UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

FORM 10-Q

 

x QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES

EXCHANGE ACT OF 1934

 

For the quarterly period ended JUNE 30, 2012

 

or

 

¨ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES

EXCHANGE ACT OF 1934

 

For the transition period from ____________________ to ____________________

 

Commission file number: 000-30141

 

LIVEPERSON, INC.

(Exact Name of Registrant as Specified in Its Charter)

 

DELAWARE		13-3861628
(State or Other Jurisdiction of Incorporation or Organization)		(IRS Employer Identification No.)
475 TENTH AVENUE, 5th FLOOR NEW YORK, NEW YORK		10018
(Address of Principal Executive Offices)		(Zip Code)

 

(212) 609-4200

(Registrant’s Telephone Number, Including Area Code)

 

Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.  Yes x No ¨

 

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).  Yes x  No ¨

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definition of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one).

 

Large accelerated filer ¨	Accelerated filer x	Non-accelerated filer ¨	Smaller reporting company ¨
(Do not check if a smaller reporting company)

 

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).  Yes ¨ No x

 

As of July 31, 2012, 55,652,591 shares of the registrant’s common stock were outstanding.

 

 

LIVEPERSON, INC.

JUNE 30, 2012

FORM 10-Q

 

INDEX

 

		Page
PART I.	FINANCIAL INFORMATION	4
ITEM 1.	FINANCIAL STATEMENTS	4
	CONDENSED CONSOLIDATED BALANCE SHEETS AS OF JUNE 30, 2012 (UNAUDITED) AND DECEMBER 31, 2011	4
	UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF INCOME FOR THE THREE AND SIX MONTHS ENDED JUNE 30, 2012 AND 2011	5
	UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME FOR THE THREE AND SIX MONTHS ENDED JUNE 30, 2012 AND 2011	6
	UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS FOR THE SIX MONTHS ENDED JUNE 30, 2012 AND 2011	7
	NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS	8
ITEM 2.	MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS	20
ITEM 3.	QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK	29
ITEM 4.	CONTROLS AND PROCEDURES	30
PART II.	OTHER INFORMATION	30
ITEM 1.	LEGAL PROCEEDINGS	30
ITEM 1A.	RISK FACTORS	31
ITEM 2.	UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS	31
ITEM 3.	DEFAULTS UPON SENIOR SECURITIES	31
ITEM 4.	MINE SAFETY DISCLOSURES	31
ITEM 5.	OTHER INFORMATION	31
ITEM 6.	EXHIBITS	32

 

 

FORWARD-LOOKING STATEMENTS

 

STATEMENTS IN THIS REPORT ABOUT LIVEPERSON, INC. THAT ARE NOT HISTORICAL FACTS ARE FORWARD-LOOKING STATEMENTS BASED ON OUR CURRENT EXPECTATIONS, ASSUMPTIONS, ESTIMATES AND PROJECTIONS ABOUT LIVEPERSON AND OUR INDUSTRY. THESE FORWARD-LOOKING STATEMENTS ARE SUBJECT TO RISKS AND UNCERTAINTIES THAT COULD CAUSE ACTUAL FUTURE EVENTS OR RESULTS TO DIFFER MATERIALLY FROM SUCH STATEMENTS. ANY SUCH FORWARD-LOOKING STATEMENTS ARE MADE PURSUANT TO THE SAFE HARBOR PROVISIONS OF THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995. IT IS ROUTINE FOR OUR INTERNAL PROJECTIONS AND EXPECTATIONS TO CHANGE AS THE YEAR OR EACH QUARTER IN THE YEAR PROGRESS, AND THEREFORE IT SHOULD BE CLEARLY UNDERSTOOD THAT THE INTERNAL PROJECTIONS AND BELIEFS UPON WHICH WE BASE OUR EXPECTATIONS MAY CHANGE PRIOR TO THE END OF EACH QUARTER OR THE YEAR. ALTHOUGH THESE EXPECTATIONS MAY CHANGE, WE ARE UNDER NO OBLIGATION TO INFORM YOU IF THEY DO. OUR COMPANY POLICY IS GENERALLY TO PROVIDE OUR EXPECTATIONS ONLY ONCE PER QUARTER, AND NOT TO UPDATE THAT INFORMATION UNTIL THE NEXT QUARTER. ACTUAL EVENTS OR RESULTS MAY DIFFER MATERIALLY FROM THOSE CONTAINED IN THE PROJECTIONS OR FORWARD-LOOKING STATEMENTS. FACTORS THAT COULD CAUSE OR CONTRIBUTE TO SUCH DIFFERENCES INCLUDE THOSE DISCUSSED IN PART II, ITEM 1A, “RISK FACTORS.”

 

 

PART I.  FINANCIAL INFORMATION

 

ITEM 1. FINANCIAL STATEMENTS

 

LIVEPERSON, INC.

 

CONDENSED CONSOLIDATED BALANCE SHEETS

(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)

 

		June 30, 2012				December 31, 2011
		(Unaudited)				(Note1(B))
ASSETS
Current assets:
Cash and cash equivalents		$	100,576			$	93,278
Accounts receivable, net of allowance for doubtful accounts of $708 and $688 as of June 30, 2012 and December 31, 2011, respectively			19,591				20,999
Prepaid expenses and other current assets			7,178				5,390
Deferred tax assets, net			2,456				2,342
Total current assets			129,801				122,009
Property and equipment, net			13,327				13,879
Intangibles, net			14,625				1,095
Goodwill			25,249				24,090
Deferred tax assets, net			2,374				2,829
Deferred implementation costs, net of current			222				247
Security deposits			546				356
Other assets			1,554				1,546
Total assets		$	187,698			$	166,051
LIABILITIES AND STOCKHOLDERS’ EQUITY
Current liabilities:
Accounts payable		$	9,364			$	8,258
Accrued expenses			14,060				12,019
Deferred revenue			4,342				5,378
Total current liabilities			27,766				25,655
Deferred revenue, net of current			2,863				1,152
Other liabilities			1,554				1,546
Total liabilities			32,183				28,353
Commitments and contingencies
Stockholders’ equity:
Preferred stock, $.001 par value per share; 5,000,000 shares authorized, 0 shares issued and outstanding at June 30, 2012 and December 31, 2011			—				—
Common stock, $.001 par value per share; 100,000,000 shares authorized, 55,542,463 shares issued and outstanding at June 30, 2012 and 54,090,344 shares issued and outstanding at December 31, 2011			56				54
Additional paid-in capital			240,620				226,113
Accumulated deficit			(84,872	)			(88,135	)
Accumulated other comprehensive loss			(289	)			(334	)
Total stockholders’ equity			155,515				137,698
Total liabilities and stockholders’ equity		$	187,698			$	166,051

 

SEE ACCOMPANYING NOTES TO UNAUDITED CONDENSED

CONSOLIDATED FINANCIAL STATEMENTS.

 

 

LIVEPERSON, INC.

 

CONDENSED CONSOLIDATED STATEMENTS OF INCOME

(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)

UNAUDITED

 

		Three Months Ended June 30,								Six Months Ended June 30,
		2012				2011				2012				2011
Revenue		$	38,505			$	31,851			$	75,264			$	62,234
Operating expenses:
Cost of revenue			8,492				8,685				16,414				16,780
Product development			7,219				5,016				13,877				9,393
Sales and marketing			13,017				9,379				24,107				18,239
General and administrative			9,342				5,386				15,467				9,346
Amortization of intangibles			11				11				87				22
Total operating expenses			38,081				28,477				69,952				53,780
Income from operations			424				3,374				5,312				8,454
Other (expense) income:
Financial (expense) income			(254	)			208				77				363
Interest income			21				16				36				30
Total other (expense) income, net			(233	)			224				113				393
Income before provision for income taxes			191				3,598				5,425				8,847
Provision for income taxes			51				1,402				2,162				3,419
Net income		$	140			$	2,196			$	3,263			$	5,428
Basic net income per common share		$	0.00			$	0.04			$	0.06			$	0.10
Diluted net income per common share		$	0.00			$	0.04			$	0.06			$	0.10
Weighted average shares outstanding used in basic net income per common share calculation			55,146,901				52,735,556				54,786,499				52,409,769
Weighted average shares outstanding used in diluted net income per common share calculation			57,150,256				55,553,247				56,649,160				55,125,730

 

SEE ACCOMPANYING NOTES TO UNAUDITED CONDENSED

CONSOLIDATED FINANCIAL STATEMENTS.

 

 

LIVEPERSON, INC.

 

CONDENSED CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME

(IN THOUSANDS)

UNAUDITED

 

		Three Months Ended June 30,								Six Months Ended June 30,
		2012				2011				2012				2011
Net income		$	140			$	2,196			$	3,263			$	5,428
Foreign currency translation adjustment			58				(22	)			45				(29	)
Comprehensive income		$	198			$	2,174			$	3,308			$	5,399

 

SEE ACCOMPANYING NOTES TO UNAUDITED CONDENSED

CONSOLIDATED FINANCIAL STATEMENTS.

 

 

LIVEPERSON, INC.

 

CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS

(IN THOUSANDS)

UNAUDITED

 

		Six Months Ended June 30,
		2012				2011
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income		$	3,263			$	5,428
Adjustments to reconcile net income to net cash provided by operating activities:
Stock-based compensation expense			4,794				3,214
Depreciation			3,329				3,225
Amortization of intangibles			153				635
Deferred income taxes			(740	)			185
Provision for doubtful accounts, net			20				120
CHANGES IN OPERATING ASSETS AND LIABILITIES:
Accounts receivable			1,388				(1,376	)
Prepaid expenses and other current assets			(1,920	)			1,244
Deferred implementation costs			25				(49	)
Security deposits			(189	)			39
Other assets			—				116
Accounts payable			1,296				852
Accrued expenses			2,173				(2,123	)
Deferred revenue			675				300
Net cash provided by operating activities			14,267				11,810
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchases of property and equipment, including capitalized software			(2,970	)			(4,297	)
Acquisition of Look.io, net of cash acquired			(900	)			—
Acquisition of Amadesa technology assets			(10,798	)			—
Acquisition of Proficient			(77	)			(75	)
Net cash used in investing activities			(14,745	)			(4,372	)
CASH FLOWS FROM FINANCING ACTIVITIES:
Excess tax benefit from the exercise of employee stock options			1,156				545
Proceeds from issuance of common stock in connection with the exercise of options			6,573				5,078
Net cash provided by financing activities			7,729				5,623
Effect of foreign exchange rate changes on cash and cash equivalents			47				(19	)
Net increase in cash and cash equivalents			7,298				13,042
Cash and cash equivalents at the beginning of the period			93,278				61,336
Cash and cash equivalents at the end of the period		$	100,576			$	74,378

  

Supplemental disclosure of non-cash investing activities:

 

During the period ended June 30, 2012, the Company issued 109,517 shares of common stock, valued at $1,984, in connection with the acquisition of Look.io on June 13, 2012.

 

Cash flows from investing activities for the six months ended June 30, 2012 and June 30, 2011 do not include the purchases of approximately $1.3 million and $877, respectively of capitalized equipment related to the Company’s co-location facilities because the corresponding invoices are included in accounts payable for the corresponding six month period, and therefore did not have an impact on cash flows.

 

During the six months ended June 30, 2012 and 2011, total net cash paid for income taxes was $1.5 million and $511, respectively.

 

SEE ACCOMPANYING NOTES TO UNAUDITED CONDENSED

CONSOLIDATED FINANCIAL STATEMENTS.

 

 

LIVEPERSON, INC.

 

NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)

 

(1) SUMMARY OF OPERATIONS AND SIGNIFICANT ACCOUNTING POLICIES

 

(A) SUMMARY OF OPERATIONS

 

LivePerson, Inc. (the “Company” or “LivePerson”) provides online engagement solutions offering a cloud-based platform which enables businesses to proactively connect with consumers through chat, voice, and content delivery, across multiple channels and screens, including websites, social media, and mobile devices. The Company’s engagements are driven by insights derived from a broad set of consumer and business data, including historical, behavioral, operational, and third party data. Each engagement is based on proprietary analytics and a real-time understanding of consumer needs and business objectives. The Company’s products, coupled with its domain knowledge and industry expertise, have been proven to maximize the effectiveness of the online channel — by increasing sales, as well as consumer satisfaction and loyalty ratings for their customers, while also enabling their customers to reduce consumer service costs.

 

LivePerson monitors and analyzes valuable online consumer behavioral data on behalf of their customers. Spanning the breadth of an online visitor session starting from an initial keyword search, through actions on their customer’s website, and even into a shopping cart and an executed sale, this data enables the Company to develop unique insights into consumer behavior during specific transactions within a customer’s user base.

 

The Company’s primary revenue source is from the sale of LivePerson services to businesses of all sizes. The Company also offers an online marketplace that connects independent service providers (“Experts”) who provide information and knowledge for a fee via real-time chat with individual consumers (“Users”).

 

LivePerson was incorporated in the State of Delaware in November 1995 and the LivePerson service was introduced in November 1998. In April 2000, the company completed an initial public offering and is currently traded on the Nasdaq and the Tel Aviv Stock Exchange. LivePerson is headquartered in New York City with offices in Atlanta, San Francisco, London, Melbourne, and Tel Aviv.

  

(B) UNAUDITED CONDENSED CONSOLIDATED FINANCIAL INFORMATION

 

The accompanying condensed consolidated financial statements as of June 30, 2012 and for the three and six months ended June 30, 2012 and 2011 are unaudited. In the opinion of management, the unaudited condensed consolidated financial statements have been prepared on the same basis as the annual financial statements and reflect all adjustments, which include only normal recurring adjustments, necessary to present fairly the consolidated financial position of LivePerson as of June 30, 2012, and the consolidated results of operations, comprehensive income and cash flows for the interim periods ended June 30, 2012 and 2011. The financial data and other information disclosed in these notes to the condensed consolidated financial statements related to these periods are unaudited. The results of operations for any interim period are not necessarily indicative of the results of operations for any other future interim period or for a full fiscal year. The condensed consolidated balance sheet at December 31, 2011 has been derived from audited consolidated financial statements at that date.

 

Certain information and note disclosures normally included in financial statements prepared in accordance with generally accepted accounting principles have been condensed or omitted pursuant to the rules and regulations of the Securities and Exchange Commission (the “SEC”). These unaudited interim condensed consolidated financial statements should be read in conjunction with the Company’s audited consolidated financial statements and notes thereto for the year ended December 31, 2011, included in the Company’s Annual Report on Form 10-K filed with the SEC on March 13, 2012.

 

(C) REVENUE RECOGNITION

 

The majority of the Company’s revenue is generated from monthly service revenues and related professional services from the sale of the LivePerson services. Because the Company provides its application as a service, the Company follows the provisions of Financial Accounting Standards Board (“FASB”) Accounting Standards Codification (“ASC”) 605-10-S99, “Revenue Recognition” and ASC 605-25,“Revenue Recognition with Multiple-Element Arrangements.” The Company charges a monthly fee, which varies by type of service, the level of customer usage and website traffic, and in some cases, the number of orders placed via the Company’s online engagement solutions.

 

 

For certain of the Company’s larger customers, the Company may provide call center labor through an arrangement with one or more of several qualified vendors. For most of these customers, the Company passes the fee it incurs with the labor provider and its fee for the hosted services through to its customers in the form of a fixed fee for each order placed via the Company’s online engagement solutions. For these Pay for Performance (“PFP”) arrangements, the Company recognizes revenue net of the labor provider’s fee in accordance with ASC 605-45, “Principal Agent Considerations,” due primarily to the fact that the call center labor vendor is the primary obligor with respect to the labor services provided. Additionally, the Company performs as an agent without risk of loss for collection and does not bear inventory risk with respect to the outsourced labor services. Finally, the Company does not provide any part of the labor services, has no latitude in establishing prices for the labor services and generally does not have discretion in selecting the vendor.

 

The majority of the Company’s larger customers also pay a professional services fee related to implementation. The Company defers these implementation fees and associated direct costs and recognizes them ratably over the expected term of the customer relationship upon commencement of the hosting services. The Company may also charge professional service fees related to additional training, business consulting and analysis in support of the LivePerson services.

  

The Company also sells certain of the LivePerson services directly via Internet download. These services are marketed as LivePerson Pro and LivePerson Contact Center for small and mid-sized businesses (“SMBs”), and are paid for almost exclusively by credit card. Credit card payments accelerate cash flow and reduce the Company’s collection risk, subject to the merchant bank’s right to hold back cash pending settlement of the transactions. Sales of LivePerson Pro and LivePerson Contact Center may occur with or without the assistance of an online sales representative, rather than through face-to-face or telephone contact that is typically required for traditional direct sales.

 

The Company recognizes monthly service revenue based upon the fee charged for the LivePerson services, provided that there is persuasive evidence of an arrangement, no significant Company obligations remain, collection of the resulting receivable is probable and the amount of fees to be paid is fixed or determinable. The Company’s service agreements typically have twelve month terms and, in some cases, are terminable or may terminate upon 30 to 90 days’ notice without penalty. When professional service fees add value to the customer on a standalone basis, the Company recognizes professional service fees upon completion and customer acceptance in accordance with FASB Accounting Standards Update 2009-13. This guidance establishes a selling price hierarchy for determining the selling price of a deliverable, which is based on: (a) vendor-specific objective evidence; (b) third-party evidence; or (c) estimates. If a professional services arrangement does not qualify for separate accounting, the Company recognizes the fees, and the related labor costs, ratably over a period of 48 months, representing the Company’s current estimate of the term of the customer relationship.

 

For revenue generated from online transactions between Experts and Users, the Company recognizes revenue net of the Expert fees in accordance with ASC 605-45, “Principal Agent Considerations,” due primarily to the fact that the Expert is the primary obligor. Additionally, the Company performs as an agent without any risk of loss for collection, and is not involved in selecting the Expert or establishing the Expert’s fee. The Company collects a fee from the User and retains a portion of the fee, and then remits the balance to the Expert. Revenue from these transactions is recognized when there is persuasive evidence of an arrangement, no significant Company obligations remain, collection of the resulting receivable is probable and the amount of fees to be paid is fixed and determinable.

 

(D) STOCK-BASED COMPENSATION

 

The Company follows FASB ASC 718-10, “Stock Compensation,” which addresses the accounting for transactions in which an entity exchanges its equity instruments for goods or services, with a primary focus on transactions in which an entity obtains employee services in share-based payment transactions. ASC 718-10 requires measurement of the cost of employee services received in exchange for an award of equity instruments based on the grant-date fair value of the award (with limited exceptions). Incremental compensation costs arising from subsequent modifications of awards after the grant date must be recognized.

 

The following table summarizes stock-based compensation expense related to employee stock options under ASC 718-10 included in Company’s Statements of Income for the three and six months ended June 30, 2012 and 2011:

 

		Three Months Ended June 30,								Six Months Ended June 30,
		2012				2011				2012				2011
Cost of revenue		$	388			$	248			$	701			$	546
Product development expense			789				441				1,399				881
Sales and marketing expense			739				443				1,291				779
General and administrative expense			722				547				1,403				1,008
Total stock based compensation included in operating expenses		$	2,638			$	1,679			$	4,794			$	3,214

 

 

The per share weighted average fair value of stock options granted during the three and six months ended June 30, 2012 was $8.29 and $7.24, respectively. The per share weighted average fair value of stock options granted during the three and six months ended June 30, 2011 was $7.07 and $6.97, respectively. The fair value of each option grant is estimated on the date of grant using the Black-Scholes option-pricing model with the following weighted average assumptions:

 

		Three Months Ended June 30,								Six Months Ended June 30,
		2012				2011				2012				2011
Dividend yield			0.0	%			0.0	%			0.0	%			0.0	%
Risk-free interest rate			0.72% - 0.84	%			2.9% - 3.5	%			0.72% - 0.87	%			2.9% - 3.7	%
Expected life (in years)			5.0				5.0				5.0				5.0
Historical volatility			60.6% -60.7	%			60.7% - 61.5	%			60.3% -60.8	%			60.7% - 61.5	%

 

   During 1998, the Company established the Stock Option and Restricted Stock Purchase Plan (the “1998 Plan”). Under the 1998 Plan, the Board of Directors could issue incentive stock options or nonqualified stock options to purchase up to 5,850,000 shares of common stock. The 2000 Stock Incentive Plan (the “2000 Plan”) succeeded the 1998 Plan. Under the 2000 Plan, the options which had been outstanding under the 1998 Plan were incorporated in the 2000 Plan increasing the number of shares available for issuance under the plan by approximately 4,150,000, thereby reserving for issuance 10,000,000 shares of common stock in the aggregate.

 

The Company established the 2009 Stock Incentive Plan (as amended and restated, the “2009 Plan”) as a successor to the 2000 Plan. Under the 2009 Plan, the options which had been outstanding under the 2000 Plan were incorporated into the 2009 Plan and the Company increased the number of shares available for issuance under the plan by 6,000,000. The Company amended the 2009 stock incentive plan (the “Amended 2009 Plan”) effective June 7, 2012. The Amended 2009 Plan increased the number of shares authorized for issuance under the plan by an additional 4,250,000, thereby reserving for issuance 23,817,744 shares of common stock in the aggregate. Options to acquire common stock granted thereunder have ten-year terms. As of June 30, 2012, approximately 11,427,000 shares of common stock were reserved for issuance under the 2009 Plan (taking into account all option exercises through June 30, 2012). As of June 30, 2012, there was approximately $28,198 of total unrecognized compensation cost related to nonvested share-based compensation arrangements. That cost is expected to be recognized over a weighted average period of approximately 2.1 years.

 

In March 2000, the Company adopted the 2000 Employee Stock Purchase Plan with 450,000 shares of common stock initially reserved for issuance (the “2000 ESPP”). The 2000 ESPP expired on its terms on the last day of April 2010.

 

In June 2010, our stockholders approved the 2010 Employee Stock Purchase Plan with 1,000,000 shares of common stock initially reserved for issuance. As of June 30, 2012, approximately 899,000 shares of common stock were reserved for issuance under the Employee Stock Purchase Plan (taking into account all share purchases through June 30, 2012).

 

A summary of the Company’s stock option activity and weighted average exercise prices follows:

 

		Options				Weighted Average Exercise Price
Options outstanding at December 31, 2011			8,843,413			$	7.91
Options granted			1,120,300				14.15
Options exercised			(1,388,890	)			4.81
Options cancelled			(363,083	)			9.00
Options outstanding at June 30, 2012			8,211,740				9.24
Options exercisable at June 30, 2012			2,774,457			$	5.89

 

The total value of stock options exercised during the six months ended June 30, 2012 was approximately $13,739. The total intrinsic value of options exercisable at June 30, 2012 was approximately $36,071. The total intrinsic value of nonvested options at June 30, 2012 was approximately $44,206. The total intrinsic value of all outstanding options at June 30, 2012 was $80,277.

 

 

A summary of the status of the Company’s nonvested shares as of December 31, 2011, and changes during the six months ended June 30, 2012 is as follows:

 

		Shares				Weighted Average Grant Date Fair Value
Nonvested Shares at December 31, 2011			6,038,014			$	5.04
Granted			1,120,300				7.24
Vested			(1,362,573	)			4.14
Cancelled			(358,458	)			4.73
Nonvested Shares at June 30, 2012			5,437,283			$	5.76

 

(E) BASIC AND DILUTED NET INCOME PER SHARE

 

The Company calculates earnings per share (“EPS”) in accordance with the provisions of ASC 260-10 and the guidance of SEC Staff Accounting Bulletin (“SAB”) No. 98. Under ASC 260-10, basic EPS excludes dilution for common stock equivalents and is computed by dividing net income or loss attributable to common shareholders by the weighted average number of common shares outstanding for the period. All options, warrants or other potentially dilutive instruments issued for nominal consideration are required to be included in the calculation of basic and diluted net income attributable to common stockholders. Diluted EPS is calculated using the treasury stock method and reflects the potential dilution that could occur if securities or other contracts to issue common stock were exercised or converted into common stock and resulted in the issuance of common stock.

 

Diluted net income per common share for the three and six months ended June 30, 2012 includes the effect of options to purchase 5,315,243 and 4,141,393 shares, respectively, of common stock with a weighted average exercise price of $6.87 and $5.60, respectively. Diluted net income per common share for the three and six months ended June 30, 2011 includes the effect of options to purchase 6,963,746 and 6,744,246 shares, respectively, of common stock with a weighted average exercise price of $4.90 and $4.77, respectively.

 

A reconciliation of shares used in calculating basic and diluted earnings per share follows:

 

		Three Months Ended June 30,								Six Months Ended June 30,
		2012				2011				2012				2011
Basic			55,146,901				52,735,556				54,786,499				52,409,769
Effect of assumed exercised options			2,003,355				2,817,691				1,862,661				2,715,961
Diluted			57,150,256				55,553,247				56,649,160				55,125,730

 

(F) SEGMENT REPORTING

 

The Company accounts for its segment information in accordance with the provisions of ASC 280-10, “Segment Reporting.” ASC 280-10 establishes annual and interim reporting standards for operating segments of a company. ASC 280-10 requires disclosures of selected segment-related financial information about products, major customers, and geographic areas based on the Company’s internal accounting methods. The Company is organized into two operating segments for purposes of making operating decisions and assessing performance. The Business segment facilitates real-time online interactions – chat, voice, and content delivery across multiple channels and screens for global corporations of all sizes. The Consumer segment facilitates online transactions between Experts and Users and sells its services to consumers. Both segments currently generate their revenue primarily in the U.S. The chief operating decision makers evaluate performance, make operating decisions, and allocate resources based on the operating income of each segment. The reporting segments follow the same accounting polices used in the preparation of the Company’s consolidated financial statements which are described in the summary of significant accounting policies. The Company allocates cost of revenue, sales and marketing and amortization of purchased intangibles to the segments, but it does not allocate product development expenses, general and administrative expenses and income tax expense because management does not use this information to measure performance of the operating segments. There are currently no inter-segment sales.

 

 

Summarized financial information by segment for the three months ended June 30, 2012, based on the Company’s internal financial reporting system utilized by the Company’s chief operating decision makers, follows:

 

		Consolidated				Corporate				Business				Consumer
Revenue:
Hosted services — Business		$	32,151			$	—			$	32,151			$	—
Hosted services — Consumer			3,961				—				—				3,961
Professional services			2,393				—				2,393				—
Total revenue			38,505				—				34,544				3,961
Cost of revenue			8,492				—				7,939				553
Sales and marketing			13,017				—				11,624				1,393
Amortization of intangibles			11				—				11				—
Unallocated corporate expenses			16,561				16,561				—				—
Operating income (loss)		$	424			$	(16,561	)		$	14,970			$	2,015

 

Summarized financial information by segment for the three months ended June 30, 2011, based on the Company’s internal financial reporting system utilized by the Company’s chief operating decision makers, follows:

 

		Consolidated				Corporate				Business				Consumer
Revenue:
Hosted services — Business		$	26,736			$	—			$	26,736			$	—
Hosted services — Consumer			3,735				—				—				3,735
Professional services			1,380				—				1,380				—
Total revenue			31,851				—				28,116				3,735
Cost of revenue			8,685				—				7,688				997
Sales and marketing			9,379				—				7,822				1,557
Amortization of intangibles			11				—				11				—
Unallocated corporate expenses			10,402				10,402				—				—
Operating income (loss)		$	3,374			$	(10,402	)		$	12,595			$	1,181

 

Revenues attributable to domestic and foreign operations for the three months ended June 30, 2012 and 2011, follows:

 

		June 30,
		2012				2011
United States		$	29,225			$	24,311
United Kingdom			5,245				4,299
Other countries			4,035				3,241
Total revenue		$	38,505			$	31,851

 

 

 

Summarized financial information by segment for the six months ended June 30, 2012, based on the Company’s internal financial reporting system utilized by the Company’s chief operating decision makers, follows:

 

		Consolidated				Corporate				Business				Consumer
Revenue:
Hosted services — Business		$	63,390			$	—			$	63,390			$	—
Hosted services — Consumer			7,809				—				—				7,809
Professional services			4,065				—				4,065				—
Total revenue			75,264				—				67,455				7,809
Cost of revenue			16,414				—				15,306				1,108
Sales and marketing			24,107				—				21,114				2,993
Amortization of intangibles			87				—				87				—
Unallocated corporate expenses			29,344				29,344				—				—
Operating income (loss)		$	5,312			$	(29,344	)		$	30,948			$	3,708

 

Summarized financial information by segment for the six months ended June 30, 2011, based on the Company’s internal financial reporting system utilized by the Company’s chief operating decision makers, follows:

 

		Consolidated				Corporate				Business				Consumer
Revenue:
Hosted services — Business		$	52,321			$	—			$	52,321			$	—
Hosted services — Consumer			7,393				—				—				7,393
Professional services			2,520				—				2,520				—
Total revenue			62,234				—				54,841				7,393
Cost of revenue			16,780				—				14,875				1,905
Sales and marketing			18,239				—				15,137				3,102
Amortization of intangibles			22				—				22				—
Unallocated corporate expenses			18,739				18,739				—				—
Operating income (loss)		$	8,454			$	(18,739	)		$	24,807			$	2,386

 

Revenues attributable to domestic and foreign operations for the six months ended June 30, 2012 and 2011, follows:

 

		June 30,
		2012				2011
United States		$	57,380			$	47,945
United Kingdom			10,121				7,994
Other countries			7,763				6,295
Total revenue		$	75,264			$	62,234

 

Long-lived assets by geographic region follows:

 

		June 30, 2012				December 31, 2011
United States		$	31,835			$	28,626
Israel			23,883				13,167
United Kingdom			2,179				2,249
Total long-lived assets		$	57,897			$	44,042

  

 

(G) GOODWILL AND INTANGIBLE ASSETS

 

The changes in the carrying amount of goodwill for the six months ended June 30, 2012 are as follows:

 

		Total				Business				Consumer
Balance as of December 31, 2011		$	24,090			$	16,066			$	8,024
Adjustments to goodwill:
Look.io acquisition (see Note 3)			1,082				1,082				—
Contingent earnout payments (see Note 3)			77				77				—
Balance as of June 30, 2012		$	25,249			$	17,225			$	8,024

 

The changes in the carrying amount of goodwill for the year ended December 31, 2011 are as follows:

 

		Total				Business				Consumer
Balance as of December 31, 2010		$	24,015			$	15,991			$	8,024
Adjustments to goodwill:
Contingent earnout payments (see Note 3)			75				75				—
Balance as of December 31, 2011		$	24,090			$	16,066			$	8,024

  

Intangible assets are summarized as follows (see Note 3):

 

Acquired Intangible Assets

 

		As of June 30, 2012
		Gross Carrying Amount				Weighted Average Amortization Period				Accumulated Amortization
Amortizing intangible assets:
Technology		$	19,882				3.6 years			$	5,607
Customer contracts			2,400				3.0 years				2,400
Trade names			630				3.0 years				630
Non-compete agreements			410				1.2 years				410
Patents			475				11.0 years				125
Other			235				3.0 years				235
Total		$	24,032							$	9,407

 

		As of December 31, 2011
		Gross Carrying Amount				Weighted Average Amortization Period				Accumulated Amortization
Amortizing intangible assets:
Technology		$	6,199				3.8 years			$	5,474
Customer contracts			2,400				3.0 years				2,400
Trade names			630				3.0 years				630
Non-compete agreements			410				1.2 years				410
Patents			475				11.0 years				105
Other			235				3.0 years				235
Total		$	10,349							$	9,254

 

 

 

Amortization expense is calculated on a straight-line basis over the estimated useful life of the asset. Aggregate amortization expense for intangible assets was $77 and $153 for the three and six months ended June 30, 2012, respectively, and $318 and $635 for the three and six months ended June 30, 2011, respectively. Estimated amortization expense for the next five years and thereafter is: $874 in 2012, $4,448 in 2013, $3,661 in 2014, $2,743 in 2015, $2,743 in 2016 and $156 thereafter.

 

(H) RECENTLY ISSUED ACCOUNTING STANDARDS

 

In December 2011, the FASB issued ASU No. 2011-11, Balance Sheet (Topic 210): Disclosures about Offsetting Assets and Liabilities. This ASU is intended to provide enhanced disclosures that will enable users of its financial statements to evaluate the effect or potential effect of netting arrangements on an entity’s financial position. This includes the effect or potential effect of rights of setoff associated with an entity’s recognized assets and recognized liabilities within the scope of this update. The amendments require enhanced disclosures by requiring improved information about financial instruments and derivative instruments that are either (1) offset in accordance with either Section 210-20-45 or Section 815-10-45 or (2) subject to an enforceable master netting arrangement or similar agreement, irrespective of whether they are offset in accordance with either Section 210-20-45 or Section 815-10-45. An entity is required to apply this amendment for annual reporting periods beginning on or after January 1, 2013, and interim periods within those annual periods. An entity should provide the disclosures required by those amendments retrospectively for all comparative periods presented. ASU No. 2011-11 relates specifically to disclosures, it will not have an impact on the Company’s consolidated financial statements.

 

In May 2011, the FASB issued ASU No. 2011-04, Fair Value Measurement (Topic 820): Amendments to Achieve Common Fair Value Measurement and Disclosure Requirements in U.S. GAAP and IFRSs. This ASU represents the converged guidance of the FASB and the IASB (the Boards) on fair value measurement. The collective efforts of the Boards and their staffs, reflected in ASU 2011-04, have resulted in common requirements for measuring fair value and for disclosing information about fair value measurements, including a consistent meaning of the term “fair value.” The Boards have concluded the common requirements will result in greater comparability of fair value measurements presented and disclosed in financial statements prepared in accordance with U.S. GAAP and IFRSs. The amendments to the FASB Accounting Standards Codification (Codification) in this ASU are to be applied prospectively. For public entities, the amendments are effective during interim and annual periods beginning after December 15, 2011. Early application by public entities is not permitted. This update did not have an impact on the Company’s consolidated financial statements.

 

(2) BALANCE SHEET COMPONENTS

 

Property and Equipment

 

Property and equipment is summarized as follows:

 

		June 30, 2012				December 31, 2011
Computer equipment and software		$	32,423			$	30,182
Furniture, equipment and building improvements			4,892				4,356
			37,315				34,538
Less accumulated depreciation			23,988				20,659
Total		$	13,327			$	13,879

  

 

Accrued Expenses

 

Accrued expenses consist of the following:

 

		June 30, 2012				December 31, 2011
Payroll and other employee related costs		$	6,458			$	6,435
Professional services and consulting and other vendor fees			6,927				4,686
Sales commissions			294				446
Other			381				452
Total		$	14,060			$	12,019

 

(3) ACQUISITIONS

 

Proficient Systems

 

On July 18, 2006, the Company acquired Proficient Systems, Inc. (“Proficient”), a provider of hosted proactive chat solutions that help companies generate revenue on their web sites. This transaction was accounted for under the purchase method of accounting and, accordingly, the operating results of Proficient were included in the Company’s consolidated results of operations from the date of acquisition. The acquisition added several U.K. based financial services customers and provided an innovative product marketing team. During the twelve months ended December 31, 2011, the Company incurred additional costs related to the earn-out litigation in the amount of $75, resulting in an increase in goodwill.

 

Based on the achievement of certain revenue targets as of March 31, 2007, LivePerson was contingently required to issue up to an additional 2,050,000 shares of common stock. Based on these targets, the Company issued 1,127,985 shares of common stock valued at $8,894, based on the quoted market price of the Company’s common stock on the date the contingency was resolved, and made a cash payment of $20 related to this contingency. At March 31, 2007, the value of these shares has been allocated to goodwill with a corresponding increase in equity. In accordance with the purchase agreement, the earn-out consideration was subject to review by Proficient’s Shareholders’ Representative. On July 31, 2007, the Company was served with a complaint filed in the United States District Court for the Southern District of New York by the Shareholders’ Representative of Proficient (“Plaintiff”). The complaint filed by the Shareholders’ Representative sought certain documentation relating to calculation of the earn-out consideration, and demanded payment of damages on the grounds that substantially all of the remaining contingently issuable earn-out shares should have been paid. The case proceeded to trial, which ended on November 4, 2010. On June 27, 2012, the District Court issued its decision, ruling substantially in favor of the Company with the exception of certain immaterial claims by Plaintiff that were upheld and for which the Court ordered the payment of a nominal amount in damages by the Company to the former shareholders of Proficient. This payment will not have a material impact on the Company’s ongoing operations. This amount is included in Goodwill on the Company’s June 30, 2012 balance sheet.

 

NuConomy Ltd.

 

On April 13, 2010, the Company acquired all of the outstanding shares of NuConomy Ltd. (“NuConomy”), an Israeli-based development-stage company whose web analytics and optimization platform is intended to help companies better assess and understand website and social marketing performance, in exchange for aggregate cash consideration of $800. This transaction was accounted for as an asset purchase. The amount of the net asset was allocated to “Intangibles, net.”

 

Amadesa Ltd.

 

On May 31, 2012, the Company acquired technology assets from Amadesa, Ltd., an Israeli-based start-up, for aggregate cash consideration of approximately $10,301. The acquisition provides the Company with sophisticated, machine-learning predictive modeling that it expects to leverage across multiple engagement channels, enhancing its real-time intelligent engagement platform. The asset was allocated to “Intangibles, net” on the Company’s June 30, 2012, balance sheet and will be amortized over its expected period of benefit. The acquisition did not have a material impact on the Company’s reported operating results. Total acquisition costs incurred in the three months ended June 30, 2012 were approximately $283 and are included in “Intangibles, net” on the Company’s June 30, 2012, balance sheet.

 

 

Look.io

 

On June 13, 2012, the Company acquired Look.io, a start-up that provides mobile engagement solutions. The transaction was accounted for under the purchase method of accounting and, accordingly, the operating results of Look.io were included in the Company’s consolidated results of operations from the date of acquisition. The acquisition did not have a material impact on the Company’s reported operating results.

 

The purchase price was approximately $2,884, which included the issuance of 109,517 shares of the Company’s common stock valued at approximately $1,984, based on the quoted market price of the Company’s common stock on the day of closing, and a cash payment of $900. Total acquisition costs incurred in the three months ended June 30, 2012 were approximately $187 and are included in general and administrative expenses in the Company’s Consolidated Statements of Income for the same period. The acquisition did not have a material impact on the Company’s reported operating results. The acquisition adds plug-and-play mobile engagement capabilities to LivePerson’s platform allowing its customers to connect with consumers on mobile devices. All 109,517 shares are included in the weighted average shares outstanding used in basic and diluted net income per share as of the acquisition date. The purchase price was allocated based on management’s preliminary estimate of fair values, taking into account all relevant information available. Actual amounts for each of the fair values of the assets and liabilities acquired may vary. A substantial amount of the purchase price was allocated to intangibles (technology) and the excess was allocated to goodwill. The intangible asset will be amortized over its expected period of benefit. In addition to the purchase price, certain founders can earn additional compensation by achieving an employment milestone. The Company will accrue this contingent compensation ratably over the requisite employment period.

 

Management’s preliminary allocation of the purchase price in connection with the Look.io acquisition is as follows:

 

Intangible assets (technology)		$	2,884
Goodwill			1,082
			3,966
Deferred tax liability			(1,082	)
Total purchase price consideration		$	2,884

 

(4) FAIR VALUE MEASUREMENTS

 

The Company follows the provisions of ASC 820-10, Fair Value Measurements, for financial assets and liabilities. This ASC defines fair value, establishes a framework for measuring fair value, and expands the related disclosure requirements. The ASC indicates, among other things, that a fair value measurement assumes a transaction to sell an asset or transfer a liability occurs in the principal market for the asset or liability or, in the absence of a principal market, the most advantageous market for the asset or liability. In order to increase consistency and comparability in fair value measurements, ASC 820-10 establishes a hierarchy for observable and unobservable inputs used to measure fair value into three broad levels, which are described below:

 

 

·

Level 1: Quoted prices (unadjusted) in active markets that are accessible at the measurement date for assets or liabilities. The fair value hierarchy gives the highest priority to Level 1 inputs.

 

·

Level 2:  Observable prices that are based on inputs not quoted on active markets, but corroborated by market data.

 

·

Level 3:  Unobservable inputs are used when little or no market data is available. The fair value hierarchy gives the lowest priority to Level 3 inputs.

 

In determining fair value, the Company utilizes valuation techniques that maximize the use of observable inputs and minimize the use of unobservable inputs to the extent possible as well as considers counterparty credit risk in its assessment of fair value.

 

The carrying value of cash and cash equivalents, accounts receivable, accounts payable and certain accrued expenses approximate fair value because of their short-term maturity. On a nonrecurring basis, the Company uses fair value measures when analyzing asset impairment. Long-lived tangible assets are reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. If it is determined such indicators are present and the review indicates that the assets will not be fully recoverable, based on undiscounted estimated cash flows over the remaining amortization periods, their carrying values are reduced to estimated fair value. The Company uses an income approach and inputs that constitute level 3.  During the third quarter of each year, the Company evaluates goodwill for impairment at the reporting unit level. The Company uses a combination of discounted cash flows and other qualitative factors in accordance with ASU No. 2011-08 to determine whether it is "more likely than not" that the fair value of a reporting unit is less than its carrying amount as a basis for determining whether it is necessary to perform the two-step goodwill impairment test.  This measurement is classified based on level 3 input.

 

(5) COMMITMENTS AND CONTINGENCIES

 

Leases

 

The Company leases facilities and certain equipment under agreements accounted for as operating leases. These leases generally require the Company to pay all executory costs such as maintenance and insurance. Rental expense for operating leases for the three and six months ended June 30, 2012 was approximately $1,746 and $3,345, respectively. Rental expense for operating leases for the three and six months ended June 30, 2011 was approximately $1,777 and $3,466, respectively.

 

Employee Benefit Plans

 

The Company has a 401(k) defined contribution plan covering all eligible employees. The Company provides for employer matching contributions equal to 50% of employee contributions, up to the lesser of 5% of eligible compensation or $6. Matching contributions are deposited in to the employees 401(k) account and are subject to 5 year graded vesting. Salaries and related expenses include $197 and $364 of employer matching contributions for the three and six months ended June 30, 2012, respectively. Salaries and related expenses include $146 and $296 of employer matching contributions for the three and six months ended June 30, 2011, respectively.

 

(6) LEGAL MATTERS

 

On July 31, 2007, the Company was served with a complaint filed in the United States District Court for the Southern District of New York by the Shareholders’ Representative of Proficient Systems, Inc. In connection with the July 2006 acquisition of Proficient, the Company was contingently required to issue up to 2,050,000 shares of common stock based on the terms of an earn-out provision in the merger agreement. In accordance with the terms of the earn-out provision, the Company issued 1,127,985 shares of LivePerson common stock in the second quarter of 2007 to the former shareholders of Proficient. The amended complaint filed by the Shareholders’ Representative, or Plaintiff, on May 12, 2009 alleges that the Company breached the merger agreement by failing to properly account for net annualized revenue, and demands payment of damages on the grounds that substantially all of the remaining contingently issuable earn-out shares should have been paid. The case proceeded to trial, which ended on November 4, 2010. On June 27, 2012, the District Court issued its decision, ruling substantially in favor of the Company with the exception of certain immaterial claims by Plaintiff that were upheld and for which the Court ordered the payment of a nominal amount in damages by the Company to the former shareholders of Proficient. This payment will not have a material impact on the Company’s ongoing operations.  This amount is included in Goodwill on the Company’s June 30, 2012 balance sheet.

 

On June 15, 2011, the Company filed suit against Lodsys, LLC, in the United States District Court for the Northern District of Illinois, seeking a declaratory judgment that the Company’s products do not infringe four patents which Lodsys had previously asserted were infringed by the Company’s customers, as well as a declaratory judgment that those four patents are invalid; that case was transferred to the Eastern District of Wisconsin on October 25, 2011, based on a joint motion filed by the parties. On July 5, 2011, Lodsys countersued the Company and other plaintiffs in similarly-situated declaratory judgment actions, including DriveTime Automotive Group, Inc., ESET, LLC, ForeSee Results, LLC, OpinionLab, Inc., and The New York Times Company, in the United States District Court for the Eastern District of Texas. In the Texas case, Lodsys alleged that the Company infringes two of the patents involved in the co-pending declaratory judgment case, and sought damages for past infringement, and an injunction against future infringement. In July 2012, the parties reached a mutual, confidential agreement resolving all claims and counterclaims against each party. The terms of the agreement will not have a material impact on the Company’s ongoing operations. In August 2012, Lodsys and the Company filed notices of dismissal with prejudice of all pending claims asserted in both litigations, which the parties expect will be endorsed by the courts in August 2012, thereby dismissing with prejudice all claims in these litigations involving the Company.

 

On February 7, 2012, the Company filed suit against Pragmatus Telecom LLC in the District of Delaware, seeking a declaratory judgment that the Company’s products do not infringe three patents owned by Pragmatus which Pragmatus had previously asserted were infringed by certain of the Company’s customers. On March 13, 2012, the Company amended its complaint to add a request for a declaratory judgment that those three patents are invalid. On April 6, 2012, Pragmatus answered the Amended Complaint, and asserted counterclaims against the Company asserting infringement of the same three patents. Pursuant to a June 1, 2012 Scheduling Order entered by the Court, trial in this matter will begin on or after September 8, 2014. Although the Company currently does not expect that the outcome of this matter will have a material adverse effect on its financial condition or results of operations, litigation is inherently unpredictable. Therefore, judgments could be rendered or settlements entered, that could adversely affect the Company’s operating results or cash flows in a particular period.

 

The Company routinely assesses all of its litigation and threatened litigation as to the probability of ultimately incurring a liability, and records its best estimate of the ultimate loss in situations where it assesses the likelihood of loss as probable.

 

 

From time to time, the Company is involved in other legal proceedings arising in the ordinary course of its business, which may arise from, among other things, direct legal claims brought by or against the Company, or from claims brought against the Company’s customers for which the Company has a contractual indemnification obligation.

 

 

ITEM 2. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

 

CRITICAL ACCOUNTING POLICIES AND ESTIMATES

 

GENERAL

 

Our discussion and analysis of our financial condition and results of operations are based upon our consolidated financial statements, which are prepared in conformity with accounting principles generally accepted in the United States of America. As such, we are required to make certain estimates, judgments and assumptions that management believes are reasonable based upon the information available. We base these estimates on our historical experience, future expectations and various other assumptions that we believe to be reasonable under the circumstances, the results of which form the basis for our judgments that may not be readily apparent from other sources. These estimates and assumptions affect the reported amounts of assets and liabilities and the disclosure of contingent assets and liabilities at the dates of the consolidated financial statements and the reported amounts of revenue and expenses during the reporting periods. These estimates and assumptions relate to estimates of the carrying amount of goodwill, intangibles, stock based-compensation, valuation allowances for deferred income taxes, accounts receivable, the expected term of a customer relationship, accruals and other factors. We evaluate these estimates on an ongoing basis. Actual results could differ from those estimates under different assumptions or conditions, and any differences could be material.

 

OVERVIEW

 

LivePerson provides online engagement solutions offering a cloud-based platform which enables businesses to pro-actively connect with consumers and an online marketplace providing information and knowledge.  We are organized into two operating segments: Business and Consumer. The Business segment facilitates real-time online interactions — chat, voice, and content delivery, across multiple channels and screens for global corporations of all sizes. The Consumer segment facilitates online transactions between independent service providers (“Experts”) and individual consumers (“Users”) seeking information and knowledge for a fee via real-time chat. We were incorporated in the State of Delaware in November 1995 and the LivePerson service was introduced initially in November 1998.

 

In order to sustain growth in these segments, our strategy is to expand our position as the leading provider of online engagement solutions that facilitate real-time assistance and expert advice. To accomplish this, we are focused on the following current initiatives:

 

·

Expanding Business with Existing Customers and Adding New Customers. We are expanding our sales capacity by adding enterprise and midmarket sales agents. We have also expanded our efforts to retain existing SMB customers through increased interaction with them during the early stages of their usage of our services.

 

·

Introducing New Products and Capabilities.   We continue to invest in product marketing, research and development and executive personnel to support our expanding efforts to build and launch new products and capabilities to support existing customer deployments, and to further penetrate our total addressable market. These investments have initially been focused in the areas of online marketing engagement and chat transcript text analysis. Over time, we expect to develop and launch additional capabilities that leverage our existing market position as a leader in proactive, intelligence-driven online engagement.

 

·

Expanding our international presence. We continue to increase our investment in sales and support personnel in the United Kingdom, Latin America and Western Europe, particularly France and Germany. We are also working with sales and support partners as we expand our investment in the Asia-Pacific region. We continue to improve the multi-language and translation capabilities within our hosted solutions to further support international expansion.

 

 

SECOND QUARTER 2012

 

Financial overview of the three months ended June 30, 2012 compared to the three months ended June 30, 2011:

 

·

Total revenue increased 21% to $38.5 million from $31.9 million.

 

·

Revenue from our Business segment increased 23% to $34.5 million from $28.1 million.

 

·

Gross Profit margin increased to 78% from 73%.

 

·

Operating expenses increased 34% to $38.1 million from $28.5 million.

 

·

Net income decreased 94% to $140,000 from $2.2 million.

 

The significant accounting policies which we believe are the most critical to aid in fully understanding and evaluating the reported consolidated financial results include the following:

 

REVENUE RECOGNITION

 

The majority of our revenue is generated from monthly service revenues and related professional services from the sale of the LivePerson services. Because we provide our application as a service, we follow the provisions of ASC 605-10-S99, “Revenue Recognition” and ASC 605-25, “Revenue Recognition with Multiple-Element Arrangements.” We charge a monthly fee, which varies by type of service, the level of customer usage and website traffic, and in some cases, the number of orders placed via our online engagement solutions.

 

For certain of our larger customers, we may provide call center labor through an arrangement with one or more of several qualified vendors. For most of these customers, we pass the fee we incur with the labor provider and our fee for the hosted services through to our customers in the form of a fixed fee for each order placed via our online engagement solutions. For these Pay for Performance (“PFP”) arrangements, we recognize revenue net of the labor provider’s fee in accordance with ASC 605-45, “Principal Agent Considerations,” due primarily to the fact that the call center labor vendor is the primary obligor with respect to the labor services provided. Additionally, we perform as an agent without risk of loss for collection and do not bear inventory risk with respect to the outsourced labor services. Finally, we do not provide any part of the labor services, have no latitude in establishing prices for the labor services and generally do not have discretion in selecting the vendor.

 

The majority of our larger customers also pay a professional services fee related to implementation. We defer these implementation fees and associated direct costs and recognize them ratably over the expected term of the customer relationship upon commencement of the hosting services. We may also charge professional service fees related to additional training, business consulting and analysis in support of the LivePerson services.

 

We also sell certain of the LivePerson services directly via Internet download. These services are marketed as LivePerson Pro and LivePerson Contact Center for small and mid-sized businesses (“SMBs”), and are paid for almost exclusively by credit card. Credit card payments accelerate cash flow and reduce our collection risk, subject to the merchant bank’s right to hold back cash pending settlement of the transactions. Sales of LivePerson Pro and LivePerson Contact Center may occur with or without the assistance of an online sales representative, rather than through face-to-face or telephone contact that is typically required for traditional direct sales.

 

We recognize monthly service revenue based upon the fee charged for the LivePerson services, provided that there is persuasive evidence of an arrangement, no significant Company obligations remain, collection of the resulting receivable is probable and the amount of fees to be paid is fixed or determinable. Our service agreements typically have twelve month terms and are terminable or may terminate upon 30 to 90 days’ notice without penalty. When professional service fees add value to the customer on a standalone basis, we recognize professional service fees upon completion and customer acceptance in accordance with FASB Accounting Standards Update 2009-13. This guidance establishes a selling price hierarchy for determining the selling price of a deliverable, which is based on: (a) vendor-specific objective evidence; (b) third-party evidence; or (c) estimates.  If a professional services arrangement does not qualify for separate accounting, we recognize the fees, and the related labor costs, ratably over a period of 48 months, representing our current estimate of the term of the customer relationship.

 

 

For revenue generated from online transactions between Experts and Users, we recognize revenue net of Expert fees in accordance with ASC 605-45, “Principal Agent Considerations,” due primarily to the fact that the Expert is the primary obligor. Additionally, we perform as an agent without any risk of loss for collection, and are not involved in selecting the Expert or establishing the Expert’s fee. We collect a fee from the consumer and retain a portion of the fee, and then remit the balance to the Expert. Revenue from these transactions is recognized when there is persuasive evidence of an arrangement, no significant Company obligations remain, collection of the resulting receivable is probable and the amount of fees to be paid is fixed and determinable.

 

STOCK-BASED COMPENSATION

 

We follow ASC 718-10, “Stock Compensation,” which addresses the accounting for transactions in which an entity exchanges its equity instruments for goods or services, with a primary focus on transactions in which an entity obtains employee services in share-based payment transactions. ASC 718-10 requires measurement of the cost of employee services received in exchange for an award of equity instruments based on the grant-date fair value of the award (with limited exceptions). Incremental compensation costs arising from subsequent modifications of awards after the grant date must be recognized.

 

As of June 30, 2012, there was approximately $28.2 million of total unrecognized compensation cost related to nonvested share-based compensation arrangements. That cost is expected to be recognized over a weighted average period of approximately 2.1 years.

 

ACCOUNTS RECEIVABLE

 

Our customers are located primarily in the United States. We perform ongoing credit evaluations of our customers’ financial condition (except for customers who purchase the LivePerson services by credit card via Internet download) and have established an allowance for doubtful accounts based upon factors surrounding the credit risk of customers, historical trends and other information that we believe to be reasonable, although they may change in the future. If there is a deterioration of a customer’s credit worthiness or actual write-offs are higher than our historical experience, our estimates of recoverability for these receivables could be adversely affected. Although our large number of customers limits our concentration of credit risk, we do have several large customers. If we experience a significant write-off from one of these large customers, it could have a material adverse impact on our consolidated financial statements. No single customer accounted for or exceeded 10% of our total revenue in the three and six months ended June 30, 2012 and 2011. One customer accounted for approximately 18% of accounts receivable as of June 30, 2012 and December 31, 2011, respectively. During the six months ended June 30, 2012, we increased our allowance for doubtful accounts by $20,000 to approximately $708,000, principally due to an increase in the proportion of our receivables due from customers with greater credit risk. A larger proportion of receivables are due from larger corporate customers that typically have longer payment cycles.

 

 

GOODWILL

 

In accordance with ASC 350, Goodwill and Other Intangible Assets, goodwill and indefinite-lived intangible assets are not amortized, but reviewed for impairment upon the occurrence of events or changes in circumstances that would reduce the fair value below its carrying amount. Goodwill is required to be tested for impairment at least annually. In September 2011, the FASB issued ASU No. 2011-08, Intangibles — Goodwill and Other (Topic 350). ASU 2011-08 permits an entity to first assess qualitative factors to determine whether it is “more likely than not” that the fair value of a reporting unit is less than its carrying amount as a basis for determining whether it is necessary to perform the two-step goodwill impairment test described in Topic 350. The more-likely-than-not threshold is defined as having a likelihood of more than 50%. If it is determined that the fair value of a reporting unit is more likely than not to be less than its carrying value (including unrecognized intangible assets) than it is necessary to perform the second step of the goodwill impairment test. The second step of the goodwill impairment test is judgmental in nature and often involves the use of significant estimates and assumptions. Similarly, estimates and assumptions are used in determining the fair value of other intangible assets. These estimates and assumptions could have a significant impact on whether or not an impairment charge is recognized and also the magnitude of any such charge. We perform internal valuation analyses and consider other market information that is publicly available. Estimates of fair value are primarily determined using discounted cash flows and market comparisons. These approaches use significant estimates and assumptions including projected future cash flows (including timing), discount rates reflecting the risk inherent in future cash flows, perpetual growth rates, determination of appropriate market comparables and the determination of whether a premium or discount should be applied to comparables.

 

In the third quarter of 2011, we adopted ASU 2011-08 and determined that it is not more-likely that the fair value of the reporting units are less than their carrying amounts. Accordingly, we did not perform the two-step goodwill impairment test.

 

IMPAIRMENT OF LONG-LIVED ASSETS

 

In accordance with ASC 360-10, “Accounting for the Impairment or Disposal of Long-lived Assets,” long-lived assets, such as property, plant and equipment and purchased intangibles subject to amortization are reviewed for impairment whenever events or changes in circumstances indicate that the carrying value of an asset may not be recoverable. Recoverability of assets to be held and used is measured by a comparison of the carrying value of an asset to estimated undiscounted future cash flows expected to be generated by the asset. If the carrying value of an asset exceeds its estimated future cash flows, an impairment charge is recognized in the amount by which the carrying value of the asset exceeds the fair value of the asset. Assets to be disposed of would be separately presented in the balance sheet and reported at the lower of the carrying value or the fair value less costs to sell, and are no longer depreciated. The assets and liabilities of a disposed group classified as held for sale would be presented separately in the appropriate asset and liability sections of the balance sheet.

 

USE OF ESTIMATES

 

The preparation of our consolidated financial statements in accordance with accounting principles generally accepted in the U.S. requires our management to make a number of estimates and assumptions relating to the reported amounts of assets and liabilities, the disclosure of contingent assets and liabilities at the date of the consolidated financial statements, and the reported amounts of revenue and expenses during the period. Significant items subject to such estimates and assumptions include the carrying amount of goodwill, intangibles, stock-based compensation, valuation allowances for deferred income tax assets, accounts receivable, the expected term of a customer relationship, accruals and other factors. Actual results could differ from those estimates.

 

RECENTLY ISSUED ACCOUNTING STANDARDS

 

In December 2011, the FASB issued ASU No. 2011-11, Balance Sheet (Topic 210): Disclosures about Offsetting Assets and Liabilities. This ASU is intended to provide enhanced disclosures that will enable users of its financial statements to evaluate the effect or potential effect of netting arrangements on an entity’s financial position. This includes the effect or potential effect of rights of setoff associated with an entity’s recognized assets and recognized liabilities within the scope of this update. The amendments require enhanced disclosures by requiring improved information about financial instruments and derivative instruments that are either (1) offset in accordance with either Section 210-20-45 or Section 815-10-45 or (2) subject to an enforceable master netting arrangement or similar agreement, irrespective of whether they are offset in accordance with either Section 210-20-45 or Section 815-10-45. An entity is required to apply this amendment for annual reporting periods beginning on or after January 1, 2013, and interim periods within those annual periods. An entity should provide the disclosures required by those amendments retrospectively for all comparative periods presented. ASU No. 2011-11 relates specifically to disclosures, it will not have an impact on our consolidated financial statements.

 

In May 2011, the FASB issued ASU No. 2011-04, Fair Value Measurement (Topic 820): Amendments to Achieve Common Fair Value Measurement and Disclosure Requirements in U.S. GAAP and IFRSs. This ASU represents the converged guidance of the FASB and the IASB (the Boards) on fair value measurement. The collective efforts of the Boards and their staffs, reflected in ASU 2011-04, have resulted in common requirements for measuring fair value and for disclosing information about fair value measurements, including a consistent meaning of the term “fair value.” The Boards have concluded the common requirements will result in greater comparability of fair value measurements presented and disclosed in financial statements prepared in accordance with U.S. GAAP and IFRSs. The amendments to the FASB Accounting Standards Codification (Codification) in this ASU are to be applied prospectively. For public entities, the amendments are effective during interim and annual periods beginning after December 15, 2011. Early application by public entities is not permitted. This update did not have an impact on our consolidated financial statements.

 

 

REVENUE

 

The majority of our revenue is generated from monthly service revenues and related professional services from the sale of the LivePerson services. We charge a monthly fee, which varies by service and customer usage. The majority of our larger customers also pay a professional services fee related to implementation. A large proportion of our revenue from new customers comes from large corporations. These companies typically have more significant implementation requirements and more stringent data security standards. Such customers also have more sophisticated data analysis and performance reporting requirements, and are likely to engage our professional services organization to provide such analysis and reporting on a recurring basis.

 

Revenue from our Business segment accounted for 90% of total revenue for the three and six months ended June 30, 2012, respectively. Revenue attributable to our monthly hosted Business services accounted for 93% and 94% of total Business revenue for the three and six months ended June 30, 2012, respectively. Revenue from our Business segment accounted for 88% of total revenue for the three and six months ended June 30, 2011, respectively. Revenue attributable to our monthly hosted Business services accounted for 95% of total Business revenue for the three and six months ended June 30, 2011, respectively. Our service agreements typically have twelve month terms and, in some cases, are terminable or may terminate upon 30 to 90 days’ notice without penalty. Given the time required to schedule training for our customers’ operators and our customers’ resource constraints, we have historically experienced a lag between signing a customer contract and recognizing revenue from that customer. This lag has recently ranged from 30 to 90 days.

 

Revenue from our Consumer segment is generated from online transactions between Experts and Users and is recognized net of Expert fees and accounted for approximately 10% of total revenue in each of the three and six months ended June 30, 2012. Revenue generated from online transactions between Experts and Users accounted for approximately 12% of total revenue in each of the three and six months ended June 30, 2011.

 

We also have entered into contractual arrangements that complement our direct sales force and online sales efforts. These are primarily with call center service companies, pursuant to which LivePerson is paid a commission based on revenue generated by these service companies from our referrals. To date, revenue from such commissions has not been material.

 

 

OPERATING EXPENSES

 

Our cost of revenue consists of:

 

·

compensation costs relating to employees who provide customer support and implementation services to our customers;

 

·

compensation costs relating to our network support staff;

 

·

depreciation of certain hardware and software;

 

·

allocated occupancy costs and related overhead;

 

·

the cost of supporting our infrastructure, including expenses related to server leases, infrastructure support costs and Internet connectivity;

 

·

the credit card fees and related payment processing costs associated with the consumer and SMB services; and

 

·

amortization of certain intangibles.

 

Our product development expenses consist primarily of compensation and related expenses for product development personnel, allocated occupancy costs and related overhead, outsourced labor and expenses for testing new versions of our software. Product development expenses are charged to operations as incurred.

 

Our sales and marketing expenses consist of compensation and related expenses for sales personnel and marketing personnel, online marketing, allocated occupancy costs and related overhead, advertising, sales commissions, public relations, promotional materials, travel expenses and trade show exhibit expenses.

 

Our general and administrative expenses consist primarily of compensation and related expenses for executive, accounting, legal and human resources personnel, allocated occupancy costs and related overhead, professional fees, provision for doubtful accounts and other general corporate expenses.

 

During the six months ended June 30, 2012, we increased our allowance for doubtful accounts by $20,000 to approximately $708,000, principally due to an increase in the proportion of receivables due from customers with greater credit risk. A larger proportion of receivables are due from larger corporate customers that typically have longer payment cycles. During 2011, we increased our allowance for doubtful accounts by $290,000 to approximately $851,000, principally due to an increase in accounts receivable as a result of increased sales and, to a lesser extent, to an increase in the proportion of receivables due from customers with greater credit risk. We wrote off approximately $163,000 of previously reserved accounts, leaving a net allowance for doubtful accounts of approximately $688,000. A larger proportion of receivables are due from larger corporate customers that typically have longer payment cycles. We base our allowance for doubtful accounts on specifically identified credit risks of customers, historical trends and other information that we believe to be reasonable. We adjust our allowance for doubtful accounts when accounts previously reserved have been collected.

 

NON-CASH COMPENSATION EXPENSE

 

The net non-cash compensation amounts for the three and six months ended June 30, 2012 and 2011 consist of:

 

		Three Months Ended June 30,								Six Months Ended June 30,
		2012				2011				2012				2011
Stock-based compensation expense related to ASC 718-10		$	2,638			$	1,679			$	4,794			$	3,214
Total		$	2,638			$	1,679			$	4,794			$	3,214

 

RESULTS OF OPERATIONS

 

The Company is organized into two operating segments: Business and Consumer. The Business segment facilitates real-time online interactions — chat, voice, and content delivery, across multiple channels and screens for global corporations of all sizes. The Consumer segment facilitates online transactions between Experts and Users seeking information and knowledge for a fee via real-time chat.

 

  

Comparison of Three and Six Months Ended June 30, 2012 and 2011

 

Revenue – Business. Revenue increased by 23% to $34.5 million and $67.5 million in the three and six months ended June 30, 2012, respectively, from $28.1 million and $54.8 million in the comparable periods in 2011. This increase is primarily attributable to revenue from existing customers who increased their use of services in the amount of approximately $3.3 million and $6.5 million, respectively, net of cancellations, revenue from new customers in the amount of approximately $2.0 million and $4.5 million, respectively, and to a lesser extent, to professional services revenue of approximately $1.0 million and $1.5 million, respectively. Our revenue growth has typically been driven by a mix of revenue from new customers as well as expansion of existing customers.

 

Revenue – Consumer. Revenue increased by 6% to $4.0 million and $7.8 million in the three and six months ended June 30, 2012, respectively, from $3.7 million and $7.4 million in the comparable periods in 2011. This increase is primarily attributable to an increase in gross revenue of approximately $417,000 and $824,000, respectively, as a result of increased chat minutes partially offset by a decrease in the price charged per minute.

 

Cost of Revenue – Business. Cost of revenue consists of compensation costs relating to employees who provide customer service to our customers, compensation costs relating to our network support staff, the cost of supporting our server and network infrastructure and allocated occupancy costs and related overhead. Cost of revenue increased by 3% to $7.9 million and $15.3 million in the three and six months ended June 30, 2012, respectively, from $7.7 million and $14.9 million in the comparable periods in 2011. The increase is primarily attributable to an increase in total compensation and related costs for additional and existing customer service and network operations personnel in the amount of approximately $334,000 and $705,000, respectively, partially offset by a decrease for primary and backup server facilities and allocated overhead related to costs of supporting our server and network infrastructure of approximately $105,000 and $162,000, respectively and a decrease in credit card fees and related payment processing costs of approximately $63,000 and $113,000, respectively. Gross margin increased by 4% to 77% in the three and six month periods ended June 30, 2012 from 73% in the comparable periods in 2011. Our gross margin has improved recently, in part, from a foreign currency benefit as the U.S dollar has appreciated against the NIS. If the U.S. dollar weakens against the NIS, our gross margin could be negatively impacted. In addition, we expect our gross margin to decrease as the result of amortization of technology intangibles related to our acquisitions completed in the three month period ended June 30, 2012. 

 

Cost of Revenue – Consumer. Cost of revenue consists of compensation costs relating to employees who provide customer service to Experts and Users, compensation costs relating to our network support staff, the cost of supporting our server and network infrastructure, credit card and transaction processing fees and related costs, and allocated occupancy costs and related overhead. Cost of revenue decreased by 45% and 42% to $553,000 and $1.1 million in the three and six months ended June 30, 2012 from $997,000 and $1.9 million in the comparable periods in 2011. This decrease is primarily attributable to the fact that the intangible assets related to the Kasamba acquisition were fully amortized as of September 30, 2011.

 

Product Development. Our product development expenses consist primarily of compensation and related expenses for product development personnel as well as allocated occupancy costs and related overhead and outsourced labor and expenses for testing new versions of our software. Product development costs increased by 44% and 48% to $7.2 million and $13.9 million in the three and six months ended June 30, 2012, respectively, from $5.0 and $9.4 million in the comparable periods in 2011. This increase is primarily attributable to an increase in compensation and related costs for additional and existing product development personnel as a result of our increased efforts to expand our product offerings of approximately $1.9 million and $3.8 million, respectively and to a lesser extent an increase in outsourced labor expense of approximately $203,000 and $568,000, respectively as a result of testing new versions of our software. We are increasing our investment in new product development efforts to expand future product offerings. We are also investing in partner programs that enable third-parties to develop value-added software applications for our existing and future customers.

 

 

Sales and Marketing – Business. Our sales and marketing expenses consist of compensation and related expenses for sales and marketing personnel, as well as advertising, public relations, trade show exhibit expenses and allocated occupancy costs and related overhead. Sales and marketing expenses increased by 49% and 39% to $11.6 million and $21.1 million in the three and six months ended June 30, 2012, respectively, from $7.8 million and $15.1 million in the comparable periods in 2011. This increase is primarily attributable to an increase in compensation and related costs for additional and existing sales and marketing personnel of approximately $2.5 million and $4.4 million, respectively, and an increase in advertising and public relations expenses in the amount of approximately $1.2 million and $1.5 million, respectively. This increase relates to our continued efforts to enhance our brand recognition and increase sales lead activity.

 

Sales and Marketing – Consumer. Our sales and marketing expenses consist of compensation and related expenses for marketing personnel, as well as online promotion, public relations and allocated occupancy costs and related overhead. Sales and marketing expenses decreased by 11% to $1.4 million in the three months ended June 30, 2012, from $1.6 million in the comparable period in 2011. This decrease is primarily attributable to a decrease in advertising and promotional expenses of approximately $114,000 driven by improved efficiency in search engine optimization. Sales and marketing expenses decreased by 4% to $3.0 million in the six months ended June 30, 2012, from $3.1 million in the comparable period in 2011. This decrease is primarily attributable to a decrease in compensation and related costs and allocated overhead for marketing personnel of approximately $173,000.

 

General and Administrative. Our general and administrative expenses consist primarily of compensation and related expenses for executive, accounting, legal, human resources and administrative personnel. General and administrative expenses increased by 73% to $9.3 million in the three months ended June 30, 2012, from $5.4 million in the comparable periods in 2011. This increase is primarily attributable to increases in accounting and legal costs related to acquisitions and litigation in the amount of approximately $2.5 million, increases in other professional fees in the amount of approximately $500,000 and increases in costs related to additional and existing personnel in the amount of approximately $883,000. General and administrative expenses increased by 65% to $15.5 million in the six months ended June 30, 2012, from $9.3 million in the comparable periods in 2011. This increase is primarily attributable to increases in accounting and legal costs related to acquisitions and litigation in the amount of approximately $2.9 million, increases in other professional fees in the amount of approximately $600,000 and increases in costs related to additional and existing personnel in the amount of approximately $2.4 million.

  

Amortization of Intangibles. Amortization expense was $11,000 in the three months ended June 30, 2012 and relates primarily to the purchases of patents in August 2009. Amortization expense was $87,000 in the six months ended June 30, 2012 and relates primarily to acquisition costs recorded as a result of our acquisition of NuConomy in April 2010 and to the purchases of patents in August 2009. Amortization expense was $11,000 and $22,000 in the three and six months ended June 30, 2011, respectively, and relates to the purchases of patents in August 2009. The increase is attributable to the acquisition costs recorded as a result of our acquisition of NuConomy in April 2010. Additional amortization expense in the amount of $66,000 and $306,000 are included in cost of revenue for the six months ended June 30, 2012 and the comparable period in 2011, respectively. Amortization expense is expected to be approximately $300,000 in the year ended December 31, 2012.

 

Other (Expense) Income. Financial expense was $254,000 in the three months ended June 30, 2012. Financial income was $77,000 in the six months ended June 30, 2012. Financial income was $208,000 and $363,000 in the three and six months ended June 30, 2011, respectively. Financial income and expense is the result of currency rate fluctuations associated with the exchange rate movement of the U.S. dollar against the New Israeli Shekel. Interest income was $21,000 and $36,000 in the three and six months ended June 30, 2012, respectively, compared to $16,000 and $30,000 in the comparable periods in 2011, respectively, and consists of interest earned on cash and cash equivalents.

 

Provision for Income Taxes. Our effective tax rate was 27% and 40% for the three and six months ended June 30, 2012, respectively resulting in a provision for income taxes of $51,000 and $2.2 million in the three and six months ended June 30, 2012, respectively. Our effective tax rate was 39% for the three and six months ended June 30, 2011, respectively, resulting in a provision for income taxes of $1.4 million and $3.4 million in the comparable periods in 2011, respectively.

 

Net Income. We had net income of $140,000 and $3.3 million in the three and six months ended June 30, 2012, as compared to net income of $2.2 million and $5.4 million for the comparable periods in 2011, respectively. Revenue increased by $6.7 million and $13.0 million, respectively; operating expenses increased by $9.6 million and $16.2 million, respectively; other income decreased $457,000 and $280,000, respectively;, and provision for income taxes decreased by approximately $1.4 million and $1.3 million, contributing to a net decrease in net income of approximately $2.1 million and $2.2 million in the three and six months ended June 30, 2012, respectively.

 

 

LIQUIDITY AND CAPITAL RESOURCES

 

As of June 30, 2012, we had approximately $100.6 million in cash and cash equivalents, an increase of approximately $7.9 million from December 31, 2011. This increase is primarily attributable to net cash provided by operating activities and, to a lesser extent, proceeds from the issuance of common stock in connection with the exercise of stock options by employees and the excess tax benefit from the exercise of employee stock options, partially offset by the acquisitions of Look.io and Amadesa and the purchases of fixed assets related to the build-out of our co-location facility. We invest our cash in short-term money market funds.

 

Net cash provided by operating activities was $14.3 million for the six months ended June 30, 2012 and consisted primarily of net income, non-cash expenses related to ASC 718-10, amortization of intangibles and depreciation, increases in accounts payable, accrued expenses and deferred revenue and decrease in account receivable partially offset by an increase in prepaid expenses. Net cash provided by operating activities was $11.8 million for the six months ended June 30, 2011 and consisted primarily of net income, non-cash expenses related to ASC 718-10, amortization of intangibles and depreciation, increases in accounts payable and deferred revenue and decreases in prepaid expenses and other current assets partially offset by an increase in accounts receivable and a decrease in accrued expenses.

 

Net cash used in investing activities was $14.7 million in the six months ended June 30, 2012, and was due primarily to our purchase of technology assets from Amadesa, our acquisition of Look.io, and the purchase of fixed assets for our co-location facilities. Net cash used in investing activities was $4.4 million in the six months ended June 30, 2011, and was due primarily to the build-out of new office space in New York and Israel, and to a lesser extent, to purchases of fixed assets for our co-location facilities.

 

Net cash provided by financing activities was $7.7 million for the six months ended June 30, 2012 and consisted primarily of the proceeds from the issuance of common stock in connection with the exercise of stock options by employees and the excess tax benefit from the exercise of employee stock options. Net cash provided by financing activities was $5.6 million for the six months ended June 30, 2011 and consisted primarily of the proceeds from the issuance of common stock in connection with the exercise of stock options by employees and the excess tax benefit from the exercise of employee stock options.

 

We have incurred significant expenses to develop our technology and services, to hire employees in our customer service, sales, marketing and administration departments, and for the amortization of intangible assets, as well as non-cash compensation costs. Historically, we incurred significant quarterly net losses from inception through June 30, 2003, significant negative cash flows from operations in our quarterly periods from inception through December 31, 2002. As of June 30, 2012, we had an accumulated deficit of approximately $84.9 million. These losses have been funded primarily through the issuance of common stock in our initial public offering and, prior to the initial public offering, the issuance of convertible preferred stock.

 

We anticipate that our current cash and cash equivalents will be sufficient to satisfy our working capital and capital requirements for at least the next 12 months. However, we cannot assure you that we will not require additional funds prior to such time, and we would then seek to sell additional equity or debt securities through public financings, or seek alternative sources of financing. We cannot assure you that additional funding will be available on favorable terms, when needed, if at all. If we are unable to obtain any necessary additional financing, we may be required to further reduce the scope of our planned sales and marketing and product development efforts, which could materially adversely affect our business, financial condition and operating results. In addition, we may require additional funds in order to fund more rapid expansion, to develop new or enhanced services or products or to invest in or acquire complementary businesses, technologies, services or products.

 

CONTRACTUAL OBLIGATIONS AND COMMITMENTS

 

We do not have any special purposes entities, and other than operating leases, which are described below, we do not engage in off-balance sheet financing arrangements.

 

 

We lease facilities and certain equipment under agreements accounted for as operating leases. These leases generally require us to pay all executory costs such as maintenance and insurance. Rental expense for operating leases for the three and six months ended June 30, 2012 was approximately $1.7 million and $3.3 million, respectively, and approximately $1.8 million and $3.5 million for the three and six months ended June 30, 2011, respectively.

 

As of June 30, 2012, our principal commitments were approximately $23.2 million under various operating leases, of which approximately $4.2 million is due in 2012. We currently expect that our principal commitments for the year ending December 31, 2012 will not exceed $8.0 million in the aggregate.

 

Our contractual obligations at June 30, 2012 are summarized as follows:

 

		Payments due by period
		(in thousands)
		Total				Less than 1 year				1-3 years				3-5 years				More than 5 years
Contractual Obligations
Operating leases		$	23,242			$	4,190			$	13,048			$	4,247			$	1,757
Total		$	23,242			$	4,190			$	13,048			$	4,247			$	1,757

 

ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK

 

Currency Rate Fluctuations

 

As a result of the expanded scope of our Israeli operations, our currency rate fluctuation risk associated with the exchange rate movement of the U.S. dollar against the New Israeli Shekel (“NIS”) has increased. During the three and six months ended June 30, 2012, the U.S. dollar appreciated approximately 6% and 3% as compared to the NIS. During the six month period ended June 30, 2012, expenses generated by our Israeli operations totaled approximately $20.1 million. We do not currently hedge our foreign currency risk exposure. We actively monitor the movement of the U.S. dollar against the NIS and U.K. pound and have considered the use of financial instruments, including but not limited to derivative financial instruments, which could mitigate such risk. If we determine that our risk of exposure materially exceeds the potential cost of derivative financial instruments, we may in the future enter in to these types of investments. The functional currency of our wholly-owned Israeli subsidiaries, LivePerson Ltd. (formerly HumanClick Ltd.) and Kasamba Ltd., is the U.S. dollar and the functional currency of our operations in the United Kingdom is the U.K. pound.

 

Collection Risk

 

Our accounts receivable are subject, in the normal course of business, to collection risks. We regularly assess these risks and have established policies and business practices to protect against the adverse effects of collection risks. During the six months ended June 30, 2012, we increased our allowance for doubtful accounts $20,000 to approximately $708,000, principally due to an increase in the proportion of our receivables due from customers with greater credit risk. A larger proportion of receivables are due from larger corporate customers that typically have longer payment cycles. During the six months ended June 30, 2011, we increased our allowance for doubtful accounts $120,000 to approximately $681,000, principally due to an increase in accounts receivable as a result of increased sales and, to a lesser extent to an increase in the proportion of our receivables due from customers with greater credit risk. A larger proportion of receivables are due from larger corporate customers that typically have longer payment cycles.

 

Interest Rate Risk

 

Our investments consist of cash and cash equivalents. Therefore, changes in the market’s interest rates do not affect in any material respect the value of the investments as recorded by us.

 

 

ITEM 4. CONTROLS AND PROCEDURES

 

Evaluation of Disclosure Controls and Procedures

 

Our management, including the Chief Executive Officer and Chief Financial Officer, evaluated the effectiveness of our “disclosure controls and procedures,” as that term is defined in Rule 13a-15(e) promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), as of June 30, 2012. Based on that evaluation, the Chief Executive Officer and Chief Financial Officer concluded that our disclosure controls and procedures were effective as of June 30, 2012 to ensure that the information we are required to disclose in the reports that we file or submit under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the Securities and Exchange Commission’s rules and forms, and to ensure that such information is accumulated and communicated to our management, including the Chief Executive Officer and Chief Financial Officer, as appropriate to allow timely decisions regarding required disclosure.

 

Changes in Internal Control Over Financial Reporting

 

There were no changes in our internal control over financial reporting during the quarter ended June 30, 2012 identified in connection with the evaluation thereof by our management, including the Chief Executive Officer and Chief Financial Officer, that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.

 

Limitations of the Effectiveness of Internal Control

 

A control system, no matter how well conceived and operated, can only provide reasonable, not absolute, assurance that the objectives of the internal control system are met. Because of the inherent limitations of any internal control system, no evaluation of controls can provide absolute assurance that all control issues, if any, have been detected.

 

PART II.  OTHER INFORMATION

 

ITEM 1. LEGAL PROCEEDINGS

 

On July 31, 2007, we were served with a complaint filed in the United States District Court for the Southern District of New York by the Shareholders’ Representative of Proficient Systems, Inc. In connection with the July 2006 acquisition of Proficient, we were contingently required to issue up to 2,050,000 shares of common stock based on the terms of an earn-out provision in the merger agreement. In accordance with the terms of the earn-out provision, we issued 1,127,985 shares of LivePerson common stock in the second quarter of 2007 to the former shareholders of Proficient. The amended complaint filed by the Shareholders’ Representative, or Plaintiff, on May 12, 2009 alleges that we breached the merger agreement by failing to properly account for net annualized revenue, and demands payment of damages on the grounds that substantially all of the remaining contingently issuable earn-out shares should have been paid. The case proceeded to trial, which ended on November 4, 2010. On June 27, 2012, the District Court issued its decision, ruling substantially in favor of us with the exception of certain immaterial claims by Plaintiff that were upheld and for which the Court ordered the payment of a nominal amount in damages by us to the former shareholders of Proficient. This payment will not have a material impact on our ongoing operations. This amount is included in Goodwill on our June 30, 2012 balance sheet.

 

On June 15, 2011, we filed suit against Lodsys, LLC, in the United States District Court for the Northern District of Illinois, seeking a declaratory judgment that our products do not infringe four patents which Lodsys had previously asserted were infringed by our customers, as well as a declaratory judgment that those four patents are invalid; that case was transferred to the Eastern District of Wisconsin on October 25, 2011, based on a joint motion filed by the parties. On July 5, 2011, Lodsys countersued us and other plaintiffs in similarly-situated declaratory judgment actions, including DriveTime Automotive Group, Inc., ESET, LLC, ForeSee Results, LLC, OpinionLab, Inc., and The New York Times Company, in the United States District Court for the Eastern District of Texas. In the Texas case, Lodsys alleged that we infringe two of the patents involved in the co-pending declaratory judgment case, and sought damages for past infringement, and an injunction against future infringement. In July 2012, the parties reached a mutual, confidential agreement resolving all claims and counterclaims against each party. The terms of the agreement will not have a material impact on our ongoing operations. In August 2012, the parties filed notices of dismissal with prejudice of all pending claims asserted in both litigations, which the parties expect will be endorsed by the courts in August 2012, thereby dismissing with prejudice all claims in these litigations involving us.

 

On February 7, 2012, we filed suit against Pragmatus Telecom LLC in the District of Delaware, seeking a declaratory judgment that our products do not infringe three patents owned by Pragmatus which Pragmatus had previously asserted were infringed by certain of our customers. On March 13, 2012, we amended our complaint to add a request for a declaratory judgment that those three patents are invalid. On April 6, 2012, Pragmatus answered the Amended Complaint, and asserted counterclaims against us asserting infringement of the same three patents. Pursuant to a June 1, 2012 Scheduling Order entered by the Court, trial in this matter will begin on or after September 8, 2014. Although we currently do not expect that the outcome of this matter will have a material adverse effect on our financial condition or results of operations, litigation is inherently unpredictable. Therefore, judgments could be rendered or settlements entered, that could adversely affect our operating results or cash flows in a particular period.

 

We routinely assess all of our litigation and threatened litigation as to the probability of ultimately incurring a liability, and record our best estimate of the ultimate loss in situations where we assess the likelihood of loss as probable.

 

From time to time, we are involved in other legal proceedings arising in the ordinary course of its business, which may arise from, among other things, direct legal claims brought by or against us, or from claims brought against our customers for which we have a contractual indemnification obligation.

 

 

ITEM 1A. RISK FACTORS

 

Risks that could have a material and adverse impact on our business, results of operations and financial condition include the following: potential fluctuations in our quarterly and annual results; potential fluctuations in litigation, transaction-related and other costs; costs associated with our international expansion; the adverse effect that the economic downturn may have on our business and results of operations; competition in the real-time sales, marketing, customer service and online engagement solutions market; our ability to retain existing customers and attract new customers; risks related to new regulatory or other legal requirements that could materially impact our business; impairments to goodwill that result in significant charges to earnings; volatility of the value of certain currencies in relation to the U.S. dollar, particularly the New Israeli Shekel, U.K. pound and Euro; risks related to our international operations, particularly our operations in Israel, and the civil and political unrest in that region; responding to rapid technological change and changing customer preferences; our ability to retain key personnel and attract new personnel; risks related to the ability to successfully integrate past or potential future acquisitions; technology systems beyond our control and technology-related defects that could disrupt the LivePerson services; privacy concerns relating to the Internet that could result in new legislation or negative public perception; risks related to the regulation or possible misappropriation of personal information belonging to our customers’ Internet users; legal liability and/or negative publicity for the services provided to consumers via our technology platforms; risks related to protecting our intellectual property rights or potential infringement of the intellectual property rights of third parties; and risks related to our common stock being traded on more than one securities exchange, which may result in additional variations in the trading price of our common stock. This list is intended to identify only certain of the principal factors that could have a material and adverse impact on our business, results of operations and financial condition. A more detailed description of each of these and other important risk factors can be found under the caption “Risk Factors” in our most recent Annual Report on Form 10-K filed on March 13, 2012.

 

There are no material changes to the risk factors described in the Form 10-K.

 

ITEM 2. UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS

 

In connection with the acquisition of Look.io completed in the second quarter ended June 30, 2012, the Company issued an aggregate of 139,939 shares of common stock to the equity holders of a target company as a portion of the consideration for all of the outstanding equity of the target company. A portion of the shares were placed in escrow as partial security for indemnification obligations of such holders and a portion of the shares are subject to continuing service obligations to us by certain equity holders of the target company.  The issuance of the shares was made in reliance on the private offering exemption of Section 4(2) of the Securities Act and/or the private offering safe harbor provision of Rule 506 of Regulation D promulgated thereunder based on the following factors:  (i) the number of offerees, (ii) the absence of general solicitation, (iii) representations obtained from the equity holders of the target company relative to their accreditation and/or sophistication (alone or when taken together with their purchaser representative, as applicable) and/or their relationship to the company, (iv) the provision of appropriate disclosure, and (v) the placement of restrictive legends on the certificates reflecting the securities coupled with investment representations obtained from the equity holders of the target company being issued common stock of the Company.]

 

On May 14, 2010, our Board of Directors approved a stock repurchase program through June 30, 2012. Under the stock repurchase program, we are authorized to repurchase shares of our common stock, in the open market or privately negotiated transactions, at times and prices considered appropriate by our Board of Directors depending upon prevailing market conditions and other corporate considerations, up to an aggregate purchase price of $10.0 million. As of June 30, 2012, approximately $6.4 million remained available for purchases under the program.

 

There were no repurchases of our common stock under our stock repurchase program during the three months ended June 30, 2012.

 

ITEM 3.

DEFAULTS UPON SENIOR SECURITIES

None.

 

ITEM 4.

MINE SAFETY DISCLOSURES

None.

 

ITME 5.

OTHER INFORMATION

None.

 

 

ITEM 6.  EXHIBITS

 

The following exhibits are filed as part of this Quarterly Report on Form 10-Q:

 

31.1

Certification by Chief Executive Officer pursuant to Exchange Act Rule 13a-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

 

31.2

Certification by Chief Financial Officer pursuant to Exchange Act Rule 13a-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

 

32.1*

Certification by Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

 

32.2*

Certification by Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

 

	101.INS**	XBRL Instance Document
	101.SCH**	XBRL Taxonomy Extension Schema Document
	101.CAL**	XBRL Taxonomy Extension Calculation Linkbase Document
	101.DEF**	XBRL Taxonomy Extension Definition Linkbase Document
	101.LAB**	XBRL Taxonomy Extension Label Linkbase Document
	101.PRE**	XBRL Taxonomy Extension Presentation Linkbase Document

 

 *              These certifications are not deemed filed with the Securities and Exchange Commission and are not to be incorporated by reference in any filing we make under the Securities Act of 1933 or the Securities Exchange Act of 1934, irrespective of any general incorporation language in any filings.

**              In accordance with Rule 406T of Regulation S-T, these XBRL (eXtensible Business Reporting Language) documents are furnished and not filed or a part of a registration statement or prospectus for purposes of Sections 11 or 12 of the Securities Act of 1933 or Section 18 of the Securities Exchange Act of 1934 and otherwise are not subject to liability under these sections.

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

 

	LIVEPERSON, INC. (Registrant)
Date: August 8, 2012	By:	/s/ ROBERT P. LOCASCIO
	Name:	Robert P. LoCascio
	Title:	Chief Executive Officer (principal executive officer)
Date: August 8, 2012	By:	/s/ DANIEL R. MURPHY
	Name:	Daniel R. Murphy
	Title:	Chief Financial Officer (principal financial and accounting officer)

 

 

EXHIBIT INDEX

 

EXHIBIT
31.1	Certification by Chief Executive Officer pursuant to Exchange Act Rule 13a-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
31.2	Certification by Chief Financial Officer pursuant to Exchange Act Rule 13a-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
32.1*	Certification by Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
32.2*	Certification by Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

  

101.INS**		XBRL Instance Document
101.SCH**		XBRL Taxonomy Extension Schema Document
101.CAL**		XBRL Taxonomy Extension Calculation Linkbase Document
101.DEF**		XBRL Taxonomy Extension Definition Linkbase Document
101.LAB**		XBRL Taxonomy Extension Label Linkbase Document
101.PRE**		XBRL Taxonomy Extension Presentation Linkbase Document

 

 *               These certifications are not deemed filed with the Securities and Exchange Commission and are not to be incorporated by reference in any filing we make under the Securities Act of 1933 or the Securities Exchange Act of 1934, irrespective of any general incorporation language in any filings.

**              In accordance with Rule 406T of Regulation S-T, these XBRL (eXtensible Business Reporting Language) documents are furnished and not filed or a part of a registration statement or prospectus for purposes of Sections 11 or 12 of the Securities Act of 1933 or Section 18 of the Securities Exchange Act of 1934 and otherwise are not subject to liability under these sections.