
|
| |
·
|
develop
and offer new services that are valuable to companies doing business
online and Internet users; and
|
| |
·
|
respond
to technological advances and emerging industry standards and practices
in
a cost-effective and timely manner.
|
If
any of
our new
services, including upgrades to our current services, do not meet our clients’
or Internet users’ expectations, our business may be harmed. Updating our
technology may require significant additional capital expenditures and could
materially and adversely affect our business, results of operations and
financial condition.
If
new
services require us to grow rapidly, this could place a significant strain
on
our managerial, operational, technical and financial resources. In order to
manage our growth, we could be required to implement new
or
upgraded operating and financial systems, procedures and controls. Our failure
to expand our operations in an efficient manner could cause our expenses to
grow, our revenue to decline or grow more slowly than expected and could
otherwise have a material adverse effect on our business, results of operations
and financial condition.
If
we are not competitive in the market for real-time sales, marketing and customer
service solutions, our business could be harmed.
The
market for online sales, marketing and customer service technology is intensely
competitive and characterized by aggressive marketing, evolving industry
standards, rapid technology developments and frequent new product introductions.
Although we believe that our long-standing relationships with clients,
particularly at the enterprise level, differentiates us from new entrants into
the market, established or new entities may enter this market in the near
future, including those that provide real-time interaction online, with or
without the user’s request.
We
compete directly with companies focused on technology that facilitates real-time
sales, email management, searchable knowledgebase applications and customer
service interaction. These markets remain fairly saturated with small companies
that compete on price and features. We face significant competition from online
interaction solution providers, including Software as a Service providers
RightNow Technologies, Art Technology Group and Instant Service. While the
online conversion market that Timpani Sales and Marketing addresses is
fragmented, we face potential competition from Web analytics and online
marketing service providers such as WebSideStory and Omniture. The most
significant barriers to entry in this market are knowledge of:
| |
·
|
online
consumer purchasing habits;
|
| |
·
|
methodologies
to correctly engage customers;
|
| |
·
|
metrics
proving return on investment; and
|
| |
·
|
technology
innovation opportunities.
|
Furthermore,
many of our competitors offer a broader range of customer relationship
management products and services than we currently offer. We may be
disadvantaged and our business may be harmed if companies doing business online
choose real-time sales, marketing and customer service solutions from such
providers.
We
also
face potential competition from larger enterprise software companies such as
Oracle. In addition, established technology
companies such as Microsoft, Yahoo and Google may leverage their existing
relationships and capabilities to offer real-time sales, marketing and customer
service applications.
Finally,
we compete with clients and potential clients that choose to provide a real-time
sales, marketing and customer service solution in-house as well as, to a lesser
extent, traditional offline customer service solutions, such
as
telephone call centers.
We
believe that competition will increase as our current competitors increase
the
sophistication of their offerings and as new participants enter the market.
As
compared to LivePerson, some of our larger current and potential
competitors have:
| |
·
|
greater
brand recognition;
|
| |
·
|
more
diversified lines of products and services;
and
|
| |
·
|
significantly
greater financial, marketing and research and development
resources.
|
Additionally,
some competitors may enter into strategic or commercial relationships with
larger, more established and better-financed companies. These competitors may
be
able to:
| |
·
|
undertake
more extensive marketing campaigns;
|
| |
·
|
adopt
more aggressive pricing policies;
and
|
| |
·
|
make
more attractive offers to businesses to induce them to use their
products
or services.
|
Any
delay
in the general market acceptance of the real-time sales, marketing and customer
service solution business model would likely harm our competitive position.
Delays would allow our competitors additional time to improve their service
or
product offerings, and would also provide time for new competitors
to
develop real-time sales, marketing, customer service and Web analytics
applications and solicit prospective clients within our target markets.
Increased competition could result in pricing pressures, reduced operating
margins and loss of market share.
The
success of our business is dependent on the retention of existing clients and
their purchase of additional LivePerson services.
Our
LivePerson services agreements typically have twelve month terms and are
terminable upon 30 to 90 days’ notice
without
penalty. If a significant number of our clients, or any one client to whom
we
provide a significant amount of services, were to terminate these services
agreements, or reduce the amount of services purchased or fail to purchase
additional services, our results of operations may be negatively and materially
affected. Dissatisfaction with the nature or quality of our services could
also
lead clients to terminate our service. We depend on monthly fees from the
LivePerson services for substantially all of our revenue. If our retention
rate
declines, our revenue could decline unless we are able to obtain additional
clients or alternate revenue sources. Further, because of the historically
small
amount of services sold in initial orders, we depend on sales to new clients
and
sales of additional services to our existing clients.
We
are dependent on technology systems that are beyond our
control.
The
success of the LivePerson services depends in part on our clients’ online
services as well as the Internet connections of visitors to their websites,
both
of which are outside of our control. As a result, it may be difficult to
identify the source of problems if they occur. In the past, we have experienced
problems related
to
connectivity which have resulted in slower than normal response times to
Internet user chat requests and messages and interruptions in service. The
LivePerson services rely both on the Internet and on our connectivity vendors
for data transmission. Therefore, even when connectivity problems are not caused
by the LivePerson services, our clients or Internet users may attribute the
problem to us. This could diminish our brand and harm our business, divert
the
attention of our technical personnel from our product development efforts or
cause significant client relations problems.
In
addition, we rely on two third-party Web hosting service providers for Internet
connectivity and network infrastructure hosting, security and maintenance.
These
providers have, in the past, experienced problems that have resulted in slower
than normal response times and interruptions in service. If we are unable to
continue
utilizing the services of our existing Web hosting providers or if our Web
hosting services experience interruptions or delays, it is possible that our
business could be harmed.
Our
service also depends on third parties for hardware and software, which products
could contain defects. Problems arising from our use of such hardware or
software could require us to incur significant costs or divert
the
attention of our technical personnel from our product development efforts.
To
the extent any such problems require us to replace such hardware or software,
we
may not be able to do so on acceptable terms, if at all.
Technological
defects could disrupt our services, which could harm our business and
reputation.
We
face
risks related to the technological capabilities of the LivePerson services.
We
expect the number of interactions
between
our clients’ operators and Internet users over our system to increase
significantly as we expand our client base. Our network hardware and software
may not be able to accommodate this additional volume. Additionally, we must
continually upgrade our software to improve the features and functionality
of
the LivePerson services in order to be competitive in our market. If future
versions of our software contain undetected errors, our business could be
harmed. As a result of major software upgrades at LivePerson, our client sites
have, from time to time, experienced slower than normal response times and
interruptions in service. If we experience system failures or degraded response
times, our reputation and brand could be harmed. We may also experience
technical problems in the process of installing and initiating the LivePerson
services on new Web hosting services. These problems, if unremedied, could
harm
our business.
The
LivePerson services also depend on complex software which may contain defects,
particularly when we introduce new versions onto our servers. We may not
discover software defects that affect our new or current services
or
enhancements until after they are deployed. It is possible that, despite testing
by us, defects may occur in the software. These defects could result
in:
| |
·
|
damage
to our reputation;
|
| |
·
|
delays
in or loss of market acceptance of our products;
and
|
| |
·
|
unexpected
expenses and diversion of resources to remedy
errors.
|
Failure
to license necessary third party software for use in our products and services,
or failure to successfully integrate third party software, could cause delays
or
reductions in our sales, or errors or failures of our
service.
We
license third party software that we plan to incorporate into our products
and
services. In the future, we might need to license other software to enhance
our
products and meet evolving customer requirements.
These
licenses may not continue to be available on commercially reasonable terms
or at
all. Some of this technology could be difficult to replace once integrated.
The
loss of, or inability to obtain, these licenses could result in delays or
reductions of our applications until we identify, license and integrate or
develop equivalent software, and new licenses could require us to pay higher
royalties. If we are unable to successfully license and integrate third party
technology, we could experience a reduction in functionality and/or errors
or
failures of our products, which may reduce demand for our products and
services.
Third-party
licenses may expose us to increased risks, including risks associated with
the
integration of new technology,
the
impact of new technology integration on our existing technology, the diversion
of resources from the development of our own proprietary technology, and our
inability to generate revenue from new technology sufficient to offset
associated acquisition and maintenance costs.
Our
clients may experience adverse business conditions that could adversely affect
our business.
Some
of
our clients may experience difficulty in supporting their current operations
and
implementing their business plans. These clients may reduce their spending
on
our services, or may not be able to discharge their
payment
and other obligations to us. These circumstances are influenced by general
economic and industry-specific conditions, and could have a material adverse
impact on our business, financial condition and results of operations. In
addition, as a result of these conditions, our clients, in particular our
Internet-related clients that may experience (or that anticipate experiencing)
difficulty raising capital, may elect to scale back the resources they devote
to
customer service technology, including services such as ours. If the current
environment for our clients, including, in particular, our Internet-related
clients, does not improve, our business, results of operations and financial
condition could be materially adversely affected. In addition, the non-payment
or late payment of amounts due to us from a significant number of clients would
negatively impact our financial condition. During 2006, we increased our
allowance for doubtful accounts by $38,000 to approximately $105,000,
principally due to an increase in accounts receivable as a result of increased
sales. We did not write off any accounts during 2006. During 2005, we increased
our allowance for doubtful accounts by $30,000 to approximately $84,000,
principally due to an increase in accounts receivable as a result of increased
sales, and we wrote off approximately $17,000 of previously reserved accounts,
leaving a net allowance of $67,000 at December 31, 2005.
Our
business is significantly dependent on our ability to retain our current key
personnel, to attract new personnel, and to manage staff
attrition.
Our
future success depends to a significant extent on the continued services of
our
senior management team, including
Robert
P. LoCascio, our founder and Chief Executive Officer. The loss of the services
of any member of our senior management team, in particular Mr. LoCascio, could
have a material and adverse effect on our business, results of operations and
financial condition. We cannot assure you that we would be able to successfully
integrate newly-hired senior managers who would work together successfully
with
our existing management team.
We
may be
unable to attract, integrate or retain other highly qualified employees in
the
future. If our retention efforts are ineffective, employee turnover could
increase and our ability to provide services to our clients would be materially
and adversely affected. Furthermore, the new requirement to expense stock
options may discourage us from granting the size or type of stock option awards
that job candidates may require to join our company.
Any
staff
attrition we experience, whether initiated by the departing employees or by
us,
could place a significant strain
on our
managerial, operational, financial and other resources. To the extent that
we do
not initiate or seek any staff attrition that occurs, there can be no assurance
that we will be able to identify and hire adequate replacement staff promptly,
if at all, and even that if such staff is replaced, we will be successful in
integrating these employees. In addition, we may not be able to outsource
certain functions. We expect to evaluate our needs and the performance of our
staff on a periodic basis, and may choose to make adjustments in the future.
If
the size of our staff is significantly reduced, either by our choice or
otherwise, it may become more difficult for us to manage existing, or establish
new, relationships with clients and other counter-parties, or to expand and
improve our service offerings. It may also become more difficult for us to
implement changes to our business plan or to respond promptly to opportunities
in the marketplace. Further, it may become more difficult for us to devote
personnel resources necessary to maintain or improve existing systems, including
our financial and managerial controls, billing systems, reporting systems and
procedures. Thus, any significant amount of staff attrition could cause our
business and financial results to suffer.
We
believe our reported financial results may be adversely affected by changes
in
accounting principles generally accepted in the United
States.
Generally
accepted accounting principles in the United States are subject to
interpretation by the FASB, the American Institute of Certified Public
Accountants, the SEC, and various bodies formed to promulgate and interpret
appropriate accounting principles. A change in these principles or
interpretations could have a significant effect on our reported financial
results, and could affect the reporting of transactions completed before the
announcement of a change.
For
example, as of January 1, 2006 we were required to adopt the provisions of
SFAS
No. 123 (revised 2004), “Share Based Payment,” causing us to expense employee
stock options. This change decreased our net income per share by $0.05 for
the
full year 2006 and we expect that it will decrease our net income per share
by
$0.08 for the full year 2007. This impact may change based upon additional
stock
option grants, if any, methodology refinement or other factors.
We
cannot predict our future capital needs to execute our business strategy and
we
may not be able to secure additional financing.
We
believe that our current cash and cash equivalents and cash generated from
operations, if any, will be sufficient to fund our working capital and capital
expenditure requirements for at least the next twelve months. To the extent
that
we require additional funds to support our operations or the expansion of our
business, or to pay for acquisitions, we may need to sell additional equity,
issue debt or convertible securities or obtain credit facilities through
financial institutions. In the past, we have obtained financing principally
through the sale of preferred stock, common stock and warrants. If additional
funds are raised through the issuance of debt or preferred equity securities,
these securities could have rights, preferences and privileges senior to holders
of common stock, and could have terms that impose restrictions on our
operations. If additional funds are raised through the issuance of additional
equity or convertible securities, our stockholders could suffer dilution. We
cannot assure you that additional funding, if required, will be available to
us
in amounts or on terms acceptable to us. If sufficient funds are not available
or are not available on acceptable terms, our ability to fund any potential
expansion, take advantage of acquisition opportunities, develop or enhance
our
services or products, or otherwise respond to competitive pressures would be
significantly limited. Those limitations would materially and adversely affect
our business, results of operations and financial condition.
If
we do not successfully integrate current or potential future acquisitions,
our
business could be harmed.
In
October 2007, we acquired Kasamba Inc. and from time-to-time we may acquire
or
invest in other complementary companies, products or technologies. Acquisitions
and investments involve numerous risks to us, including:
| |
·
|
difficulties
in integrating operations, technologies, products and personnel with
LivePerson;
|
| |
·
|
diversion
of financial and management resources from efforts related to the
LivePerson services or other then-existing operations; risks of entering
new markets beyond providing real-time sales, marketing and customer
service solutions for companies doing business
online
|
| |
·
|
potential
loss of either our existing key employees or key employees of any
companies we acquire; and
|
| |
·
|
our
inability to generate sufficient revenue to offset acquisition or
investment costs.
|
These
difficulties could disrupt our ongoing business, distract our management and
employees, increase our expenses and adversely affect our results of operations.
Furthermore, we may incur debt or issue equity securities
to pay
for any future acquisitions. The issuance of equity securities could be dilutive
to our existing stockholders.
If
our goodwill becomes impaired, we may be required to record a significant charge
to earnings.
Under
generally accepted accounting principles, we review our goodwill for impairment
when events or changes in circumstances indicate the carrying value may not
be
recoverable. Goodwill is required to be tested for impairment
at least
annually. Factors that may be considered a change in circumstances indicating
that the carrying value of our goodwill may not be recoverable include a decline
in stock price and market capitalization, reduced future cash flow estimates,
and slower growth rates in our industry. We may be required to record a
significant charge to earnings in our financial statements during the period
in
which any impairment of our goodwill is determined, negatively impacting our
results of operations.
We
could face additional regulatory requirements, tax liabilities and other risks
as we expand internationally.
In
October 2000, we acquired HumanClick, an Israeli-based provider of real-time
online customer service applications. In addition, we have established a sales,
marketing and client support presence in the United Kingdom in support of
expansion efforts into Western Europe, and have integrated the United Kingdom
operations of Proficient Systems into that office. Further, in October 2007,
we
acquired Kasamba, an Israeli-based online provider of live expert advice
delivered to consumers via real-time chat. There are risks related to doing
business in international markets, such as changes in regulatory requirements,
tariffs and other trade barriers, fluctuations in currency exchange rates,
more
stringent rules relating to the privacy of Internet users and adverse tax
consequences. In addition, there are likely to be different consumer preferences
and requirements in specific international markets. Furthermore, we may face
difficulties in staffing and managing any foreign operations. One or more of
these factors could harm any future international operations.
Our
reputation depends, in part, on factors which are entirely outside of our
control.
Our
services typically appear as a LivePerson-branded, Timpani-branded or a
custom-created icon on our clients’ websites.
The
customer service operators who respond to the inquiries of our clients’ Internet
users are employees or agents of our clients; they are not our employees. As
a
result, we have no way of controlling the actions of these operators. In
addition, an Internet user may not know that the operator is an employee or
agent of our client, rather than a LivePerson employee. If an Internet user
were
to have a negative experience in a LivePerson-powered real-time dialogue, it
is
possible that this experience could be attributed to us, which could diminish
our brand and harm our business. Finally, we believe the success of our services
depend on the prominent placement of the icon on the client’s website, over
which we also have no control.
Our
business and prospects would suffer if we are unable to protect and enforce
our
intellectual property rights.
Our
success and ability
to
compete depend, in part, upon the protection of our intellectual property rights
relating to the technology underlying the LivePerson services. It is possible
that:
| |
·
|
any
issued patent or patents issued in the future may not be broad enough
to
protect our intellectual property
rights;
|
| |
·
|
any
issued patent or any patents issued in the future could be successfully
challenged by one or more third parties, which could result in our
loss of
the right to prevent others from exploiting the inventions claimed
in the
patents;
|
| |
·
|
current
and future competitors may independently develop similar technologies,
duplicate our services or design around any patents we may have;
and
|
| |
·
|
effective
patent protection may not be available in every country in which
we do
business, where our services are sold or used, where the laws may
not
protect proprietary rights as fully as do the laws of the U.S. or
where
enforcement of laws protecting proprietary rights is not common or
effective.
|
Further,
to the extent that the invention described in any U.S. patent was made public
prior to the filing of the patent application, we may not be able to obtain
patent protection in certain foreign countries. We also rely upon copyright,
trade secret, trademark and other common law in the U.S. and other
jurisdictions, as well as confidentiality
procedures and contractual provisions, to protect our proprietary technology,
processes and other intellectual property. Any steps we might take may not
be
adequate to protect against infringement and misappropriation of our
intellectual property by third parties. Similarly, third parties may be able
to
independently develop similar or superior technology, processes or other
intellectual property. Policing unauthorized use of our services and
intellectual property rights is difficult, and we cannot be certain that the
steps we have taken will prevent misappropriation of our technology or
intellectual property rights, particularly in foreign countries where we do
business, where our services are sold or used, where the laws may not protect
proprietary rights as fully as do the laws of the United States or where
enforcement of laws protecting proprietary rights is not common or effective.
The unauthorized reproduction or other misappropriation of our intellectual
property rights could enable third parties to benefit from our technology
without paying us for it. If this occurs, our business, results of operations
and financial condition could be materially and adversely affected. In addition,
disputes concerning the ownership or rights to use intellectual property could
be costly and time-consuming to litigate, may distract management from operating
our business and may result in our loss of significant rights.
Our
products and services may infringe upon intellectual property rights of third
parties and any infringement could require us to incur substantial costs and
may
distract our management.
We
are
subject to the risk of claims alleging infringement of third-party proprietary
rights. Substantial litigation regarding intellectual property rights exists
in
the software industry. In the ordinary course of our business, our services
may
be increasingly subject to third-party infringement claims as the number of
competitors in our
industry
segment grows and the functionality of services in different industry segments
overlaps. Some of our competitors in the market for real-time sales, marketing
and customer service solutions or other third parties may have filed or may
intend to file patent applications covering aspects of their technology. Any
claims alleging infringement of third-party intellectual property rights could
require us to spend significant amounts in litigation (even if the claim is
invalid), distract management from other tasks of operating our business, pay
substantial damage awards, prevent us from selling our products, delay delivery
of the LivePerson services, develop non-infringing software, technology,
business processes, systems or other intellectual property (none of which might
be successful), or limit our ability to use the intellectual property that
is
the subject of any of these claims, unless we enter into license agreements
with
the third parties (which may be costly, unavailable on commercially reasonable
terms, or not available at all). Therefore, such claims could have a material
adverse effect on our business, results of operations and financial
condition.
We
may be liable if third parties misappropriate personal information belonging
to
our clients’ Internet users.
We
maintain dialogue transcripts of the text-based chats and email interactions
between our clients and Internet users and store on our servers information
supplied voluntarily by these Internet users in surveys. We provide this
information to our clients to allow them to perform Internet user analyses
and
monitor the effectiveness of our services. Some of the information we collect
may include personal information, such as contact and demographic information.
If third parties were able to penetrate our network security or otherwise
misappropriate personal information relating to our clients’ Internet users or
the text of customer service inquiries, we could be subject to liability. We
could be subject to negligence claims or claims for misuse of personal
information. These claims could result in litigation, which could have a
material adverse effect on our business, results of operations and financial
condition. We may incur significant costs to protect against the threat of
security breaches or to alleviate problems caused by such breaches.
The
need
to physically secure and securely transmit confidential information online
has
been a significant barrier to electronic commerce and online communications.
Any
well-publicized compromise of security could deter people from using online
services such as the ones we offer, or from using them to conduct transactions,
which involve transmitting confidential information. Because our success depends
on the general acceptance of our services and electronic commerce, we may incur
significant costs to protect against the threat of security breaches or to
alleviate problems caused by these breaches.
Political,
economic and military conditions in Israel could negatively impact our Israeli
operations.
Our
product development staff, help desk and online sales personnel are located
in
Israel. As of December 31, 2006, we had 80 full-time employees in Israel.
Although substantially all of our sales to date have been made to customers
outside Israel, we are directly influenced by the political, economic and
military conditions affecting Israel. Since the establishment of the State
of
Israel in 1948, a number of armed conflicts have taken place between Israel
and
its Arab neighbors. A state of hostility, varying in degree and intensity,
has
caused security and economic problems in Israel. Since September 2000, there
has
been a marked increase in violence, civil unrest and hostility, including armed
clashes, between the State of Israel and the Palestinians, primarily but not
exclusively in the West Bank and Gaza Strip, and negotiations between the State
of Israel and Palestinian representatives have effectively ceased. The election
of representatives of the Hamas movement to a majority of seats in the
Palestinian Legislative Council in January 2006 created additional unrest and
uncertainty. In July and August of 2006, Israel was involved in a full-scale
armed conflict with Hezbollah, a Lebanese Islamist Shiite militia group and
political party, in southern Lebanon, which involved missile strikes against
civilian targets in northern Israel that resulted in economic losses. Continued
hostilities between Israel and its neighbors and any failure to settle the
conflict could adversely affect our operations in Israel and our business.
Further deterioration of the situation might require more widespread military
reserve service by some of our Israeli employees and might result in a
significant downturn in the economic or financial condition of Israel, either
of
which could have a material adverse effect on our operations in Israel and
our
business. In addition, several Arab countries still restrict business with
Israeli companies. Our operations in Israel could be adversely affected by
restrictive laws or policies directed towards Israel and Israeli
businesses.
Risks
Related to Our Industry
We
are dependent on the continued use of the Internet as a medium for
commerce.
We
cannot
be sure that a sufficiently broad base of consumers will continue to use the
Internet as a medium for commerce. Convincing our clients to offer real-time
sales, marketing and customer service technology may be
difficult. The continuation of the Internet as a viable commercial marketplace
is subject to a number of factors, including:
| |
·
|
continued
growth in the number of users;
|
| |
·
|
concerns
about transaction security;
|
| |
·
|
continued
development of the necessary technological
infrastructure;
|
| |
·
|
development
of enabling technologies;
|
| |
·
|
uncertain
and increasing government regulation;
and
|
| |
·
|
the
development of complementary services and
products.
|
We
depend on the continued viability of the infrastructure of the
Internet.
To
the
extent that the Internet continues to experience growth in the number of users
and frequency of use by consumers resulting
in
increased bandwidth demands, we cannot assure you that the infrastructure for
the Internet will be able to support the demands placed upon it. The Internet
has experienced outages and delays as a result of damage to portions of its
infrastructure. Outages or delays could adversely affect online sites, email
and
the level of traffic on the Internet. We also depend on Internet service
providers that provide our clients and Internet users with access to the
LivePerson services. In the past, users have experienced difficulties due to
system failures unrelated to our service. In addition, the Internet could lose
its viability due to delays in the adoption of new standards and protocols
required to handle increased levels of Internet activity. Insufficient
availability of telecommunications services to support the Internet also could
result in slower response times and negatively impact use of the Internet
generally, and our clients’ sites (including the LivePerson dialogue windows) in
particular. If the use of the Internet fails to grow or grows more slowly than
expected, if the infrastructure for the Internet does not effectively support
growth that may occur or if the Internet does not become a viable commercial
marketplace, we may not maintain profitability and our business, results of
operations and financial condition will suffer.
We
may become subject to burdensome government regulation and legal
uncertainties.
We
are
subject to federal, state and local regulation, and laws of jurisdictions
outside of the United States, including laws and regulations applicable to
computer software and access to or commerce over the Internet. Due to the
increasing popularity and use of the Internet and various other online services,
it is likely that a number
of new
laws and regulations will be adopted with respect to the Internet or other
online services covering issues such as user privacy, freedom of expression,
pricing, content and quality of products and services, taxation, advertising,
intellectual property rights and information security. The nature of such
legislation and the manner in which it may be interpreted and enforced cannot
be
fully determined and, therefore, such legislation could subject us and/or our
clients or Internet users to potential liability, which in turn could have
a
material adverse effect on our business, results of operations and financial
condition.
As
a
result of collecting data from live online Internet user dialogues, our clients
may be able to analyze the commercial habits of Internet users. Privacy concerns
may cause Internet users to avoid online sites that collect such behavioral
information and even the perception of security and privacy concerns, whether
or
not valid, may indirectly inhibit market acceptance of our services. In
addition, we or our clients may be harmed
by any
laws or regulations that restrict the ability to collect or use this data.
The
European Union and many countries within the E.U. have adopted privacy
directives or laws that strictly regulate the collection and use of personally
identifiable information of Internet users. The United States has adopted
legislation which governs the collection and use of certain personal
information. The U.S. Federal Trade Commission has also taken action against
website operators who do not comply with their stated privacy policies.
Furthermore, other foreign jurisdictions have adopted legislation governing
the
collection and use of personal information. These and other governmental efforts
may limit our clients’ ability to collect and use information about their
Internet users through our services. As a result, such laws and efforts could
create uncertainty in the marketplace that could reduce demand for our services
or increase the cost of doing business as a result of litigation costs or
increased service delivery costs, or could in some other manner have a material
adverse effect on our business, results of operations and financial
condition.
For
example, the LivePerson services allow our clients to capture and save
information about Internet users, possibly without their knowledge.
Additionally, our service uses a tool, commonly referred to as a “cookie,” to
uniquely identify each of our clients’ Internet users. To the extent that
additional legislation regarding Internet
user
privacy is enacted, such as legislation governing the collection and use of
information regarding Internet users through the use of cookies, the
effectiveness of the LivePerson services could be impaired by restricting us
from collecting information which may be valuable to our clients. The foregoing
could have a material adverse effect our business, results of operations and
financial condition.
In
addition to privacy
legislation, any new legislation or regulation regarding the Internet, or the
application of existing laws and regulations to the Internet, could harm us.
Additionally, as we operate outside the U.S., the international regulatory
environment relating to the Internet could have a material adverse effect on
our
business, results of operations and financial condition.
Security
concerns could hinder commerce on the Internet.
User
concerns about
the
security of confidential information online has been a significant barrier
to
commerce on the Internet and online communications. Any well-publicized
compromise of security could deter people from using the Internet or other
online services or from using them to conduct transactions that involve the
transmission of confidential information. If Internet commerce is inhibited
as a
result of such security concerns, our business would be harmed.
Other
Risks
Our
stockholders who each own greater than five percent of the outstanding common
stock, and our executive officers and directors, will be able to influence
matters requiring a stockholder vote.
Our
stockholders who each own greater than five percent of the outstanding common
stock and their affiliates, and our executive officers and directors, in the
aggregate, beneficially own approximately 44.6% of our outstanding common stock.
As a result, these stockholders, if acting together, will be able to
significantly influence all matters requiring approval by our stockholders,
including the election of directors and approval
of
significant corporate transactions. This concentration of ownership could also
have the effect of delaying or preventing a change in control.
The
future sale of shares of our common stock may negatively affect our stock
price.
If
our
stockholders sell substantial amounts of our common stock, including shares
issuable upon the exercise of outstanding
options
and warrants in the public market, or if our stockholders are perceived by
the
market as intending to sell substantial amounts of our common stock, the market
price of our common stock could fall. These sales also might make it more
difficult for us to sell equity securities in the future at a time and price
that we deem appropriate. The number of shares of common stock subject to the
registration statement we filed in January 2004, registering our issuance and
sale from time to time of up to 4,000,000 shares of common stock, is much
greater than the average weekly trading volume for our shares. No prediction
can
be made as to the effect, if any, that market sales of these or other shares
of
our common stock will have on the market price of our common stock.
Our
stock price has been highly volatile and may experience extreme price and volume
fluctuations in the future, which could reduce the value of your investment
and
subject us to litigation.
Fluctuations
in market price and volume are particularly common among securities of Internet
and other technology companies.
The
market price of our common stock has fluctuated significantly in the past and
may continue to be highly volatile, with extreme price and volume fluctuations,
in response to the following factors, some of which are beyond our
control:
| |
·
|
variations
in our quarterly operating results;
|
| |
·
|
changes
in market valuations of publicly-traded companies in general and
Internet
and other technology companies in
particular;
|
| |
·
|
our
announcements of significant client contracts, acquisitions and our
ability to integrate these acquisitions, strategic partnerships,
joint
ventures or capital commitments;
|
| |
·
|
our
failure to complete significant
sales;
|
| |
·
|
additions
or departures of key personnel;
|
| |
·
|
future
sales of our common stock;
|
| |
·
|
changes
in financial estimates by securities analysts;
and
|
| |
·
|
terrorist
attacks against the United States or in Israel, the engagement in
hostilities or an escalation of hostilities by or against the United
States or Israel, or the declaration of war or national emergency
by the
United States or Israel.
|
In
the
past, companies that have experienced volatility in the market price of their
stock have been the subject of securities class action litigation. We may in
the
future be the target of similar litigation, which could result in substantial
costs
and distract management from other important aspects of operating our
business.
Anti-takeover
provisions in our charter documents and Delaware law may make it difficult
for a
third party to acquire us.
Provisions
of our amended
and
restated certificate of incorporation, such as our staggered Board of Directors,
the manner in which director vacancies may be filled and provisions regarding
the calling of stockholder meetings, could make it more difficult for a third
party to acquire us, even if doing so might be beneficial to our stockholders.
In addition, provisions of our amended and restated bylaws, such as advance
notice requirements for stockholder proposals, and applicable provisions of
Delaware law, such as the application of business combination limitations,
could
impose similar difficulties. Further, provisions of our amended and restated
certificate of incorporation relating to directors, stockholder meetings,
limitation of director liability, indemnification and amendment of the
certificate of incorporation and bylaws may not be amended without the
affirmative vote of not less than 66.67% of the outstanding shares of our
capital stock entitled to vote generally in the election of directors
(considered for this purpose as a single class) cast at a meeting of our
stockholders called for that purpose. Our amended and restated bylaws may not
be
amended without the affirmative vote of at least 66.67% of our Board of
Directors or without the affirmative vote of not less than 66.67% of the
outstanding shares of our capital stock entitled to vote generally in the
election of directors (considered for this purpose as a single class) cast
at a
meeting of our stockholders called for that purpose.
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus includes and incorporates forward-looking statements within the
meaning of Section 27A of the Securities Act of 1933, as amended (the Securities
Act), and Section 21E of the Securities Exchange Act of 1934, as amended (the
Exchange Act). All statements, other than statements of historical facts,
included or incorporated in this prospectus regarding our strategy, future
operations, financial position, future revenues, projected costs, prospects,
plans and objectives of management are forward-looking statements. The words
“anticipates,” “believes,” “estimates,” “expects,” “intends,” “may,” “plans,”
“projects,” “will,” “would” and similar expressions are intended to identify
forward-looking statements, although not all forward-looking statements contain
these identifying words. We cannot guarantee that we actually will achieve
the
plans, intentions or expectations disclosed in our forward-looking statements
and you should not place undue reliance on our forward-looking statements.
Actual results or events could differ materially from the plans, intentions
and
expectations disclosed in the forward-looking statements we make. We have
included important factors in the cautionary statements included or incorporated
in this prospectus, particularly under the heading “Risk Factors”, that we
believe could cause actual results or events to differ materially from the
forward-looking statements that we make. Our forward-looking statements do
not
reflect the potential impact of any future acquisitions, mergers, dispositions,
joint ventures or investments we may make. Any such forward-looking statements
represent management’s views as of the date of the document in which such
forward-looking statement is contained. While we may elect to update such
forward-looking statements at some point in the future, we disclaim any
obligation to do so, even if subsequent events cause our views to
change.
USE
OF PROCEEDS
We
will
not receive any proceeds upon the resale of any of the shares registered on
behalf of the selling stockholders.
SELLING
STOCKHOLDERS
We
issued
the shares of common stock covered by this prospectus in a private placement
in
connection with our acquisition of Kasamba Inc. pursuant to a merger completed
on October 3, 2007. The following table sets forth, to our knowledge, certain
information about the selling stockholders as of November 26, 2007.
Beneficial
ownership is determined in accordance with the rules of the Securities and
Exchange Commission, or SEC, and includes voting or investment power with
respect to shares. Shares of common stock issuable under stock options that
are
exercisable within 60 days after November 26, 2007 are deemed outstanding for
computing the percentage ownership of the person holding the options but are
not
deemed outstanding for computing the percentage ownership of any other person.
Other than the right to receive shares pursuant to the Merger Agreement, the
selling stockholders who are former Kasamba shareholders did not beneficially
own any shares of common stock, including shares subject to options or similar
rights, as of October 3, 2007. Unless otherwise indicated below, to our
knowledge, all persons named in the table have sole voting and investment power
with respect to their shares of common stock, except to the extent authority
is
shared by spouses under applicable law. The inclusion of any shares in this
table does not constitute an admission of beneficial ownership for the person
named below.
Certain
of the shares of LivePerson common stock issued in the merger to Kasamba’s
stockholders will be subject to resale limitations, as more fully described
below under “Plan of Distribution.”
|
Name
of Selling Stockholder
|
|
Shares
of Common Stock Beneficially Owned Prior to Offering (1)
|
|
Number
of Shares of
Common
Stock Being
Offered
|
|
Shares
of Common Stock to be
Beneficially
Owned After
Offering
(1)(2)
|
| |
|
Number
|
|
Percentage
|
|
|
|
Number
|
|
Percentage
|
|
888
Holdings Plc.
|
|
122,518
|
|
*
|
|
122,518
|
|
122,518
|
|
*
|
|
Amir
Erlichman
|
|
309,930
|
|
*
|
|
309,930
|
|
309,930
|
|
*
|
|
Amiram
Levinberg
|
|
196,371
|
|
*
|
|
196,371
|
|
196,371
|
|
*
|
|
Amos
and Daughters
|
|
47,778
|
|
*
|
|
47,778
|
|
47,778
|
|
*
|
|
Arthur
Fuhrer LLC
|
|
1,239,539
|
|
*
|
|
1,239,539
|
|
1,239,539
|
|
*
|
|
Asher
Kugler
|
|
33,208
|
|
*
|
|
33,208
|
|
33,208
|
|
*
|
|
Ben-Ami
Balaban
|
|
19,047
|
|
*
|
|
19,047
|
|
19,047
|
|
*
|
|
David
Salomon
|
|
33,210
|
|
*
|
|
33,210
|
|
33,210
|
|
*
|
|
Excaliber
Capital
|
|
23,809
|
|
*
|
|
23,809
|
|
23,809
|
|
*
|
|
Gary
Mueller
|
|
23,809
|
|
*
|
|
23,809
|
|
23,809
|
|
*
|
|
Hana
Rona
|
|
94,988
|
|
*
|
|
94,988
|
|
94,988
|
|
*
|
|
Joshua
Levinberg
|
|
196,371
|
|
*
|
|
196,371
|
|
196,371
|
|
*
|
|
Lilach
Shamir
|
|
14,285
|
|
*
|
|
14,285
|
|
14,285
|
|
*
|
|
Medistart
Ltd.
|
|
47,778
|
|
*
|
|
47,778
|
|
47,778
|
|
*
|
|
Moti
Hamama
|
|
123,720
|
|
*
|
|
123,720
|
|
123,720
|
|
*
|
|
Oristan
Limited B.V.I
|
|
47,778
|
|
*
|
|
47,778
|
|
47,778
|
|
*
|
|
Ram
Ben Shalom
|
|
94,988
|
|
*
|
|
94,988
|
|
94,988
|
|
*
|
|
Ran
Fridrich
|
|
23,809
|
|
*
|
|
23,809
|
|
23,809
|
|
*
|
|
Sharly
Paz LLC
|
|
48,151
|
|
*
|
|
48,151
|
|
48,151
|
|
*
|
|
Tal
Shaked
|
|
62,146
|
|
*
|
|
62,146
|
|
62,146
|
|
*
|
|
Yinon
Exel LLC
|
|
1,239,539
|
|
*
|
|
1,239,539
|
|
1,239,539
|
|
*
|
|
Yoav
Leibovitch
|
|
40,225
|
|
*
|
|
40,225
|
|
40,225
|
|
*
|
|
Zohar
Gilon
|
|
47,778
|
|
*
|
|
47,778
|
|
47,778
|
|
*
|
__________________________
*
Less
than one percent.
|
1.
|
Of
the total shares of common stock listed as owned by the selling
stockholders, a total of 766,871 shares are held in an escrow account
to
secure indemnification obligations of the former stockholders of
Kasamba
to us. The number of shares indicated as owned by each selling
stockholders includes those shares (representing 18.5% of the number
of
shares listed as beneficially owned by each selling stockholder)
which
such selling stockholder is entitled to receive upon distribution
of these
shares from the escrow account.
|
|
2.
|
We
do not know when or in what amounts a selling stockholder may offer
shares
for sale. The selling stockholders might not sell any or all of the
shares
offered by this prospectus. Because the selling stockholders may
offer all
or some of the shares pursuant to this offering, and because there
are
currently no agreements, arrangements or understandings with respect
to
the sale of any of the shares, we cannot estimate the number of the
shares
that will be held by the selling stockholders after completion of
the
offering. However, for purposes of this table, we have assumed that,
after
completion of the offering, none of the shares covered by this prospectus
will be held by the selling
stockholders.
|
Within
the past three years, none of the selling stockholders have held any position
or
office with us or any of our affiliates or had a material relationship with
us
or any of our affiliates. In connection with our acquisition of Kasamba, we
entered into employment agreements with Inon Axel, formerly CEO of Kasamba,
and
Arthur Fuhrer, formerly President of Kasamba, under which each will perform
certain services for us.
PLAN
OF DISTRIBUTION
We
are
registering the shares of common stock offered for sale by this prospectus
on
behalf of the selling stockholders. As used in this section, “selling
stockholders” includes donees, pledgees, distributees, transferees, or other
successors-in-interest. The selling stockholders will act independently of
us in
making decisions with respect to the timing, manner and size of each sale.
We
will pay all costs, expenses and fees in connection with the registration of
the
shares. The selling stockholders will pay all brokerage commissions,
underwriting discounts, commissions, transfer taxes and other similar selling
expenses, if any, associated with the sale of the shares of common stock by
them.
The
selling stockholders may, from time to time, sell any or all of their shares
of
common stock on any stock exchange, market or trading facility on which the
shares are traded or in private transactions. These sales may be at fixed or
negotiated prices. The selling stockholders may use any one or more of the
following methods when selling shares:
| |
·
|
ordinary
brokerage transactions and transactions in which the broker-dealer
solicits purchasers;
|
| |
·
|
block
trades in which the broker-dealer will attempt to sell the shares
as agent
but may position and resell a portion of the block as principal to
facilitate the transaction;
|
| |
·
|
purchases
by a broker-dealer as principal and resale by the broker-dealer for
its
account;
|
| |
·
|
an
exchange distribution in accordance with the rules of the applicable
exchange;
|
| |
·
|
privately
negotiated transactions;
|
| |
·
|
settlement
of short sales entered into after the date of this
prospectus;
|
| |
·
|
broker-dealers
may agree with the selling stockholders to sell a specified number
of such
shares at a stipulated price per
share;
|
| |
·
|
through
the writing or settlement of options or other hedging transactions,
whether through an options exchange or
otherwise;
|
| |
·
|
a
combination of any such methods of sale;
or
|
| |
·
|
any
other method permitted pursuant to applicable
law.
|
The
selling stockholders may also sell shares under Rule 144 under the Securities
Act, if available, rather than under this prospectus. The selling stockholders
may also engage in short sales against the box, puts and calls and other
transactions in our shares of common stock and may sell or deliver shares in
connection with these trades.
Broker-dealers
engaged by the selling stockholders may arrange for other brokers-dealers to
participate in sales. Broker-dealers may receive commissions or discounts from
the selling stockholders (or, if any broker-dealer acts as agent for the
purchaser of shares, from the purchaser) in amounts to be negotiated, but,
except as set forth in a supplement to this prospectus, in the case of an agency
transaction, not in excess of a customary brokerage commission in compliance
with NASD Rule 2440, and in the case of a principal transaction, a markup or
markdown in compliance with NASD IM-2440. Any profits on the resale of shares
of
common stock by a broker-dealer acting as principal might be deemed to be
underwriting discounts or commissions under the Securities Act. Discounts,
concessions, commissions and similar selling expenses, if any, attributable
to
the sale of shares will be borne by a selling stockholder. The selling
stockholders may agree to indemnify any agent, dealer or broker-dealer that
participates in transactions involving sales of the shares if liabilities are
imposed on that person under the Securities Act.
To
the
extent required, this prospectus may be amended or supplemented from time to
time to describe a specific plan of distribution.
The
selling stockholders may from time to time pledge or grant a security interest
in some or all of the shares of common stock owned by them and, if they default
in the performance of their secured obligations, the pledgees or secured parties
may offer and sell the shares of common stock from time to time under this
prospectus after we have filed an amendment to this prospectus under Rule
424(b)(3) or other applicable provision of the Securities Act amending the
description of selling stockholders to include the pledgee, transferee or other
successors-in-interest as selling stockholders under this prospectus.
The
selling stockholders also may transfer the shares of common stock in other
circumstances, in which case the transferees, pledgees or other
successors-in-interest will be the selling beneficial owners for purposes of
this prospectus and may sell the shares of common stock from time to time under
this prospectus after we have filed an amendment to this prospectus under Rule
424(b)(3) or other applicable provision of the Securities Act amending the
description of selling stockholders to include the pledgee, transferee or other
successors-in-interest as selling stockholders under this prospectus.
In
connection with the sale of the common stock or interests therein, the selling
stockholders may enter into hedging transactions with broker-dealers or other
financial institutions, which may in turn engage in short sales of the common
stock in the course of hedging the positions they assume. The selling
stockholders may also sell shares of the common stock short and deliver these
securities to close out their short positions, or loan or pledge the common
stock to broker-dealers that in turn may sell these securities. The selling
stockholders may also enter into option or other transactions with
broker-dealers or other financial institutions or the creation of one or more
derivative securities that require the delivery to such broker-dealer or other
financial institution of shares offered by this prospectus, which shares such
broker-dealer or other financial institution may resell pursuant to this
prospectus (as supplemented or amended to reflect such transaction).
The
selling stockholders and any broker-dealers or agents that are involved in
selling the shares of common stock may be deemed to be “underwriters” within the
meaning of the Securities Act in connection with such sales. In such event,
any
commissions received by such broker-dealers or agents and any profit on the
resale of the shares of common stock purchased by them may be deemed to be
underwriting commissions or discounts under the Securities Act. We are required
to pay all fees and expenses incident to the registration of the shares of
common stock. We have agreed to indemnify the selling stockholders against
certain losses, claims, damages and liabilities, including liabilities under
the
Securities Act.
The
selling stockholders have advised us that they have not entered into any
agreements, understandings or arrangements with any underwriters or
broker-dealers regarding the sale of their shares of common stock, nor is there
an underwriter or coordinating broker acting in connection with a proposed
sale
of shares of common stock by any selling stockholder. If we are notified by
any
selling stockholder that any material arrangement has been entered into with
a
broker-dealer for the sale of shares of common stock, if required, we will
file
a supplement to this prospectus. If the selling stockholders use this prospectus
for any sale of the shares of common stock, they will be subject to the
prospectus delivery requirements of the Securities Act.
The
anti-manipulation rules of Regulation M under the Securities Exchange Act of
1934, as amended, may apply to sales of our common stock and activities of
the
selling stockholders.
Under
a
trading restriction agreement among LivePerson, certain selling stockholders
(each, a “Shareholder”) and ESOP Management and Trust Services Ltd. (“ESOP
Management”), each Shareholder agreed, that together with certain other members
of a designated group to which such Shareholder has been assigned under the
Merger Agreement (together a “Restricted Group”), not to directly or indirectly,
sell, offer to sell, grant any option for the sale of, assign, transfer, pledge,
hypothecate, or otherwise encumber or dispose of (“Transfer”) to any third party
any legal or beneficial interest in shares of our common stock (whether pursuant
to the registration statement of which this prospectus forms a part, or
otherwise), on any given day, constituting more than 10% of the average daily
trading volume of our common stock over the 60 days before such day, nor can
a
Restricted Group Transfer, in any given week, more than 30% of the average
daily
volume of our common over the 60 days before such week, in each case without
the
prior written consent of LivePerson, which may be given or withheld in its
sole
discretion. Notwithstanding the preceding sentence, any Shareholder may Transfer
any or all of its shares of our common stock to any third party if (i) such
Transfer is executed as a private block sale not executed upon any exchange
or
through any public securities market and (ii) such third party agrees to be
bound by the trading restriction agreement. The foregoing provisions will be
in
effect until either October 3, 2010 or October 3, 2011, as applicable to such
Restricted Group. Any Transfer permitted to be made pursuant to the trading
restriction agreement shall be brokered by ESOP Management or any of its
affiliates. Each Shareholder has agreed to pay all commissions of ESOP
Management or any of its affiliates related to any Transfer by such Shareholder.
LivePerson has agreed to pay ESOP Management’s other reasonable fees and
expenses, including attorneys fees, travel expenses, postal and delivery
charges, and all other out-of-pocket expenses incurred, in accepting and
performing its duties as administrator under the trading restriction
agreement.
Additionally,
under lock-up agreements entered into by Arthur Fuhrer LLC and Yinon Exel LLC,
none of the shares held by such stockholders may be sold or Transferred until
October 3, 2008. At such date, one-half of the shares held by each such
stockholder will be released from the terms of this lock-up agreement. The
remaining one-half of the shares held by each such stockholder will be released
quarterly, over the succeeding two years, in equal portions each
quarter.
LEGAL
MATTERS
The
validity of the shares offered by this prospectus will be passed upon by Wilmer
Cutler Pickering Hale and Dorr LLP, New York, New York.
EXPERTS
The
consolidated financial statements LivePerson, Inc. and subsidiaries as of
December 31, 2006 and 2005, and for each of the years then ended,
and
management’s assessment of the effectiveness of internal control over financial
reporting as of December 31, 2006 (which is included in Management’s Report on
Internal Control over Financial Reporting) have been incorporated by reference
herein and in the registration statement of which this prospectus forms a part
in reliance upon the reports of BDO Seidman, LLP, independent registered public
accounting firm, and upon the authority of said firm as experts in accounting
and auditing.
The
consolidated statements of operations, stockholders’ equity,
and cash
flows of LivePerson, Inc. and subsidiaries for the year ended December 31,
2004, have been incorporated by reference herein and in the registration
statement of which this prospectus forms a part in reliance upon the report
of
KPMG LLP, independent registered public accounting firm, incorporated by
reference herein and upon the authority of said firm as experts in auditing
and
accounting.
The
financial statements for Proficient Systems, Inc. as of December 31, 2005 and
2004, and for the years then ended, have been incorporated by reference herein
and in the registration statement of which this prospectus forms a part in
reliance upon the reports of Moore Stephens Tiller LLC, independent registered
public accounting firm, incorporated by reference herein and upon the authority
of said firm as experts in auditing and accounting.
WHERE
YOU CAN FIND MORE INFORMATION
We
file
reports, proxy statements and other documents with the SEC. You may read and
copy any document we file at the SEC’s public reference room at 100 F Street,
N.E., Room 1580, Washington, D.C. 20549. You should call 1-800-SEC-0330 for
more
information on the public reference room. Our SEC filings are also available
to
you on the SEC’s Internet site at www.sec.gov.
This
prospectus is part of a registration statement that we filed with the SEC.
The
registration statement contains more information than this prospectus regarding
us and our common stock, including certain exhibits and schedules. You can
obtain a copy of the registration statement from the SEC at the address listed
above or from the SEC’s Internet site.
INCORPORATION
OF DOCUMENTS BY REFERENCE
The
SEC
requires us to “incorporate” into this prospectus information that we file with
the SEC in other documents. This means that we can disclose important
information to you by referring to other documents that contain that
information. The information incorporated by reference is considered to be
part
of this prospectus. Information contained in this prospectus and information
that we file with the SEC in the future and incorporate by reference in this
prospectus automatically updates and supersedes previously filed information.
We
incorporate by reference the documents listed below and any future filings
we
make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange
Act
after the date of this prospectus and prior to the sale of all the shares
covered by this prospectus.
| |
·
|
our
Annual Report on Form 10-K for the fiscal year ended December 31,
2006;
|
| |
·
|
our
Quarterly Reports on Form 10-Q for the three-month periods ended
March 31,
2007, June 30, 2007 and September 30,
2007;
|
| |
·
|
our
Current Reports on Form 8-K filed on September 20, 2006, February
8, 2007,
June 25, 2007, August 2, 2007, September 10, 2007 and October 9,
2007;
and
|
| |
·
|
the
description of our Common Stock in our Registration Statement on
Form 8-A
(File No. 000-30141) under Section 12(g) of the Exchange
Act.
|
A
statement contained in a document incorporated by reference into this prospectus
shall be deemed to be modified or superceded for purposes of this prospectus
to
the extent that a statement contained in this prospectus, any prospectus
supplement or in any other subsequently filed document which is also
incorporated in this prospectus modifies or replaces such statement. Any
statements so modified or superceded shall not be deemed, except as so modified
or superceded, to constitute a part of this prospectus.
You
may
request a copy of these documents, which will be provided to you at no cost,
by
writing or telephoning us using the following contact information:
| |
LivePerson,
Inc.
Attention:
Investor Relations
462
Seventh Avenue, 3rd
Floor
New
York, NY 10018
Telephone:
(212) 609-4200
|
|
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
The
expenses in connection with the issuance and distribution of the common stock
being registered under the prospectus are listed below (all amounts other than
Securities and Exchange Commission registration fee are estimated). We will
pay
all costs, expenses and fees in connection with the registration of the shares.
The selling stockholders will pay all brokerage commissions, underwriting
discounts, commissions, transfer taxes and other similar selling expenses,
if
any, associated with the sale of the shares of common stock by them, which
are
not listed below.
|
Description
|
|
Amount
|
|
|
Securities
and Exchange Commission registration fee
|
|
$
|
648
|
|
|
Legal
fees and expenses
|
|
|
20,000
|
|
|
State
“blue sky” fees and expenses
|
|
|
5,000
|
|
|
Accounting
fees and expenses
|
|
|
25,000
|
|
|
Printing
and engraving costs
|
|
|
5,000
|
|
|
Transfer
agent’s fees and expenses
|
|
|
5,000
|
|
|
Miscellaneous
|
|
|
9,352
|
|
|
Total
expenses
|
|
$
|
70,000
|
|
Item
15. Indemnification of Directors and Officers.
Our
amended and restated certificate of incorporation provides that the liability
of
a director of LivePerson shall be eliminated or limited to the fullest extent
permitted by the General Corporation Law of the State of Delaware. Under the
Delaware General Corporation Law, our directors have a fiduciary duty to
LivePerson which is not eliminated by this provision of the amended and restated
certificate of incorporation and, in appropriate circumstances, equitable
remedies such as injunctive or other forms of non-monetary relief will remain
available.
Section
102 of the Delaware General Corporation Law allows a corporation to eliminate
the personal liability of directors of a corporation to the corporation or
its
stockholders for monetary damages for a breach of fiduciary duty as a director,
except where the director breached his duty of loyalty, failed to act in good
faith, engaged in intentional misconduct or knowingly violated a law, authorized
the payment of a dividend or approved a stock repurchase in violation of
Delaware corporate law or obtained an improper personal benefit. LivePerson
has
included such a provision in its Certificate of Incorporation.
Section
145 of the General Corporation Law of Delaware provides that a corporation
has
the power to indemnify a director, officer, employee or agent of the corporation
and certain other persons serving at the request of the corporation in related
capacities against amounts paid and expenses incurred in connection with an
action or proceeding to which he is or is threatened to be made a party by
reason of such position, if such person shall have acted in good faith and
in a
manner he reasonably believed to be in or not opposed to the best interests
of
the corporation, and, in any criminal proceeding, if such person had no
reasonable cause to believe his conduct was unlawful; provided that, in the
case
of actions brought by or in the right of the corporation, no indemnification
shall be made with respect to any matter as to which such person shall have
been
adjudged to be liable to the corporation unless and only to the extent that
the
adjudicating court determines that such indemnification is proper under the
circumstances.
We
have
entered into indemnification agreements with each of our current directors
and
executive officers, in addition to the indemnification provided for in
LivePerson’s amended and restated certificate of incorporation. LivePerson
believes that these provisions and agreements are necessary to attract and
retain qualified directors and executive officers. In addition, LivePerson
has
obtained liability insurance for its directors and officers.
Item
16. Exhibits.
|
Exhibit
Number
|
|
Description
of Exhibit
|
|
2.1
|
|
Agreement
and Plan of Merger, dated as of June 22, 2006, among LivePerson,
Inc.,
Kasamba Inc., Kato MergerCo, Inc. and Yoav Leibovich as Shareholders’
Representative (incorporated by reference from Exhibit 10.5 to the
Quarterly Report on Form 10-Q/A filed by LivePerson on August 9,
2007)
|
| |
|
|
|
4.1
|
|
Fourth
Amended and Restated Certificate of Incorporation (incorporated by
reference to the identically-numbered exhibit to LivePerson’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”))
|
| |
|
|
|
4.2
|
|
Second
Amended and Restated Bylaws, as amended (incorporated by reference
to the
identically-numbered exhibit to the 2000 Form 10-K)
|
| |
|
|
|
4.3
|
|
Specimen
common stock certificate (incorporated by reference to the
identically-numbered exhibit to LivePerson’s Registration Statement on
Form S-1, as amended (Registration No. 333-96689))
|
| |
|
|
|
5.1
|
|
Opinion
of Wilmer Cutler Pickering Hale and Dorr LLP
|
| |
|
|
|
23.1
|
|
Consent
of BDO Seidman, LLP
|
| |
|
|
|
23.2
|
|
Consent
of KPMG LLP
|
| |
|
|
|
23.3
|
|
Consent
of Moore Stephens Tiller LLC
|
| |
|
|
|
23.4
|
|
Consent
of Wilmer Cutler Pickering Hale and Dorr LLP (contained in the opinion
filed as Exhibit Number 5.1 to this registration
statement)
|
| |
|
|
|
24.1
|
|
Power
of Attorney (see signature page to this registration
statement)
|
Item
17. Undertakings.
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
of 1933, as amended (the “Securities 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. Notwithstanding
the
foregoing, any increase or decrease in the volume of securities offered (if
the
total 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
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 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 this Registration Statement or any material change
to
such information in this Registration Statement;
provided,
however,
that
paragraphs (1)(i) and (1)(ii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934, as amended (the “Exchange Act”), that are incorporated by reference in
this Registration Statement.
2. That,
for
the purposes of determining any liability under the Securities Act, each
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 the 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.
The
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 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan’s annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by reference in
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.
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 indemnification provisions described herein, 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.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant certifies
that
it has reasonable grounds to believe that it meets all of the requirements
for
filing on Form S-3 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 December
7, 2007.
| |
|
|
| |
LIVEPERSON, INC |
|
|
|
| |
By: |
/s/
Robert
P. LoCascio |
| |
Name Robert
P. LoCascio |
| |
Title:
Chairman
of the Board and Chief Executive Officer
|
POWER
OF ATTORNEY
KNOW
ALL
PERSONS BY THESE PRESENTS that each person whose signature appears below hereby
constitutes and appoints Robert P. LoCascio, Timothy E. Bixby and Monica L.
Greenberg, and each of them, such person’s true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for and in such
person’s name, place and stead, in the capacities indicated below, to sign any
and all amendments (including post-effective amendments) to this Registration
Statement, and to file or cause to be filed the 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, and each
of
them, or his or her substitute or substitutes, may lawfully do or cause to
be
done by virtue hereof.
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.
|
Signature
|
|
Title
|
|
Date
|
|
/s/
Robert P. LoCascio
Robert
P. LoCascio
|
|
Chairman
of the Board and
Chief
Executive Officer
(principal
executive officer)
|
|
December
7, 2007
|
|
/s/
Timothy Bixby
Timothy
E. Bixby
|
|
President,
Chief Financial
Officer,
and Director (principal
financial
and accounting officer)
|
|
|
|
/s/
Steven Berns
Steven
Berns
|
|
Director
|
|
|
|
/s/
Kevin C. Lavan
Kevin
C. Lavan
|
|
Director
|
|
|
|
/s/
William Wesemann
William
Wesemann
|
|
Director
|
|
|
EXHIBIT
INDEX
|
Exhibit
Number
|
|
Description
of Exhibit
|
|
2.1
|
|
Agreement
and Plan of Merger, dated as of June 22, 2006, among LivePerson,
Inc.,
Kasamba Inc., Kato MergerCo, Inc. and Yoav Leibovich as Shareholders’
Representative (incorporated by reference from Exhibit 10.5 to the
Quarterly Report on Form 10-Q/A filed by LivePerson on August 9,
2007)
|
| |
|
|
|
4.1
|
|
Fourth
Amended and Restated Certificate of Incorporation (incorporated by
reference to the identically-numbered exhibit to LivePerson’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”))
|
| |
|
|
|
4.2
|
|
Second
Amended and Restated Bylaws, as amended (incorporated by reference
to the
identically-numbered exhibit to the 2000 Form 10-K)
|
| |
|
|
|
4.3
|
|
Specimen
common stock certificate (incorporated by reference to the
identically-numbered exhibit to LivePerson’s Registration Statement on
Form S-1, as amended (Registration No. 333-96689))
|
| |
|
|
|
5.1
|
|
Opinion
of Wilmer Cutler Pickering Hale and Dorr LLP
|
| |
|
|
|
23.1
|
|
Consent
of BDO Seidman, LLP
|
| |
|
|
|
23.2
|
|
Consent
of KPMG LLP
|
| |
|
|
|
23.3
|
|
Consent
of Moore Stephens Tiller LLC
|
| |
|
|
|
23.4
|
|
Consent
of Wilmer Cutler Pickering Hale and Dorr LLP (contained in the opinion
filed as Exhibit Number 5.1 to this registration
statement)
|
| |
|
|
|
24.1
|
|
Power
of Attorney (see signature page to this registration
statement)
|