SEC Form SC 13D/A filed by LivePerson Inc. (Amendment)

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

(Rule 13d-101)

INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT

TO § 240.13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO

§ 240.13d-2(a)

(Amendment No. 2)¹

LivePerson, Inc.

(Name of Issuer)

Common Stock, par value $0.001 per share

(Title of Class of Securities)

538146101

(CUSIP Number)

JEFFREY C. SMITH

STARBOARD VALUE LP

777 Third Avenue, 18th Floor

New York, New York 10017

(212) 845-7977

STEVE WOLOSKY, ESQ.

ANDREW FREEDMAN, ESQ.

OLSHAN FROME WOLOSKY LLP

1325 Avenue of the Americas

New York, New York 10019

(212) 451-2300

(Name, Address and Telephone Number of Person

Authorized to Receive Notices and Communications)

July 20, 2022

(Date of Event Which Requires Filing of This Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box ¨.

Note:  Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits.  See § 240.13d-7 for other parties to whom copies are to be sent.

1              The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

The following constitutes Amendment No. 2 to the Schedule 13D filed by the undersigned (“Amendment No. 2”). This Amendment No. 2 amends the Schedule 13D as specifically set forth herein.

Item 2 is hereby amended to add the following:

In connection with the Agreement defined and described in Item 4 below, John R. McCormack, Vanessa Pegueros and Yael Zheng are no longer members of the Section 13(d) group and shall cease to be Reporting Persons immediately after the filing of this Amendment No. 2. The remaining Reporting Persons will continue filing as a group statements on Schedule 13D with respect to their beneficial ownership of securities of the Issuer to the extent required by applicable law. Each of the remaining Reporting Persons is party to the Joint Filing Agreement defined and described in Item 6 below.

Item 3 is hereby amended and restated to read as follows:

The Shares purchased by each of Starboard V&O Fund, Starboard S LLC, Starboard C LP, Starboard L Master, Starboard X Master and held in the Starboard Value LP Account were purchased with working capital (which may, at any given time, include margin loans made by brokerage firms in the ordinary course of business) in open market purchases, except as otherwise noted, as set forth in Schedule B, which is incorporated by reference herein. The aggregate purchase price of the 4,098,775 Shares beneficially owned by Starboard V&O Fund is approximately $96,635,449, excluding brokerage commissions. The aggregate purchase price of the 589,370 Shares beneficially owned by Starboard S LLC is approximately $13,835,487, excluding brokerage commissions. The aggregate purchase price of the 364,260 Shares beneficially owned by Starboard C LP is approximately $8,554,684, excluding brokerage commissions. The aggregate purchase price of the 253,094 Shares beneficially owned by Starboard L Master is approximately $5,948,002, excluding brokerage commissions. The aggregate purchase price of the 945,388 Shares beneficially owned by Starboard X Master is approximately $22,227,619, excluding brokerage commissions. The aggregate purchase price of the 754,113 Shares held in the Starboard Value LP Account is approximately $17,784,950, excluding brokerage commissions.

The Shares beneficially owned by Ms. Zheng are held by the Winthrop Alan White and Yael Zheng Revocable Trust, of which she is a co-trustee with her spouse, and were purchased in the open market with personal funds. The aggregate purchase price of the 3,000 shares beneficially owned by Ms. Zheng is approximately $53,759, excluding brokerage commissions.

The Shares purchased by Ms. Pegueros were purchased with personal funds in the open market. The aggregate purchase price of the 1,349 Shares beneficially owned by Ms. Pegueros is $25,094, including brokerage commissions.

The Shares purchased by Mr. McCormack were purchased with personal funds in the open market. The aggregate purchase price of the 950 Shares beneficially owned by Mr. McCormack is $24,177, including brokerage commissions.

Item 4 is hereby amended to add the following:

On July 20, 2022, Starboard Value LP and certain of its affiliates (collectively, “Starboard”) entered into an agreement with the Issuer (the “Agreement”) regarding the composition of the Issuer’s Board of Directors (the “Board”) and certain other matters. The following description of the Agreement is qualified in its entirety by reference to the Agreement, which is attached as Exhibit 99.1 hereto and is incorporated herein by reference.

Pursuant to the terms of the Agreement, the Issuer agreed to appoint one director candidate to be identified by Starboard (the “Starboard Director”) and one director candidate to be identified by the Issuer (the “Additional Independent Director” and together with the Starboard Director, the “New Directors”) as Class I directors, in each case pursuant to the procedures set forth in the Agreement. Promptly following their selection and approval for appointment to the Board, but no earlier than the conclusion of the Issuer’s 2022 Annual Meeting of Stockholders (the “Annual Meeting”), the Issuer agreed that the Board will take all necessary actions (including by increasing the size of the Board) to simultaneously appoint the New Directors to the Board. The Issuer also agreed that Peter Block will depart from the Board no later than upon conclusion of the 2022 Annual Meeting and that the vacancy created by such departure may only be filled during the Standstill Period (as defined below) by an independent director candidate (the “Vacancy Appointee” and together with the New Directors, the “Agreed Appointees”) identified by the Company and approved by Starboard, to be determined in good faith, pursuant to the procedures set forth in the Agreement.

Pursuant to the terms of the Agreement, the Issuer also agreed, among other things, (i) to use its reasonable efforts to hold the 2022 Annual Meeting no later than August 4, 2022, (ii) that during the Standstill Period, the size of the Board shall not be increased to more than nine directors without Starboard’s prior written consent, (iii) that immediately upon the appointment of the New Directors, the Board will take all necessary actions to form an Operating Committee of the Board charged with working with the Issuer’s Chief Executive Officer and management to identify and recommend opportunities for further improvement in growth and margin performance, which shall consist of no more than four directors, including the New Directors, one of which will be appointed as Chairperson of the Operating Committee, (iv) to appoint each of the Agreed Appointees to at least one committee of the Board; provided, however, that the Starboard Director will be appointed to each of the Nominating and Corporate Governance Committee and the Compensation Committee, and (v) that promptly following the conclusion of the 2022 Annual Meeting and the appointment of the Vacancy Appointee, the Board will take all necessary actions to result in the Board’s Class II being composed of three directors, none of whom is an Agreed Appointee, except that if the Vacancy Appointee has not been appointed to the Board prior to the expiration of the Standstill Period, the Board will ensure that Class II of the Board is not comprised of any New Director.

The Agreement also provides that if any Starboard Director (or any replacement director) is unable or unwilling to serve as a director or ceases to be a director for any reason at any time prior to the expiration of the Standstill Period, then Starboard has the ability to recommend a substitute person to serve on the Board who meets certain qualifications in accordance with the terms and procedures set forth in the Agreement. The Agreement further provides that if the Additional Independent Director or the Vacancy Appointee (or any replacement director thereof) is unable or unwilling to serve as a director or ceases to be a director for any reason at any time prior to the expiration of the Standstill Period, the Issuer and Starboard will follow the procedures relating to the appointment of the Additional Independent Director or the Vacancy Appointee, as applicable, subject to certain exceptions, until a candidate is selected as a replacement for the Additional Independent Director or the Vacancy Appointee, in each case in accordance with the terms and procedures set forth in the Agreement. Starboard’s rights with respect to the approval of the Vacancy Appointee and the replacement of the Agreed Appointees are contingent upon Starboard beneficially owning in the aggregate at least the lesser of 3.0% of the Issuer’s then outstanding Shares and 2,244,487 Shares.

Pursuant to the terms of the Agreement, Starboard agreed, among other things, that Starboard shall appear in person or by proxy at the 2022 Annual Meeting and vote all of the Shares beneficially owned by Starboard at the 2022 Annual Meeting (i) in favor of all of the Issuer’s nominees, (ii) in favor of the ratification of the appointment of BDO USA, LLP as the Issuer’s registered public accounting firm for the fiscal year 2022, (iii) in accordance with the Board’s recommendation with respect to the Issuer’s “say-on-pay” proposal, and (iv) in accordance with the Board’s recommendation with respect to any other Issuer proposal or stockholder proposal presented at the 2022 Annual Meeting; provided, however, that in the event that Institutional Shareholder Services Inc. (“ISS”) or Glass Lewis & Co., LLC (“Glass Lewis”) recommends otherwise with respect to the Issuer’s “say-on-pay” proposal or any other Issuer proposal or stockholder proposal presented at the 2022 Annual Meeting (other than proposals relating to the election or removal of directors), then, in each case, Starboard shall be permitted to vote in accordance with the ISS or Glass Lewis recommendation.

Starboard also agreed to certain customary standstill provisions, effective as of the date of the Agreement through the earlier of (x) the date that is 15 business days prior to the deadline for the submission of stockholder nominations for the Issuer’s 2023 Annual Meeting of Stockholders (the “2023 Annual Meeting”) and (y) the date that is 100 days prior to the first anniversary of the 2022 Annual Meeting (the “Standstill Period”), prohibiting it from, among other things, (i) soliciting proxies or consents with respect to securities of the Issuer, (ii) entering into a voting agreement or forming, joining or participating in a “group” with other stockholders of the Issuer, other than certain affiliates of Starboard, (iii) seeking or submitting or encouraging any person to submit nominees in furtherance of a contested solicitation for the appointment, election or removal of directors; provided, however, that Starboard may take actions to identify director candidates in connection with the 2023 Annual Meeting so long as such actions do not create a public disclosure obligation for Starboard or the Issuer, are not publicly disclosed by Starboard, and are undertaken on a basis reasonably designed to be confidential and in accordance in all material respects with Starboard’s normal practices in the circumstances, (iv) submitting any proposal for consideration by stockholders of the Issuer at any annual or special meeting of stockholders or through any written consent, soliciting a third party to make an acquisition proposal, commenting on any third-party acquisition proposal, or calling or seeking a special meeting of stockholders or to act by written consent, (v) seeking, alone or in concert with others, representation on the Board other than as described in the Agreement, or (vi) advising, encouraging, supporting, or influencing any person with respect to the voting or disposition of the Shares.

The Issuer and Starboard also made certain customary representations, agreed to mutual non-disparagement provisions and agreed to jointly issue a press release announcing certain terms of the Agreement.

Item 5 is hereby amended and restated to read as follows:

The aggregate percentage of Shares reported owned by each person named herein is based upon 74,449,659 Shares outstanding, as of May 2, 2022, which is the total number of Shares outstanding as reported in the Issuer’s Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on May 10, 2022.

Percentage: Approximately 5.5%

Percentage: Less than 1%

Percentage: Less than 1%

Percentage: Less than 1%

Percentage: Less than 1%

Percentage: Less than 1%

Percentage: Less than 1%

Percentage: Approximately 1.3%

Percentage: Approximately 9.4%

Percentage: Approximately 9.4%

Percentage: Approximately 9.4%

Percentage: Approximately 9.4%

Percentage: Approximately 9.4%

Percentage: Less than 1%

Percentage: Less than 1%

Percentage: Less than 1%

Each Reporting Person, as a member of a “group” with the other Reporting Persons for the purposes of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, may be deemed the beneficial owner of the Shares directly owned by the other Reporting Persons. Each Reporting Person disclaims beneficial ownership of such Shares except to the extent of his, her or its pecuniary interest therein.

Item 6 is hereby amended to add the following:

On July 20, 2022, Starboard and the Issuer entered into the Agreement defined and described in Item 4 above and attached as Exhibit 99.1 hereto.

On July 20, 2022, the Reporting Persons entered into a Joint Filing Agreement in which the Reporting Persons who will remain Reporting Persons subsequent to this Amendment No. 2 agreed to the joint filing on behalf of each of them of statements on Schedule 13D with respect to the securities of the Issuer to the extent as required by applicable law. A copy of this agreement is attached hereto as Exhibit 99.2 and is incorporated herein by reference.

Item 7 is hereby amended to add the following exhibits:

SIGNATURES

After reasonable inquiry and to the best of his knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.

Dated: July 21, 2022