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LIVEPERSON INC - Quarter Report: 2009 September (Form 10-Q)

Unassociated Document

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 SEPTEMBER 30, 2009
 
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: 0-30141
 
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.)
     
462 SEVENTH AVENUE
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 November 5, 2009, there were 48,511,550 shares of the issuer’s common stock outstanding.

 

 

LIVEPERSON, INC.
SEPTEMBER 30, 2009
FORM 10-Q
INDEX
 
   
PAGE
PART I.
FINANCIAL INFORMATION
4
     
ITEM 1.
FINANCIAL STATEMENTS
4
     
 
CONDENSED CONSOLIDATED BALANCE SHEETS AS OF SEPTEMBER 30, 2009 (UNAUDITED) AND DECEMBER 31, 2008
4
     
 
UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF INCOME FOR THE THREE AND NINE MONTHS ENDED SEPTEMBER 30, 2009 AND 2008
5
     
 
UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS FOR THE NINE MONTHS ENDED SEPTEMBER 30, 2009 AND 2008
6
     
 
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
7
     
ITEM 2.
MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
19
     
ITEM 3.
QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
30
     
ITEM 4.
CONTROLS AND PROCEDURES
31
     
PART II.
OTHER INFORMATION
32
     
ITEM 1.
LEGAL PROCEEDINGS
32
     
ITEM 1A.
RISK FACTORS
32
     
ITEM 2.
UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS
33
     
ITEM 5.
OTHER INFORMATION
33
     
ITEM 6.
EXHIBITS
34
 
 
2

 

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.”

 
3

 

PART I. FINANCIAL INFORMATION
 
ITEM 1. FINANCIAL STATEMENTS
 
LIVEPERSON, INC.
 
CONDENSED CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
 
   
September 30, 2009
   
December 31, 2008
 
   
(Unaudited)
   
(Note 1(B))
 
ASSETS
           
Current assets:
           
Cash and cash equivalents
  $ 36,486     $ 25,500  
Accounts receivable, net of allowance for doubtful accounts of $370 and $340  as of September 30, 2009 and December 31, 2008, respectively
    10,442       7,574  
Prepaid expenses and other current assets
    2,545       1,706  
Deferred tax assets, net
    812       1,772  
Total current assets
    50,285       36,552  
Property and equipment, net
    8,986       7,473  
Intangibles, net
    3,211       4,319  
Goodwill
    23,906       24,388  
Deferred tax assets, net
    7,654       7,330  
Deferred implementation costs
    134       147  
Security deposits
    321       349  
Other assets
    1,617       1,390  
Total assets
  $ 96,114     $ 81,948  
                 
LIABILITIES AND STOCKHOLDERS’ EQUITY
               
Current liabilities:
               
Accounts payable
  $ 4,739     $ 3,555  
Accrued expenses
    10,103       9,088  
Deferred revenue
    4,670       3,985  
Total current liabilities
    19,512       16,628  
Deferred revenue, net of current
    449       347  
Other liabilities
    1,617       1,390  
Total liabilities
    21,578       18,365  
                 
Commitments and contingencies
               
Stockholders’ equity:
               
Preferred stock, $.001 par value per share; 5,000,000 shares authorized, 0 shares issued and outstanding at September 30, 2009 and December 31, 2008
           
Common stock, $.001 par value per share; 100,000,000 shares authorized, 48,380,800 shares issued and outstanding at September 30, 2009 and 47,357,017 shares issued and outstanding at December 31, 2008
    48       47  
Additional paid-in capital
    187,181       180,869  
Accumulated deficit
    (112,523 )     (117,195 )
Accumulated other comprehensive loss
    (170 )     (138 )
Total stockholders’ equity
    74,536       63,583  
Total liabilities and stockholders’ equity
  $ 96,114     $ 81,948  
 
SEE ACCOMPANYING NOTES TO UNAUDITED CONDENSED
CONSOLIDATED FINANCIAL STATEMENTS.

 
4

 

LIVEPERSON, INC.
 
CONDENSED CONSOLIDATED STATEMENTS OF INCOME
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
UNAUDITED

   
Three Months Ended 
September 30,
   
Nine Months Ended 
September 30,
 
   
2009
   
2008
   
2009
   
2008
 
Revenue
  $ 22,262     $ 19,375     $ 62,722     $ 55,048  
Operating expenses:
                               
Cost of revenue
    5,495       5,226       15,007       15,346  
Product development
    3,109       3,299       8,949       9,876  
Sales and marketing
    6,535       6,624       19,947       18,864  
General and administrative
    3,312       3,399       9,991       10,034  
Amortization of intangibles
    118       352       662       1,134  
Total operating expenses
    18,569       18,900       54,556       55,254  
Income (loss) from operations
    3,693       475       8,166       (206 )
Other income (expense):
                               
Financial income (expense)
    75       (123 )     (21 )     (125 )
Interest income
    15       79       71       270  
Total other income (expense), net
    90       (44 )     50       145  
Income (loss) before provision for (benefit from) income taxes
    3,783       431       8,216       (61 )
Provision for (benefit from) income taxes
    1,516       21       3,544       (68 )
Net income
  $ 2,267     $ 410     $ 4,672     $ 7  
Basic net income per common share
  $ .05     $ 0.01     $ 0.10     $ 0.00  
Diluted net income per common share
  $ .05     $ 0.01     $ 0.10     $ 0.00  
Weighted average shares outstanding used in basic net income per common share calculation
    47,968,777       47,229,252       47,684,047       47,433,924  
Weighted average shares outstanding used in diluted net income per common share calculation
    49,683,730       48,678,016       48,553,525       49,064,151  
 
Income from operations for the three and nine months ended September 30, 2009 includes stock-based compensation expense related to ASC 718-10 in the amount of $1,211 and $3,491, respectively. Income (loss) from operations for the three and nine months ended September 30, 2008 includes stock-based compensation expense related to ASC 718-10 in the amount of $1,014 and $3,178, respectively. See Note 1(E).
 
SEE ACCOMPANYING NOTES TO UNAUDITED CONDENSED
CONSOLIDATED FINANCIAL STATEMENTS.

 
5

 

LIVEPERSON, INC.
 
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
UNAUDITED
 
   
Nine Months Ended 
September 30,
 
   
2009
   
2008
 
CASH FLOWS FROM OPERATING ACTIVITIES:
           
Net income
  $ 4,672     $ 7  
Adjustments to reconcile net income to net cash provided by operating activities:
               
Stock-based compensation expense
    3,491       3,178  
Depreciation
    2,448       1,324  
Amortization of intangibles
    1,583       2,055  
Deferred income taxes
    636       (39 )
Provision for doubtful accounts
    30       68  
                 
CHANGES IN OPERATING ASSETS AND LIABILITIES:
               
Accounts receivable
    (2,899 )     (952 )
Prepaid expenses and other current assets
    (833 )     (523 )
Deferred implementation costs
    13       55  
Security deposits
    28       114  
Accounts payable
    1,309       1,054  
Accrued expenses
    1,581       (494 )
Deferred revenue
    787       408  
Net cash provided by operating activities
    12,846       6,255  
                 
CASH FLOWS FROM INVESTING ACTIVITIES:
               
Purchases of property and equipment, including capitalized software
    (4,091 )     (5,393 )
Acquisition of patents
    (475 )     -  
Acquisition of Kasamba
          (112 )
Acquisition of Proficient
    (84 )     (132 )
Net cash used in investing activities
    (4,650 )     (5,637 )
                 
CASH FLOWS FROM FINANCING ACTIVITIES:
               
Repurchase of common stock
    (28 )     (3,680 )
Excess tax benefit from the exercise of employee stock options
    1,248       -  
Proceeds from issuance of common stock in connection with the exercise of options
    1,603       655  
Net cash provided by (used in) financing activities
    2,823       (3,025 )
Effect of foreign exchange rate changes on cash and cash equivalents
    (33 )     (42 )
Net increase (decrease) in cash and cash equivalents
    10,986       (2,449 )
Cash and cash equivalents at the beginning of the period
    25,500       26,222  
Cash and cash equivalents at the end of the period
  $ 36,486     $ 23,773  
 
Supplemental disclosure of non-cash investing activities:
 
During the nine months ended September 30, 2009, the Company settled a pre-acquisition contingency resulting in a decrease in accrued expenses in the amount of $566.
 
Cash flows from investing for the nine months ended September 30, 2009 does not include the purchases of approximately $147 of capitalized equipment related to the Company’s colocation facility as the corresponding invoices are included in accounts payable at September 30, 2009, and therefore did not have an impact on cash flows for the period.
 
Cash flows from investing for the nine months ended September 30, 2008 does not include the purchases of approximately $936 of capitalized equipment related to the Company’s colocation facility as the corresponding invoices are included in accounts payable at September 30, 2008, and therefore did not have an impact on cash flows for the period.
 
SEE ACCOMPANYING NOTES TO UNAUDITED CONDENSED
CONSOLIDATED FINANCIAL STATEMENTS.

 
6

 

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”) was incorporated in the State of Delaware in 1995. The Company commenced operations in 1996. LivePerson provides online engagement solutions that facilitate real-time assistance and expert advice.
 
The Company’s primary revenue source is the sale of the LivePerson services to businesses of all sizes. The Company also facilitates online transactions between independent service providers (“Experts”) who provide expert online advice to individual consumers (“Users”). Headquartered in New York City, the Company’s product development staff, help desk and online sales support are located in Israel. The Company also maintains sales and professional services offices in Atlanta and the United Kingdom.
 
(B)  UNAUDITED CONDENSED CONSOLIDATED FINANCIAL INFORMATION
 
The accompanying condensed consolidated financial statements as of September 30, 2009 and for the three and nine months ended September 30, 2009 and 2008 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 September 30, 2009, and the consolidated results of operations and cash flows for the interim periods ended September 30, 2009 and 2008. 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, 2008 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, 2008, included in the Company’s Annual Report on Form 10-K filed with the SEC on March 13, 2009.
 
The Company has evaluated subsequent events through November 5, 2009, which is the date the financial statements were available to be issued.
 
(C)  RECLASSIFICATIONS
 
Certain prior year financial information has been reclassified to conform with fiscal 2009 financial statement presentation.
 
(D)  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 service and client usage. The majority of the Company’s larger clients 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 client 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.

 
7

 
 
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 provide added value to the customer on a standalone basis, the Company recognizes professional service fees upon completion and customer acceptance because they have established objective and reliable evidence of the fair value of the undelivered hosting services. 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 client 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 to the fact that the Company performs as an agent without any risk of loss for collection. The Company collects a fee from the consumer 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 or determinable.
 
(E)  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 is a revision to SFAS No. 123, “Accounting for Stock-Based Compensation,” and supersedes Accounting Principles Board (“APB”) Opinion No. 25, “Accounting for Stock Issued to Employees,” and its related implementation guidance. 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 Company adopted ASC 718-10 using the modified prospective transition method, which requires the application of the accounting standard as of January 1, 2006. The Company’s Consolidated Financial Statements as of and for the three and nine months ended September 30, 2009 and 2008 reflect the impact of ASC 718-10. ASC 718-10 requires companies to estimate the fair value of share-based payment awards on the date of grant using an option-pricing model. The value of the portion of the award that is ultimately expected to vest is recognized as expense over the requisite service periods in the Company’s Consolidated Statements of Operations. Stock-based compensation recognized in the Company’s Consolidated Statements of Income for the three and nine months ended September 30, 2009 and 2008 includes compensation expense for share-based awards granted prior to, but not fully vested as of January 1, 2006 based on the grant date fair value estimated in accordance with ASC 718-10 as well as compensation expense for share-based awards granted subsequent to January 1, 2006 in accordance with ASC 718-10. The Company currently uses the Black-Scholes option pricing model to determine grant date fair value.

 
8

 
 
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 nine months ended September 30, 2009 and 2008:
 
   
Three Months Ended
September 30,
   
Nine Months Ended
September 30,
 
   
2009
   
2008
   
2009
   
2008
 
Cost of revenue
  $ 213     $ 145     $ 579     $ 420  
Product development expense
    356       302       1,030       1,015  
Sales and marketing expense
    361       292       961       881  
General and administrative expense
    281       275       921       862  
Total stock based compensation included in operating expenses
  $ 1,211     $ 1,014     $ 3,491     $ 3,178  
 
The per share weighted average fair value of stock options granted and assumed during the three and nine months ended September 30, 2009 was $2.33 and $1.24, respectively. The per share weighted average fair value of stock options granted and assumed during the three and nine months ended September 30, 2008 was $1.65 and $1.93, 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
September 30,
   
Nine Months Ended
September 30,
 
   
2009
   
2008
   
2009
   
2008
 
Dividend yield
    0.0       0.0       0.0       0.0  
Risk-free interest rate
    3.4%-3.8       3.9%-4.0       2.8%-3.9       1.9%-4.0  
Expected life (in years)
    5.0       4.9       5.0       4.2-4.9  
Historical volatility
    64.6%-65.7       68.5       64.6%-68.2       68.5%-71.5  
 
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. Pursuant to the provisions of the 2000 Plan, the number of shares of common stock available for issuance thereunder automatically increases on the first trading day in each calendar year by an amount equal to three percent (3%) of the total number of shares of the Company’s common stock outstanding on the last trading day of the immediately preceding calendar year, but in no event shall such annual increase exceed 1,500,000 shares.  As of December 31, 2008, approximately 12,385,000 shares of common stock were reserved for issuance under the 2000 Plan (taking into account all option exercises through December 31, 2008).
 
The Company established the 2009 Stock Incentive Plan (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, thereby reserving for issuance 19,567,744 shares of common stock in the aggregate. Options to acquire common stock granted thereunder have ten-year terms. As of September 30, 2009, approximately 18,880,000 shares of common stock were reserved for issuance under the 2009 Plan (taking into account all option exercises through September 30, 2009). As of September 30, 2009, there was $7,779 of total unrecognized compensation cost related to nonvested share-based compensation arrangements. That cost, as of September 30, 2009, is expected to be recognized over a weighted average period of approximately 1.9 years.

 
9

 
 
A summary of the Company’s stock option activity and weighted average exercise prices is as follows:
 
   
Options
   
Weighted
Average 
Exercise Price
 
Options outstanding at December 31, 2008
    9,939,045     $ 3.67  
Options granted
    1,630,000       2.13  
Options exercised
    (1,030,006 )     1.60  
Options cancelled
    (939,859 )     3.64  
Options outstanding at September 30, 2009
    9,599,180       3.61  
Options exercisable at September 30, 2009
    5,380,862     $ 3.69  
 
The total intrinsic value of stock options exercised during the period ended September 30, 2009 was approximately $2,130. The total intrinsic value of options exercisable at September 30, 2009 was approximately $8,751. The total intrinsic value of options expected to vest is approximately $7,485.
 
A summary of the status of the Company’s nonvested options as of December 31, 2008, and changes during the nine months ended September 30, 2009 is as follows:
 
   
Options
   
Weighted
Average Grant-
Date Fair Value
 
Nonvested Options at December 31, 2008
    4,471,251     $ 2.59  
Granted
    1,630,000       1.24  
Vested
    (1,344,048 )     2.67  
Cancelled
    (538,885 )     2.19  
Nonvested Options at September 30, 2009
    4,218,318     $ 2.09  
 
(F)  BASIC AND DILUTED NET INCOME PER SHARE
 
The Company calculates earnings per share 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 nine months ended September 30, 2009 includes the effect of options to purchase 4,745,087 and 3,671,729 shares, respectively, of common stock with a weighted average exercise price of $2.16 and $1.85, respectively. Diluted net income per common share for the three and nine months ended September 30, 2008 includes the effect of options to purchase 2,704,344 and 3,576,467 shares, respectively, of common stock with a weighted average exercise price of $1.37 and $1.75, respectively.
 
A reconciliation of shares used in calculating basic and diluted earnings per share follows:
 
   
Three Months Ended
September 30,
   
Nine Months Ended
September 30,
 
   
2009
   
2008
   
2009
   
2008
 
Basic
    47,968,777       47,229,252       47,684,047       47,433,924  
Effect of assumed exercised options
    1,714,953       1,448,764       869,478       1,630,227  
Diluted
    49,683,730       48,678,016       48,553,525       49,064,151  

 
10

 
 
(G)  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. Due to the acquisition of Kasamba Inc. in October 2007, the Company is organized into two operating segments for purposes of making operating decisions and assessing performance. The Company may reorganize its operations in the future when the integration of its products and services are complete. The Business segment supports and manages real-time online interactions - chat, voice/click-to-call, email and self-service/knowledgebase and sells its products and services to 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 and 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, general and administrative, non cash-compensation expenses and income taxes 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 September 30, 2009, 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
  $ 18,417     $     $ 18,417     $  
Hosted services - Consumer
    3,123                   3,123  
Professional services
    722             722        
Total revenue
    22,262             19,139       3,123  
Cost of revenue
    5,495             4,603       892  
Sales and marketing
    6,535             4,808       1,727  
Amortization of intangibles
    118             46       72  
Unallocated corporate expenses
    6,421       6,421              
Operating income (loss)
  $ 3,693     $ (6,421 )   $ 9,682     $ 432  
 
Summarized financial information by segment for the three months ended September 30, 2008, 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
  $ 15,769     $     $ 15,769     $  
Hosted services - Consumer
    2,647                   2,647  
Professional services
    959             959        
Total revenue
    19,375             16,728       2,647  
Cost of revenue
    5,226             4,268       958  
Sales and marketing
    6,624             4,572       2,052  
Amortization of intangibles
    352             202       150  
Unallocated corporate expenses
    6,698       6,698              
Operating income (loss)
  $ 475     $ (6,698 )   $ 7,686     $ (513 )

 
11

 
 
Revenues attributable to domestic and foreign operations for the three months ended September 30, 2009 and 2008, follows:
 
   
September 30,
 
   
2009
   
2008
 
United States
  $ 16,874     $ 14,888  
United Kingdom
    2,439       2,250  
Other Countries
    2,949       2,237  
Total revenue
  $ 22,262     $ 19,375  
 
Summarized financial information by segment for the nine months ended September 30, 2009, 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
  $ 52,075     $     $ 52,075     $  
Hosted services - Consumer
    8,530                   8,530  
Professional services
    2,117             2,117        
Total revenue
    62,722             54,192       8,530  
Cost of revenue
    15,007             12,369       2,638  
Sales and marketing
    19,947             14,716       5,231  
Amortization of intangibles
    662             446       216  
Unallocated corporate expenses
    18,940       18,940              
Operating income (loss)
  $ 8,166     $ (18,940 )   $ 26,661     $ 445  
 
Summarized financial information by segment for the nine months ended September 30, 2008, 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
  $ 44,257     $     $ 44,257     $  
Hosted services - Consumer
    8,132                   8,132  
Professional services
    2,659             2,659        
Total revenue
    55,048             46,916       8,132  
Cost of revenue
    15,346             12,520       2,826  
Sales and marketing
    18,864             13,356       5,508  
Amortization of intangibles
    1,134             686       448  
Unallocated corporate expenses
    19,910       19,910              
Operating income (loss)
  $ (206 )   $ (19,910 )   $ 20,354     $ (650 )
 
Revenues attributable to domestic and foreign operations for the nine months ended September 30, 2009 and 2008, follows:
 
   
September 30,
 
   
2009
   
2008
 
United States
  $ 46,927     $ 42,599  
United Kingdom
    6,617       6,135  
Other Countries
    9,178       6,314  
Total revenue
  $ 62,722     $ 55,048  
 
12

 
Long-lived assets by geographic region follows:
 
   
September 30, 2009
   
December 31, 2008
 
United States
  $ 31,699     $ 29,664  
Israel
    14,130       15,732  
Total long-lived assets
  $ 45,829     $ 45,396  
 
(H)  GOODWILL AND INTANGIBLE ASSETS
 
The changes in the carrying amount of goodwill for the nine months ended September 30, 2009 are as follows:
 
   
Total
   
Business
   
Consumer
 
Balance as of December 31, 2008
  $ 24,388     $ 15,798     $ 8,590  
Adjustments to goodwill:
                       
Contingent earnout payments
    84       84        
Settlement of pre-acquisition contingency
    (566 )           (566 )
Balance as of September 30, 2009
  $ 23,906     $ 15,882     $ 8,024  
 
The changes in the carrying amount of goodwill for the year ended December 31, 2008 are as follows:
 
   
Total
   
Business
   
Consumer
 
Balance as of December 31, 2007
  $ 51,684     $ 18,744     $ 32,940  
Adjustments to goodwill:
                       
Impairment
    (23,501 )           (23,501 )
Release of valuation reserve on deferred tax asset
    (3,867 )     (3,025 )     (842 )
Other
    72       79       (7 )
Balance as of December 31, 2008
  $ 24,388     $ 15,798     $ 8,590  
 
Intangible assets are summarized as follows (see Note 3):
 
Acquired Intangible Assets
 
   
As of September 30, 2009
 
   
Gross 
Carrying 
Amount
 
Weighted 
Average
Amortization
Period
 
Accumulated
Amortization
 
Amortizing intangible assets:
             
Technology
  $ 5,410  
3.8 years
  $ 2,955  
Customer contracts/customer lists
    2,400  
3.0 years
    2,400  
Trade names
    630  
3.0 years
    420  
Non-compete agreements
    410  
1.2 years
    410  
Patents
    475  
11.0 years
    7  
Other
    235  
3.0 years
    157  
Total
  $ 9,560       $ 6,349  

 
13

 
 
   
As of December 31, 2008
 
   
Gross 
Carrying 
Amount
 
Weighted 
Average
Amortization
Period
 
Accumulated
Amortization
 
Amortizing intangible assets:
             
Technology
  $ 5,410  
3.8 years
  $ 2,034  
Customer contracts/customer lists
    2,400  
3.0 years
    1,961  
Trade names
    630  
3.0 years
    263  
Non-compete agreements
    410  
1.2 years
    410  
Other
    235  
3.0 years
    98  
Total
  $ 9,085       $ 4,766  
 
Amortization expense is calculated on a straight-line basis over the estimated useful life of the asset. Aggregate amortization expense for intangible assets was $425 and $1,583 for the three and nine months ended September 30, 2009, respectively, and $659 and $2,055 for the three and nine months ended September 30, 2008, respectively. Estimated amortization expense for the next five years is: $390 in 2009, $1,487 in 2010, $964 in 2011, $43 in 2012, $43 in 2013 and $284 thereafter.
 
(I)  RECENTLY ISSUED FASB ACCOUNTING STANDARDS UPDATES
 
In October 2009, FASB Accounting Standards Update 2009-13 addressed the accounting for multiple-deliverable arrangements to enable vendors to account for products or services (deliverables) separately rather than as a combined unit. Specifically, this update amends the criteria in Subtopic 605-25, Revenue Recognition-Multiple-Element Arrangements, for separating consideration in multiple-deliverable arrangements. 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. This guidance also eliminates the residual method of allocation and requires that arrangement consideration be allocated at the inception of the arrangement to all deliverables using the relative selling price method. In addition, this guidance significantly expands required disclosures related to a vendor’s multiple-deliverable revenue arrangements. FASB Accounting Standards Update 2009-13 is effective prospectively for revenue arrangements entered into or materially modified in fiscal years beginning on or after June 15, 2010. Early adoption is permitted. The Company is currently assessing the impact of this update on the its consolidated financial statements.
 
In September 2009, the FASB published FASB Accounting Standards Update No. 2009-12, Fair Value Measurements and Disclosures (Topic 820)—Investments in Certain Entities That Calculate Net Asset Value per Share (or Its Equivalent). This update amends Subtopic 820-10, Fair Value Measurements and Disclosures—Overall, to permit a reporting entity to measure the fair value of certain investments on the basis of the net asset value per share of the investment (or its equivalent). This update also requires new disclosures, by major category of investments about the attributes of investments within the scope of this amendment to the Codification. The guidance in this update is effective for interim and annual periods ending after December 15, 2009. Early application is permitted. The adoption of this update will not have a material impact on the Company’s consolidated financial statements.
 
In August 2009, FASB Accounting Standards Update 2009-05 included amendments to Subtopic 820-10, Fair Value Measurements and Disclosures—Overall, for the fair value measurement of liabilities and provides clarification that in circumstances in which a quoted price in an active market for the identical liability is not available, a reporting entity is required to measure fair value using one or more of the techniques provided for in this update. This update also clarifies that when estimating the fair value of a liability, a reporting entity is not required to include a separate input or adjustment to other inputs relating to the existence of a restriction that prevents the transfer of a liability and that both a quoted price in an active market for the identical liability at the measurement date and the quoted price for the identical liability when traded as an asset in an active market when no adjustments to the quoted price of the asset are required are Level 1 fair value measurements. The adoption of this update did not have a material impact on the Company’s consolidated financial statements.

 
14

 
 
In July 2009, the FASB issued ASC 105-10, “Generally Accepted Accounting Principles”. ASC 105-10 established the FASB Accounting Standards Codification as the single source of authoritative U.S. generally accepted accounting principles (“U.S. GAAP”) recognized by the FASB to be applied by nongovernmental entities. ASC 105-10 will supersede all existing non-SEC accounting and reporting standards. All other nongrandfathered non-SEC accounting literature not included in ASC 105-10 will become nonauthoritative. Following ASC 105-10, the FASB will not issue new standards in the form of Statements, FASB Staff Positions, or Emerging Issues Task Force Abstracts. Instead, the FASB will issue Accounting Standards Updates, which will serve only to: (a) update the Codification; (b) provide background information about the guidance; and (c) provide the bases for conclusions on the change(s) in the Codification. ASC 105-10 and the Codification are effective for financial statements issued for interim and annual periods ending after September 15, 2009. The adoption of ASC 105-10 did not have a material impact on the Company’s consolidated financial statements.
 
In May 2009, the FASB issued ASC 855-10, “Subsequent Events”. ASC 855-10 established general standards of accounting for and disclosures of events that occur after the balance sheet date but before financial statements are issued or are available to be issued. Specifically, ASC 855-10 provides; (a) the period after the balance sheet date during which management of a reporting entity should evaluate events or transactions that may occur for potential recognition or disclosure in the financial statements; (b) the circumstances under which an entity should recognize events or transactions occurring after the balance sheet date in its financial statements; and (c) the disclosures that an entity should make about events or transactions that occurred after the balance sheet date. ASC 855-10 is effective for interim or annual financial periods ending after June 15, 2009, and shall be applied prospectively. The adoption of this ASC did not have a material impact on the Company’s consolidated financial statements.
 
In April 2009, the FASB issued ASC 825-10-65, Interim Disclosures about Fair Value of Financial Instruments. ASC 825-10-65 amends ASC 825-10-50, Disclosures About Fair Value of Financial Instrument, to require disclosures about fair value of financial instruments for interim reporting periods of publicly traded companies as well as in annual financial statements. ASC 825-10-65 also amends ASC 270-10, Interim Financial Reporting, to require those disclosures in summarized financial information at interim reporting periods. ASC 825-10-65 is effective for interim reporting periods ending after June 15, 2009, with early adoption permitted for periods ending after March 15, 2009. ASC 825-10-65 does not require disclosures for earlier periods presented for comparative purposes at initial adoption. In periods after initial adoption, ASC 825-10-65 requires comparative disclosures only for periods ending after initial adoption. The adoption of this ASC did not have a material impact on the Company’s consolidated financial statements.
 
In April 2009, the FASB issued ASC 805-10, “Accounting for Assets Acquired and Liabilities assumed in a Business Combination That Arise from Contingencies —an amendment of FASB Statement No. 141 (Revised December 2007), Business Combinations”. ASC 805-10 addresses application issues raised by preparers, auditors, and members of the legal profession on initial recognition and measurement, subsequent measurement and accounting, and disclosure of assets and liabilities arising from contingencies in a business combination. ASC 805-10 is effective for assets or liabilities arising from contingencies in business combinations for which the acquisition date is on or after the beginning of the first annual reporting period beginning on or after December 15, 2008. ASC 805-10 will have an impact on the Company’s accounting for any future acquisitions and its consolidated financial statements.
 
In April 2008, the FASB issued ASC 350-10, “Determination of the Useful Life of Intangible Assets”. ASC 350-10 amends the factors that should be considered in developing renewal or extension assumptions used to determine the useful life of a recognized intangible asset under ASC 350-10, “Goodwill and Other Intangible Assets.” ASC No. 350-10 is effective for fiscal years beginning after December 15, 2008. The adoption of this ASC did not have a material impact on the Company’s consolidated financial statements.

 
15

 

In March 2008, the FASB issued ASC 815-10, “Disclosures about Derivative Instruments and Hedging Activities — an amendment of FASB Statement No. 133”. ASC 815-10 requires enhanced disclosures regarding derivatives and hedging activities, including: (a) the manner in which an entity uses derivative instruments; (b) the manner in which derivative instruments and related hedged items are accounted for under Accounting Standards Codification 815-10, “Accounting for Derivative Instruments and Hedging Activities” and (c) the effect of derivative instruments and related hedged items on an entity’s financial position, financial performance, and cash flows. ASC 815-10 is effective for financial statements issued for fiscal years and interim periods beginning after November 15, 2008. As ASC 815-10 relates specifically to disclosures, it currently has no impact on the Company’s consolidated financial statements.
 
In December 2007, the FASB issued ASC 805-10, “Business Combinations”.  ASC 805-10 established principles and requirements for how an acquirer recognizes and measures in its financial statements the identifiable assets acquired, the liabilities assumed, any noncontrolling interest in the acquiree, and the goodwill acquired. ASC 805-10 also established disclosure requirements to enable the evaluation of the nature and financial effects of the business combination. ASC 805-10 is effective for fiscal years beginning after December 15, 2008. ASC 805-10 will have an impact on its accounting for any future acquisitions and its consolidated financial statements.
 
In September 2006, the FASB issued ASC 820-10, “Fair Value Measurements”, which defines fair value, establishes a framework for measuring fair value and expands disclosures about fair value measurements. ASC 820-10 applies to other accounting pronouncements that require or permit fair value measurements, but does not require any new fair value measurements. ASC 820-10 is effective for financial statements issued for fiscal years beginning after November 15, 2007 and interim periods within those fiscal years, with the exception of all non-financial assets and liabilities, which will be effective for years beginning after November 15, 2008. The Company adopted the required provisions of ASC 820-10 that became effective in its first quarter of 2008. The adoption of these provisions did not have a material impact on the Company’s consolidated financial statements. In February 2008, the FASB issued ASC 820-10-15, “Effective Date of FASB ASC 820-10”. ASC 820-10-15 delays the effective date of ASC 820-10 for nonfinancial assets and nonfinancial liabilities, except for certain items that are recognized or disclosed at fair value in the financial statements on a recurring basis (at least annually). In October 2008, the FASB issued ASC 820-10-35, “Determining the Fair Value of a Financial Asset When the Market for That Asset Is Not Active”. ASC 820-10-35 applies to financial assets within the scope of accounting pronouncements that require or permit fair value measurements in accordance with ASC 820-10. This ASC clarifies the application of ASC 820-10 in determining the fair values of assets or liabilities in a market that is not active. In April 2009, the FASB issued ASC 820-10-65, “Determining Fair Value When the Volume and Level of Activity for the Asset or Liability Have Significantly Decreased and Identifying Transactions That Are Not Orderly”. ASC 820-10-65 does not change the definition of fair value as detailed in ASC 820-10, but provides additional guidance for estimating fair value in accordance with ASC 820-10 when the volume and level of activity for the asset or liability have significantly decreased. The provisions of ASC 820-10-65 are effective for interim and annual reporting periods ending after June 15, 2009, with early adoption permitted for periods ending after March 15, 2009. If early adoption is elected for either ASC 320-10 or ASC 825-10 and ASC 270-10, ASC 820-10-65 must also be adopted early.
 
(2)  BALANCE SHEET COMPONENTS
 
Property and equipment is summarized as follows:
 
   
September 30, 2009
   
December 31, 2008
 
             
Computer equipment and software
  $ 15,590     $ 11,690  
Furniture, equipment and building improvements
    799       741  
      16,389       12,431  
Less accumulated depreciation
    7,403       4,958  
Total
  $ 8,986     $ 7,473  
 
Accrued expenses consist of the following:
 
   
September 30, 2009
   
December 31, 2008
 
             
Payroll and other employee related costs
  $ 6,378     $ 5,536  
Professional services and consulting and other vendor fees
    2,759       2,879  
Sales commissions
    472       256  
Other
    494       417  
Total
  $ 10,103     $ 9,088  

 
16

 
 
(3)  ASSET 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 clients and provided an innovative product marketing team. The Company incurred additional costs related to litigation resulting from an earn-out dispute in the amount of $79, net and reduced the valuation reserve on acquired net operating losses in the amount of $3,025, resulting in a net decrease in goodwill in the amount of $2,946 in the twelve months ended December 31, 2008. The Company incurred additional costs related to the earn-out litigation in the amount of $84, resulting in an increase in goodwill in the nine months ended September 30, 2009.
 
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. All 1,127,985 shares are included in the weighted average shares outstanding used in basic and diluted net income per common share as of March 31, 2007. In accordance with the purchase agreement, the earn-out consideration is 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. The complaint filed by the Shareholders’ Representative sought certain documentation relating to calculation of the earn-out consideration, and demands payment of damages on the grounds that substantially all of the remaining contingently issuable earn-out shares should have been paid. The Company believes the claims are without merit, intends to vigorously defend against this lawsuit, and does not currently expect that the calculation of the total shares issued will differ significantly from the amount issued to date.
 
The components of the intangible assets are as follows:
 
   
Weighted 
Average Useful 
Life (months)
   
Amount
 
Customer relationships
    36     $ 2,400  
Technology
    18       500  
Non-compete agreements
    24       100  
            $ 3,000  
 
The net intangible assets were fully amortized as of September 30, 2009. The net intangible assets of $439 are included in “Assets - Intangibles, net” on the Company’s December 31, 2008 balance sheet.

Kasamba Inc.
 
On October 3, 2007, the Company acquired Kasamba Inc. (“Kasamba”), an online provider of live expert advice delivered to consumers via real-time chat. This transaction was accounted for under the purchase method of accounting and, accordingly, the operating results of Kasamba were included in the Company’s consolidated results of operations from October 3, 2007. The acquisition represents the Company’s initial expansion beyond its historical business-to-business focus into the business-to-consumer market, and is also expected to extend the value the Company delivers to its growing base of business customers through a community that connects consumers with experts in a range of categories. During the twelve months ended December 31, 2008, the Company reduced accrued acquisitions costs in the amount of $7, reduced the valuation reserve on acquired net operating losses in the amount of $842 and recorded an impairment charge in the amount of $23,501, resulting in a decrease in goodwill in the amount of $24,350. During the nine months ended September 30, 2009, the Company settled a pre-acquisition contingency resulting in a $566 decrease in goodwill.

 
17

 
 
The components of the intangible assets are as follows:
 
   
Weighted 
Average Useful 
Life (months)
   
Amount
 
Technology
    48     $ 4,910  
Trade name
    36       630  
Expert network
    36       235  
Non-compete agreements
    12       310  
Total
          $ 6,085  
 
The net intangible assets of $2,743 and $3,880 are included in “Assets - Intangibles, net” on the Company’s September 30, 2009 and December 31, 2008 balance sheets, respectively.
 
(4)  FAIR VALUE MEASUREMENTS
 
Effective January 1, 2008, the Company adopted 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. As noted in Note 1(h) above, the Company adopted the provisions of ASC 820-10 with respect to its non-financial assets and liabilities during the first quarter of fiscal 2009. 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.
 
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 and indefinite-lived intangibles for impairment at the reporting unit level. The Company uses a discounted cash flow analysis to determine the fair market value of the reporting unit. This measurement is classified based on level 3 input. 

 
18

 
 
(5)  COMMITMENTS AND CONTINGENCIES
 
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 nine months ended September 30, 2009 was approximately $1,279 and $3,502, respectively. Rental expense for operating leases for the three and nine months ended September 30, 2008 was approximately $682 and $1,878, 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 complaint filed by the Shareholders’ Representative sought certain documentation relating to calculation of the earn-out consideration, and demands payment of damages on the grounds that substantially all of the remaining contingently issuable earn-out shares should have been paid. The Company believes the claims are without merit, intends to vigorously defend against this lawsuit, and does not currently expect that the calculation of the total shares issued will differ significantly from the amount issued to date.
 
On May 15, 2009, the Company filed a complaint in the United States District Court for the Southern District of New York against InstantService, Inc. (“InstantService”) asserting claims that InstantService infringes the U.S. Patent Nos. 6,519,628 and 7,526,439 owned by the Company. The Company is seeking damages for infringement and an injunction against future infringement of its patents. On June 2, 2009, the Company filed a first amended complaint seeking a declaratory judgment that a patent purportedly owned by InstantService is invalid and not infringed by the Company’s products. InstantService has not answered the complaint and has not filed counterclaims, but did file a motion to dismiss one of four causes of action. The case is in its early stages. The Company believes its claims have merit and that InstantService’s motion to dismiss is without merit. The Company intends to vigorously pursue its claims.
 
The Company is not currently party to any other legal proceedings. From time to time, the Company may be subject to various claims and legal actions arising in the ordinary course of business.
 
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 client 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.

 
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OVERVIEW
 
LivePerson provides online engagement solutions that facilitate real-time assistance and expert advice. Connecting businesses and independent experts with individual consumers seeking help on the Web, our hosted software platform creates more relevant, compelling, and personalized online experiences. We were incorporated in the State of Delaware in November 1995 and the LivePerson service was introduced initially in November 1998.
 
The Company is organized into two operating segments. The Business segment facilitates real-time online interactions — chat, voice/click-to-call, email and self-service/knowledgebase for global corporations of all sizes. The Consumer segment facilitates online transactions between independent Experts and individual consumers.
 
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:
 
 
·
Upgrading our technology. We are increasing the level of automation used to deploy our services with customers enabling faster, more efficient deployment and expansion. We are also investing in data reporting tools that will enable our customers to analyze their online businesses at a more detailed level and with greater reporting flexibility.
 
 
·
Expanding our international presence. We are increasing our investment in large international markets primarily in Western Europe where we can leverage our brand recognition and potentially expand our client base.
 
 
·
Reorganizing our sales organization to improve operating efficiencies. We recently restructured our sales force with a single head of sales to leverage symmetries between our direct sales force and the sales force for small and mid-sized businesses (“SMB”).
 
THIRD QUARTER 2009
 
Highlights of the third quarter 2009 compared to the third quarter 2008 are as follows:
 
 
·
Revenue increased 15% to $22.3 million from $19.4 million.
 
 
·
Gross profit margin increased to 75% from 73%.
 
 
·
Operating expenses decreased 2% to $18.6 million from $18.9 million.
 
 
·
Net income increased 453% to $2.3 million from $0.4 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 605-25, “Revenue Recognition with Multiple-Element Arrangements”. We charge a monthly fee, which varies by service and client usage. The majority of our larger clients 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 client 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.

 
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We also sell certain of the LivePerson services directly via Internet download. These services are marketed as LivePerson Pro and LivePerson Contact Center for 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 provide added value to the customer on a standalone basis, we recognize professional service fees upon completion and customer acceptance because we have established objective and reliable evidence of the fair value of the undelivered hosting services. 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 client 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 to the fact that we perform as an agent without any risk of loss for collection. 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 or 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 is a revision to SFAS No. 123, “Accounting for Stock-Based Compensation,” and supersedes Accounting Principles Board (“APB”) Opinion No. 25, “Accounting for Stock Issued to Employees,” and its related implementation guidance. 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.
 
We adopted ASC 718-10 using the modified prospective transition method, which requires the application of the accounting standard as of January 1, 2006. Our Consolidated Financial Statements as of and for the years ended December 31, 2008, 2007 and 2006 reflect the impact of ASC 718-10. In accordance with the modified prospective transition method, our Consolidated Financial Statements for prior periods have not been restated to reflect, and do not include, the impact of ASC 718-10.
 
ASC 718-10 requires companies to estimate the fair value of share-based payment awards on the date of grant using an option-pricing model. The value of the portion of the award that is ultimately expected to vest is recognized as expense over the requisite service periods in our Consolidated Statements of Income. Stock-based compensation recognized in our Consolidated Statements of Income for the periods ended September 30, 2009 and 2008 includes compensation expense for share-based awards granted prior to, but not fully vested as of January 1, 2006 based on the grant date fair value estimated in accordance with ASC 718-10 as well as compensation expense for share-based awards granted subsequent to January 1, 2006 in accordance with ASC 718-10. We currently use the Black-Scholes option pricing model to determine grant date fair value.
 
As of September 30, 2009, there was approximately $7.8 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 1.9 years.

 
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ACCOUNTS RECEIVABLE
 
Our customers are primarily concentrated 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. Our concentration of credit risk is limited due to the large number of customers. No single customer accounted for or exceeded 10% of our total revenue in the three and nine months ended September 30, 2009 and 2008. Two customers accounted for approximately 23% of accounts receivable at September 30, 2009. No single customer accounted for or exceeded 10% of accounts receivable at December 31, 2008. We increased our allowance for doubtful accounts by $30,000 in the nine months ended September 30, 2009. This increase was principally due to an increase in accounts receivable as a result of increased sales and to the fact that a larger proportion of receivables are due from larger corporate clients that typically have longer payment cycles.
 
GOODWILL
 
In accordance with ASC 350-10, “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. Determining the fair value of a reporting unit under the first step of the goodwill impairment test and determining the fair value of individual assets and liabilities of a reporting unit (including unrecognized intangible assets) under 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. To assist in the process of determining goodwill impairment, we obtain appraisals from an independent valuation firm. In addition to the use of an independent valuation firm, 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 accordance with ASC 350-10, we completed our annual impairment test in the third quarter of 2009. Based on this test, we determined that no impairment had occurred. Beginning in the first quarter of 2009, we adopted the provisions of ASC 820-10. The adoption of this ASC did not have a material impact on our consolidated financial statements.
 
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.

 
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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 client relationship, accruals and other factors. Actual results could differ from those estimates.
 
RECENTLY ISSUED FASB ACCOUNTING STANDARDS UPDATES
 
In October 2009, FASB Accounting Standards Update 2009-13 addressed the accounting for multiple-deliverable arrangements to enable vendors to account for products or services (deliverables) separately rather than as a combined unit. Specifically, this update amends the criteria in Subtopic 605-25, Revenue Recognition-Multiple-Element Arrangements, for separating consideration in multiple-deliverable arrangements. 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. This guidance also eliminates the residual method of allocation and requires that arrangement consideration be allocated at the inception of the arrangement to all deliverables using the relative selling price method. In addition, this guidance significantly expands required disclosures related to a vendor’s multiple-deliverable revenue arrangements. FASB Accounting Standards Update 2009-13 is effective prospectively for revenue arrangements entered into or materially modified in fiscal years beginning on or after June 15, 2010. Early adoption is permitted. We are currently assessing the impact of this update on our consolidated financial statements.
 
In September 2009, the FASB published FASB Accounting Standards Update No. 2009-12, Fair Value Measurements and Disclosures (Topic 820)—Investments in Certain Entities That Calculate Net Asset Value per Share (or Its Equivalent). This update amends Subtopic 820-10, Fair Value Measurements and Disclosures—Overall, to permit a reporting entity to measure the fair value of certain investments based on the net asset value per share of the investment (or its equivalent). This update also requires new disclosures, by major category of investments about the attributes of investments within the scope of this amendment to the Codification. The guidance in this update is effective for interim and annual periods ending after December 15, 2009. The adoption of this update will not have a material impact on our consolidated financial statements.
 
In August 2009, FASB Accounting Standards Update 2009-05 included amendments to Subtopic 820-10, Fair Value Measurements and Disclosures—Overall, for the fair value measurement of liabilities and provides clarification that in circumstances in which a quoted price in an active market for the identical liability is not available, a reporting entity is required to measure fair value using one or more of the techniques provided for in this update. This update also clarifies that when estimating the fair value of a liability, a reporting entity is not required to include a separate input or adjustment to other inputs relating to the existence of a restriction that prevents the transfer of a liability and that both a quoted price in an active market for the identical liability at the measurement date and the quoted price for the identical liability when traded as an asset in an active market when no adjustments to the quoted price of the asset are required are Level 1 fair value measurements. The adoption of this update did not have a material impact on our consolidated financial statements.
 
In July 2009, the FASB issued ASC 105-10, “Generally Accepted Accounting Principles”. ASC 105-10 established the FASB Accounting Standards Codification as the single source of authoritative U.S. generally accepted accounting principles (“U.S. GAAP”) recognized by the FASB to be applied by nongovernmental entities. ASC 105-10 will supersede all existing non-SEC accounting and reporting standards. All other nongrandfathered non-SEC accounting literature not included in ASC 105-10 will become nonauthoritative. Following ASC 105-10, the FASB will not issue new standards in the form of Statements, FASB Staff Positions, or Emerging Issues Task Force Abstracts. Instead, the FASB will issue Accounting Standards Updates, which will serve only to: (a) update the Codification; (b) provide background information about the guidance; and (c) provide the bases for conclusions on the change(s) in the Codification. ASC 105-10 and the Codification are effective for financial statements issued for interim and annual periods ending after September 15, 2009. The adoption of ASC 105-10 did not have a material impact on our consolidated financial statements.

 
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In May 2009, the FASB issued ASC No. 855-10, “Subsequent Events”. ASC 855-10 established general standards of accounting for and disclosure of events that occur after the balance sheet date but before financial statements are issued or are available to be issued. Specifically, ASC 855-10 provides; (a) the period after the balance sheet date during which management of a reporting entity should evaluate events or transactions that may occur for potential recognition or disclosure in the financial statements; (b) the circumstances under which an entity should recognize events or transactions occurring after the balance sheet date in its financial statements; and (c) the disclosures that an entity should make about events or transactions that occurred after the balance sheet date. ASC 855-10 is effective for interim or annual financial periods ending after June 15, 2009, and shall be applied prospectively. The adoption of this FASB did not have a material impact on our consolidated financial statements.
 
In April 2009, the FASB issued ASC 825-10-65, Interim Disclosures about Fair Value of Financial Instruments. ASC 825-10-65 amends ASC 825-10-50, Disclosures About Fair Value of Financial Instruments, to require disclosures about fair value of financial instruments for interim reporting periods of publicly traded companies as well as in annual financial statements. ASC 825-10-65 also amends ASC 270-10, Interim Financial Reporting, to require those disclosures in summarized financial information at interim reporting periods. ASC 825-10-65 is effective for interim reporting periods ending after June 15, 2009, with early adoption permitted for periods ending after March 15, 2009. ASC 825-10-65 does not require disclosures for earlier periods presented for comparative purposes at initial adoption. In periods after initial adoption, ASC 825-10-65 requires comparative disclosures only for periods ending after initial adoption. The adoption of this ASC did not have a material impact on our consolidated financial statements.
 
In April 2009, the FASB issued ASC No. 805-10, “Accounting for Assets Acquired and Liabilities assumed in a Business Combination That Arise from Contingencies — an amendment of FASB Statement No. 141 (Revised December 2007), Business Combinations”. ASC 805-10 addresses application issues raised by preparers, auditors, and members of the legal profession on initial recognition and measurement, subsequent measurement and accounting, and disclosure of assets and liabilities arising from contingencies in a business combination. ASC 805-10 is effective for assets or liabilities arising from contingencies in business combinations for which the acquisition date is on or after the beginning of the first annual reporting period beginning on or after December 15, 2008. ASC 805-10 will have an impact on our accounting for any future acquisitions and on our consolidated financial statements.
 
In April 2008, the FASB issued ASC 350-10, “Determination of the Useful Life of Intangible Assets”. ASC 350-10 amends the factors that should be considered in developing renewal or extension assumptions used to determine the useful life of a recognized intangible asset under ASC 350-10, “Goodwill and Other Intangible Assets”. ASC 350-10 is effective for fiscal years beginning after December 15, 2008. The adoption of this ASC did not have a material impact on our consolidated financial statements.
 
In March 2008, the FASB issued ASC 815-10, “Disclosures about Derivative Instruments and Hedging Activities — an amendment of FASB Statement No. 133”. ASC 815-10 requires enhanced disclosures regarding derivatives and hedging activities, including: (a) the manner in which an entity uses derivative instruments; (b) the manner in which derivative instruments and related hedged items are accounted for under Accounting Standards Codification 815-10, “Accounting for Derivative Instruments and Hedging Activities” and (c) the effect of derivative instruments and related hedged items on an entity’s financial position, financial performance, and cash flows. ASC 815-10 is effective for financial statements issued for fiscal years and interim periods beginning after November 15, 2008. ASC 815-10 relates specifically to disclosures, it currently has no impact on our consolidated financial statements.
 
In December 2007, the FASB issued ASC 805-10, “Business Combinations”. ASC 805-10 established principles and requirements for how an acquirer recognizes and measures in its financial statements the identifiable assets acquired, the liabilities assumed, any noncontrolling interest in the acquiree, and the goodwill acquired. ASC 805-10 also established disclosure requirements to enable the evaluation of the nature and financial effects of the business combination. ASC 805-10 is effective for fiscal years beginning after December 15, 2008. ASC 805-10 will have an impact on our accounting for any future acquisitions and on our consolidated financial statements.

 
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In September 2006, the FASB issued ASC 820-10, “Fair Value Measurements”, which defines fair value, establishes a framework for measuring fair value and expands disclosures about fair value measurements. ASC 820-10 applies to other accounting pronouncements that require or permit fair value measurements, but does not require any new fair value measurements. ASC 820-10 is effective for financial statements issued for fiscal years beginning after November 15, 2007 and interim periods within those fiscal years, with the exception of all non-financial assets and liabilities, which will be effective for years beginning after November 15, 2008. We adopted the required provisions of ASC 820-10 that became effective in our first quarter of 2008. The adoption of these provisions did not have a material impact on our consolidated financial statements. In February 2008, the FASB issued ASC 820-10-15, “Effective Date of FASB ASC 820-10”. ASC 820-10-15 delays the effective date of ASC 820-10 for nonfinancial assets and nonfinancial liabilities, except for certain items that are recognized or disclosed at fair value in the financial statements on a recurring basis (at least annually). In October 2008, the FASB issued ASC 820-10-35, “Determining the Fair Value of a Financial Asset When the Market for That Asset Is Not Active”. ASC 820-10-35 applies to financial assets within the scope of accounting pronouncements that require or permit fair value measurements in accordance with ASC 820-10. This ASC clarifies the application of ASC 820-10 in determining the fair values of assets or liabilities in a market that is not active. In April 2009, the FASB issued ASC 820-10-65, “Determining Fair Value When the Volume and Level of Activity for the Asset or Liability Have Significantly Decreased and Identifying Transactions That Are Not Orderly”. ASC 820-10-65 does not change the definition of fair value as detailed in ASC 820-10, but provides additional guidance for estimating fair value in accordance with ASC 820-10 when the volume and level of activity for the asset or liability have significantly decreased. The provisions of ASC 820-10-65 are effective for interim and annual reporting periods ending after June 15, 2009, with early adoption permitted for periods ending after March 15, 2009. If early adoption is elected for either ASC 320-10 or ASC 825-10 and ASC 270-10, ASC 820-10-65 must also be adopted early.
 
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 client usage. The majority of our larger clients also pay a professional services fee related to implementation. A large proportion of our revenue from new clients comes from large corporations. These companies typically have more significant implementation requirements and more stringent data security standards. Such clients 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 86% of total revenue for the three and nine months ended September 30, 2009. Revenue attributable to our monthly hosted Business services accounted for 96% of total Business revenue for the three and nine months ended September 30, 2009. Revenue from our Business segment accounted for 86% and 85% of total revenue for the three and nine months ended September 30, 2008, respectively. Revenue attributable to our monthly hosted Business services accounted for 94% of total Business revenue for the three and nine months ended September 30, 2008. 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 clients’ operators and our clients’ resource constraints, we have historically experienced a lag between signing a client contract and recognizing revenue from that client. This lag has recently ranged from 30 to 90 days.
 
Revenue generated from online transactions between Experts and Users is recognized net of expert fees and accounted for approximately 14% of total revenue for the three and nine months ended September 30, 2009. Revenue generated from online transactions between Experts and Users accounted for approximately 14% and 15% of total revenue for the three and nine months ended September 30, 2008, respectively.
 
We also have entered into contractual arrangements that complement our direct sales force and online sales efforts. These are primarily with Web hosting and 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:

 
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·
compensation costs relating to employees who provide customer support and implementation services to our clients;
 
 
·
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 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 nine months ended September 30, 2009, we increased our allowance for doubtful accounts by $30,000 to approximately $370,000, principally due to an increase in accounts receivable as a result of increased sales and to the fact that a larger proportion of receivables are due from larger corporate clients that typically have longer payment cycles. During 2008, we increased our allowance for doubtful accounts by $148,000 to approximately $356,000, principally due to an increase in accounts receivable as a result of increased sales and to the fact that a larger proportion of receivables are due from larger corporate clients that typically have longer payment cycles, and we wrote off approximately $16,000 of previously reserved accounts, leaving a net allowance for doubtful accounts of $340,000. 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 nine months ended September 30, 2009 and 2008 consist of:
 
   
Three Months Ended
September 30,
   
Nine Months Ended
September 30,
 
   
2009
   
2008
   
2009
   
2008
 
Stock-based compensation expense related to ASC 718-10
  $ 1,211     $ 1,014     $ 3,491     $ 3,178  
Total
  $ 1,211     $ 1,014     $ 3,491     $ 3,178  
 
 
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RESULTS OF OPERATIONS
 
The Company is organized into two operating segments. The Business segment facilitates real-time online interactions — chat, voice/click-to-call, email and self-service/knowledgebase for global corporations of all sizes. The Consumer segment facilitates online transactions between independent Experts and individual Users.
 
Comparison of Three and Nine Months Ended September 30, 2009 and 2008
 
Revenue - Business. Revenue increased by 14% and 16% to $19.1 million and $54.2 million in the three and nine months ended September 30, 2009, respectively, from $16.7 million and $46.9 million in the comparable periods in 2008. This increase is primarily attributable to increased revenue from existing clients in the amount of approximately $2.0 million and $5.7 million, respectively, net of cancellations and, to a lesser extent, to revenue from new clients in the amount of approximately $0.7 million and $2.3 million, respectively, partially offset by a decrease in professional services revenue of approximately $237,000 and $542,000, respectively. Our revenue growth has typically been driven by a mix of revenue from newly added clients as well as expansion of existing clients.
 
Revenue - Consumer. Revenue increased by 18% and 5% to $3.1 million and $8.5 million in the three and nine months ended September 30, 2009, respectively, from $2.6 million and $8.1 million in the comparable periods in 2008. The increase in the three months ended September 30, 2009 is primarily attributable to a 15% increase in the fee we charge Experts in the amount of approximately $290,000 and, to a lesser extent, to an increase in gross revenue in the amount of approximately $200,000. The increase in the nine months ended September 30, 2009 is primarily attributable to the 15% increase in the fee we charge Experts in the amount of approximately $830,000 partially offset by lower total gross revenue in the amount of approximately $430,000.
 
Cost of Revenue - Business. Cost of revenue consists of compensation costs relating to employees who provide customer service to our clients, 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 8% to $4.6 million in the three months ended September 30, 2009 from $4.3 million in the comparable period in 2008. This increase in expenses is primarily attributable to an increase for primary and backup server facilities and allocated overhead related to costs of supporting our server and network infrastructure of approximately $441,000 as a result of increased revenue and was partially offset by a decrease in total compensation costs related to customer service and network operations personnel in the amount of approximately $156,000. Cost of revenue decreased by 1% to $12.4 million in the nine months ended September 30, 2009, from $12.5 million in the comparable period in 2008. This decrease is primarily attributable to lower total compensation costs related to customer service and network operations personnel in the amount of approximately $805,000 partially offset by an increase in expenses for primary and backup server facilities and allocated overhead related to costs of supporting our server and network infrastructure of approximately $657,000 as a result of increased revenue.
 
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 7% to $892,000 in the three months ended September 30, 2009 from $958,000 in the comparable period in 2008. This decrease is primarily attributable to lower total compensation costs for our customer service and network support personnel and costs of supporting our server and network infrastructure in the amount of approximately $82,000 and was partially offset by an increase in allocated overhead related to costs of supporting our server and network infrastructure in the amount of approximately $18,000. Cost of revenue decreased by 7% to $2.6 million in the nine months ended September 30, 2009 from $2.8 million in the comparable period in 2008. This decrease is primarily attributable to lower total compensation costs for our customer service and network support personnel and costs of supporting our server and network infrastructure in the amount of approximately $263,000 and was partially offset by an increase for primary and backup server facilities in the amount of approximately $94,000.
 
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. Product development costs decreased by 6% and 9% to $3.1 million and $8.9 million in the three and nine months ended September 30, 2009, respectively, from $3.3 million and $9.9 million in the comparable periods in 2008. This decrease is primarily attributable to lower total compensation costs for product development personnel as a result of favorable currency rate movements related to our Israeli operations as compared to the same periods in 2008.

 
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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 and trade show exhibit expenses. Sales and marketing expenses increased by 5% and 10% to $4.8 million and $14.7 million in the three and nine months ended September 30, 2009, respectively, from $4.6 million and $13.4 million in the comparable periods in 2008. This increase is primarily attributable to an increase in costs related to additional sales and marketing personnel of approximately $205,000 and $1.4 million for the three and nine months ended September 30, 2009, 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 trade show exhibit expenses. Sales and marketing expenses decreased by 16% to $1.7 million in the three months ended September 30, 2009 from $2.1 million in the comparable period in 2008. This decrease is primarily attributable to a decrease in advertising and promotional expenses of approximately $319,000. Sales and marketing expense decreased by 5% to $5.2 million in the nine months ended September 30, 2009 from $5.5 million in the comparable period in 2008. This decrease is primarily attributable to a decrease in advertising and promotional expenses of approximately $867,000 and was partially offset by an increase in compensation and allocated overhead for marketing personnel in the amount of approximately $615,000.
 
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 decreased by 3% to $3.3 million in the three months ended September 30, 2009 from $3.4 million in the comparable period in 2008. This decrease is primarily attributable to a decrease in franchise taxes, bank fees and recruiting costs in the amount of approximately $312,000, partially offset by an increase in legal expenses in the amount of approximately $203,000. General and administrative expenses remained flat at $10 million in the nine months ended September 30, 2009 compared  to the comparable period in 2008. An increase in compensation expense of approximately $524,000 was offset by a decrease in franchise taxes, bank fees and recruiting costs in the amount of approximately $596,000.
 
Amortization of Intangibles. Amortization expense was $118,000 and $662,000 in the three and nine months ended September 30, 2009, respectively, as compared to $352,000 and $1.1 million in the comparable periods in 2008, respectively. Amortization expense included in cost of revenue – consumer was $307,000 and $921,000 in the three and nine months ended September 30, 2009 and 2008, respectively. Amortization expense in 2009 and 2008 relates primarily to intangible assets as a result of our acquisitions of Kasamba in October 2007 and Proficient in July 2006. Amortization expense is expected to be approximately $2.0 million in the year ended December 31, 2009.
 
Other Income (Expense). Financial income was $75,000 in the three months ended September 30, 2009 and relates to favorable currency rate movements related to our Israeli operations. Financial expense was $123,000 in the three months ended September 30, 2008 and relates to unfavorable currency rate movements related to our Israeli operations. Financial expense was $21,000 and $125,000 in the nine months ended September 30, 2009 and 2008, respectively, and relates to unfavorable currency rate movements related to our Israeli operations.  Interest income was $15,000 and $71,000 in the three and nine months ended September 30, 2009, compared to $79,000 and $270,000 in the comparable periods in 2008, respectively, and consists of interest earned on cash and cash equivalents. These decreases are primarily attributable to decreases in short-term interest rates.
 
Provision for (Benefit from) Income Taxes.  Provision for income taxes was $1.5 million and $3.5 million in the three and nine months ended September 30, 2009. In the three months ended September 30, 2008, we recorded a provision for income taxes in the amount of $21,000. In the nine months ended September 30, 2008, we recorded a benefit from income taxes in the amount of $68,000.

 
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Net Income. We had net income of $2.3 million and $4.7 million in the three and nine months ended September 30, 2009, as compared to net income of $410,000 and $7,000 for the comparable periods in 2008. Revenue increased by $2.9 million and $7.7 million, respectively, while operating expenses decreased by $331,000 and $698,000, respectively, contributing to a net increase in income from operations of approximately $3.2 million and $8.4 million, respectively. We also had an increase in other income of $134,000 in the three months ended September 30, 2009 and a decrease in other income of $95,000 in the nine months ended September 30, 2009.
 
LIQUIDITY AND CAPITAL RESOURCES
 
As of September 30, 2009, we had approximately $36.5 million in cash and cash equivalents, an increase of approximately $11.0 million from December 31, 2008.
 
Net cash provided by operating activities was $12.8 million for the nine months ended September 30, 2009 and consisted primarily of non-cash expenses related to ASC 718-10, amortization of intangibles and depreciation, and to increases in accounts payable, accrued expenses and deferred revenue, partially offset by an increase in accounts receivable and prepaid expenses. Net cash provided by operating activities was $6.3 million for the nine months ended September 30, 2008 and consisted primarily of non-cash expenses related to the adoption of ASC 718-10, amortization of intangibles and depreciation and to increases in accounts payable and deferred revenue, partially offset by an increase in accounts receivable, a decrease in accrued expenses and an increase in prepaid expenses.
 
Net cash used in investing activities was $4.7 million and $5.6 million in the nine months ended September 30, 2009 and 2008, respectively, and was due primarily to the purchase of fixed assets.
 
Net cash provided by financing activities was $2.8 million for the nine months ended September 30, 2009 and consisted primarily of the excess tax benefit from exercise of employee stock options and the proceeds from the issuance of common stock in connection with the exercise of stock options by employees partially offset by the repurchase of common stock. Net cash used in financing activities was $3.0 million for the nine months ended September 30, 2008 and consisted primarily of the repurchase of common stock partially offset by the proceeds from the issuance of common stock in connection with the exercise of stock options by employees.
 
We have incurred significant costs 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. As of September 30, 2009, we had an accumulated deficit of approximately $112.5 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 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 nine months ended September 30, 2009 was approximately $1.3 million and $3.5 million, respectively, and approximately $682,000 and $1.9 million for the three and nine months ended September 30, 2008.
 
 
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As of September 30, 2009, our principal commitments were approximately $6.3 million under various operating leases, of which approximately $1.3 million is due in 2009. We do not currently expect that our principal commitments for the year ending December 31, 2009 will exceed $5.0 million in the aggregate. Our capital expenditures are not currently expected to exceed $9.0 million in 2009.
 
Our contractual obligations at September 30, 2009 are summarized as follows:
 
   
Payments due by period
 
   
(in thousands)
 
Contractual Obligations
 
Total
   
Less than 1
year
   
1-3 years
   
3-5 years
   
More than 5
years
 
Operating leases
  $ 6,323     $ 1,308     $ 5,015     $     $  
Total
  $ 6,323     $ 1,308     $ 5,015     $     $  

ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
 
Currency Rate Fluctuations
 
As a result of the expanding 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 year ended December 31, 2008, the depreciation of the U.S. dollar against the NIS had an increased adverse impact on our results of operations and financial condition compared to earlier periods because the U.S. dollar cost of expenses incurred in Israel increased. During the nine months ended September 30, 2009, the U.S dollar appreciated against the NIS to levels more consistent with the recent historical average which had a positive impact on our results of operations and financial conditions when compared to 2008. During the nine month period ended September 30, 2009, expenses generated by our Israeli operations totaled $17.1 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. 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 2009, we increased our allowance for doubtful accounts by $30,000 to approximately $370,000, principally due to an increase in accounts receivable as a result of increased sales and to the fact that a larger proportion of receivables are due from larger corporate clients that typically have longer payment cycles. During 2008, we increased our allowance for doubtful accounts by $148,000 to approximately $356,000, principally due to an increase in accounts receivable as a result of increased sales and to the fact that a larger proportion of receivables are due from larger corporate clients that typically have longer payment cycles and we wrote off approximately $16,000 of previously reserved accounts, leaving a net allowance for doubtful accounts of $340,000 at December 31, 2008.
 
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.

 
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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 September 30, 2009. Based on that evaluation, the Chief Executive Officer and Chief Financial Officer concluded that our disclosure controls and procedures were effective as of September 30, 2009 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 September 30, 2009 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 provide only 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, within a company have been detected.

 
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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 complaint filed by the Shareholders’ Representative sought certain documentation relating to calculation of the earn-out consideration, and demands payment of damages on the grounds that substantially all of the remaining contingently issuable earn-out shares should have been paid. We believe the claims are without merit, intend to vigorously defend against this lawsuit, and do not currently expect that the calculation of the total shares issued will differ significantly from the amount issued to date.
 
On May 15, 2009, we filed a complaint in the United States District Court for the Southern District of New York against InstantService, Inc. (“InstantService”) asserting claims that InstantService infringes the U.S. Patent Nos. 6,519,628 and 7,526,439 owned by us. We are seeking damages for infringement and an injunction against future infringement of our patents. On June 2, 2009, we filed a first amended complaint seeking a declaratory judgment that a patent purportedly owned by InstantService is invalid and not infringed by our products. InstantService has not answered the complaint and has not filed counterclaims, but did file a motion to dismiss one of four causes of action.  The case is in its early stages.  We believe our claims have merit and that InstantService’s motion to dismiss is without merit. We intend to vigorously pursue our claims.
 
We are not currently party to any other legal proceedings. From time to time, we may be subject to various claims and legal actions arising in the ordinary course of business.
 
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; competition in the real-time sales, marketing and customer service solutions market; risks related to adverse business conditions experienced by our clients; risks related to the operational integration of acquisitions; additional regulatory requirements, tax liabilities, or currency exchange rate fluctuations could impact our business; potential goodwill impairments; continued use by our clients of the LivePerson services and their purchase of additional services; responding to rapid technological change and changing client preferences; technology systems beyond our control and technology-related issues or defects that could disrupt or compromise the LivePerson services; the services provided to consumers via our technology platforms could result in legal liability and/or negative publicity; payment-related risks from credit and debit cards; risks related to the regulation or possible misappropriation of personal information; risks related to protecting our intellectual property rights or potential infringement of the intellectual property rights of third parties; our history of losses; our ability to license necessary third party software for use in our products and services or successfully integrate third party software; our dependence on key employees; competition for qualified personnel; the impact of new accounting rules; the possible unavailability of financing as and if needed; risks related to our international operations, particularly our operations in Israel, and the civil and political unrest in that region; and our dependence on the continued use of the Internet as a medium for commerce and the viability of the infrastructure of the Internet. 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, 2009.
 
There are no material changes to the risk factors described in the Form 10-K.

 
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ITEM 2. UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS
 
On March 5, 2009, our Board of Directors approved an extension of our existing stock repurchase program through March 31, 2010. The program, originally announced in February 2007 and first extended on March 10, 2008, was due to expire at the end of the first quarter of 2009.
 
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 $8.0 million. As of September 30, 2009, $3.9 million remained available for purchases under the program. Our Board of Directors may discontinue the program at any time.
 
The following table summarizes repurchases of our common stock under our stock repurchase program during the quarter ended September 30, 2009:
 
Period
 
Total Number of
Shares Purchased
   
Average Price Paid
per Share
   
Total Number of
Shares Purchased
as Part of Publicly
Announced Plans
or Programs
   
Approximate
Dollar
Value of Shares
that
May Yet Be
Purchased Under
the Plans or
Programs
 
7/1/2009 – 7/31/2009
        $           $ 3,946,000  
8/1/2009 – 8/31/2009
                      3,946,000  
9/1/2009 – 9/30/2009
                      3,946,000  
Total
        $           $ 3,946,000  
 
ITEM 5. OTHER INFORMATION
 
Employment Letter for James J. Dicso
 
James J. Dicso, our Senior Vice President, Enterprise Sales and Service, entered into a letter agreement with us dated November 6, 2009, setting forth certain terms and conditions of his continued employment.  This agreement supersedes Mr. Dicso’s November 3, 2004 offer letter.  The letter sets forth Mr. Dicso’s current compensation consisting of an annualized base salary of $250,000, as well as either annual incentive compensation or an annual discretionary retention and performance bonus as determined by the Company.  Mr. Dicso is entitled to such benefits as are available to other employees (subject to any eligibility criteria) and is entitled to three weeks of paid vacation.
 
If Mr. Dicso’s employment is terminated by us without cause other than during the 12-month period following a change of control (as such terms are defined in his agreement), subject to Mr. Dicso signing a release of claims agreement acceptable to the Company, he is entitled to receive (i) 6 months of his then-current base salary as severance pay, (ii) to the extent he was eligible and not already paid, the incentive compensation or discretionary bonus he would have received for the prior fiscal year had he remained employed on the date such incentive compensation or bonus was distributed, (iii) to the extent he is eligible to receive incentive compensation or a discretionary bonus in the fiscal year in which his employment is terminated, a pro-rated amount of the incentive compensation or target bonus he would have received such year (or, if such incentive compensation or bonus amount has not yet been determined, a pro-rated amount of the incentive compensation or discretionary bonus, as applicable, he received the prior fiscal year), and (iv) 6 months of COBRA reimbursement for the percentage of the coverage premium that we pay on behalf of similarly situated employees receiving the same type of coverage.
 
If Mr. Dicso’s employment is terminated due to death or disability (as defined in his agreement), he is entitled to receive subject to signing a release of claims agreement acceptable to the Company:  (i) to the extent he was eligible and not already paid, the incentive compensation or discretionary bonus he would have received for the prior fiscal year had he remained employed, payable on the date such incentive compensation or bonus was distributed, and (ii) to the extent he was eligible to receive incentive compensation or a discretionary bonus in the fiscal year in which his employment was terminated due to death or disability, a pro-rated amount of the incentive compensation or discretionary bonus, as applicable, he received the prior fiscal year for the amount of time actually served prior to termination, or such other bonus amount as may be determined by the Board of Directors.
 
If there is a change of control of the Company and, within 12 months following such change of control, Mr. Dicso is terminated by us without cause or he resigns for good reason (as such terms are defined in his agreement), subject to Mr. Dicso signing a release of claims agreement acceptable to the company: (i) he is entitled to receive (a) 9 months of his then-current base salary as severance pay, (b) to the extent he was eligible and not already paid, the incentive compensation or discretionary bonus he would have received for the prior fiscal year had he remained employed on the date such incentive compensation or bonus was distributed, (c) to the extent he is eligible to receive incentive compensation or a discretionary bonus in the fiscal year in which his employment is terminated, a pro-rated amount of the incentive compensation or bonus he would have received such year (or, if such incentive compensation or bonus has not yet been determined, a pro-rated amount of the incentive compensation or discretionary bonus, as applicable, he received the prior fiscal year) for the amount of time actually served prior to termination, and (d) 9 months of COBRA reimbursement for the percentage of the coverage premium that we pay on behalf of similarly situated employees receiving the same type of coverage; and (ii) all option and other equity awards that would have vested during the 24-month period following his termination date will become immediately vested and will remain exercisable for 12 months following his termination date.
 
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Employment Letter for Kevin T. Kohn
 
Kevin T. Kohn, our Executive Vice President of Marketing, entered into a letter agreement with us dated November 6, 2009, setting forth certain terms and conditions of his continued employment.  This agreement supersedes Mr. Kohn’s August 27, 2004 offer letter.  The letter agreement sets forth Mr. Kohn’s current compensation consisting of an annualized base salary of $220,500, as well as a discretionary annual retention and performance bonus.  Mr. Kohn is entitled to such benefits as are available to other employees (subject to any eligibility criteria) and is entitled to three weeks of paid vacation.
 
If Mr. Kohn’s employment is terminated by us without cause other than during the 12-month period following a change of control (as such terms are defined in his agreement), subject to Mr. Kohn signing a release of claims agreement acceptable to the Company, he is entitled to receive (i) 6 months of his then-current base salary as severance pay, (ii) to the extent it has not already been paid, the discretionary bonus he would have received for the prior fiscal year had he remained employed on the date such bonus was distributed, (iii) a pro-rated amount of the discretionary bonus he would have received for the fiscal year in which his employment is terminated (or, if such bonus has not yet been determined, a pro-rated amount of the discretionary bonus he received the prior fiscal year) for the amount of time actually served prior to termination, and (iv) 6 months of COBRA reimbursement for the percentage of the coverage premium that we pay on behalf of similarly situated employees receiving the same type of coverage.
 
If Mr. Kohn’s employment is terminated due to death or disability (as defined in his agreement), he is entitled to receive, subject to signing a release of claims agreement acceptable to the Company:  (i) to the extent he was eligible and not already paid, the discretionary bonus he would have received for the prior fiscal year had he remained employed on the date such bonus was distributed, and (ii) to the extent he was eligible to receive a discretionary bonus in the fiscal year in which his employment was terminated due to death or disability, a pro-rated amount of the discretionary bonus he received the prior fiscal year for the amount of time actually served prior to termination, or such other bonus amount as may be determined by the Board of Directors.
 
If there is a change of control of the Company and, within 12 months following such change of control, Mr. Kohn is terminated by us without cause or he resigns for good reason (as such terms are defined in his agreement), subject to Mr. Kohn signing a release of claims agreement acceptable to the Company: (i) he is entitled to receive (a) 6 months of his then-current base salary as severance pay, (b) to the extent it has not already been paid, the discretionary bonus he would have received for the prior fiscal year had he remained employed on the date such bonus was distributed, (c) a pro-rated amount of the discretionary bonus he would have received for the fiscal year in which his employment is terminated (or, if such bonus has not yet been determined, a pro-rated amount of the discretionary bonus he received the prior fiscal year) for the amount of time actually served prior to termination, and (d) 6 months of COBRA reimbursement for the percentage of the coverage premium that we pay on behalf of similarly situated employees receiving the same type of coverage; and (ii) all option and other equity awards that would have vested during the 12-month period following his termination date will become immediately vested and will remain exercisable for 12 months following his termination date.
 
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
 
 
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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: November 9, 2009
By:
/s/ ROBERT P. LOCASCIO
 
Name: 
Robert P. LoCascio
 
Title:
Chief Executive Officer (duly authorized officer)
     
Date: November 9, 2009
By:
/s/ TIMOTHY E. BIXBY
 
Name: 
Timothy E. Bixby
 
Title:
President and 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