LIVEPERSON, INC.
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(Exact Name of Registrant as Specified in Its Charter)
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Delaware
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13-3861628
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(State or Other Jurisdiction of
Incorporation or Organization)
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(IRS Employer Identification No.)
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475 Tenth Avenue, 5th Floor
New York, New York
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10018
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(Address of Principal Executive Offices)
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(Zip Code)
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(212) 609-4200
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(Registrant’s Telephone Number, Including Area Code)
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Large accelerated filer
¨
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Accelerated filer
ý
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Non-accelerated filer
¨
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Smaller reporting company
¨
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(Do not check if a smaller reporting company)
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LIVEPERSON, INC.
March 31, 2014
FORM 10-Q
INDEX
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PAGE
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Part I.
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Financial Information
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Item 1.
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Financial Statements
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Condensed Consolidated Balance Sheets as of March 31, 2014 (unaudited) and December 31, 2013
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Unaudited Condensed Consolidated Statements of Operations for the Three Months Ended March 31, 2014 and 2013
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Unaudited Condensed Consolidated Statements of Comprehensive Loss for the Three Months Ended March 31, 2014 and 2013
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Unaudited Condensed Consolidated Statements of Cash Flows for the Three Months Ended March 31, 2014 and 2013
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Notes to Condensed Consolidated Financial Statements (Unaudited)
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Item 2.
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Management’s Discussion and Analysis of Financial Condition and Results of Operations
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Item 3.
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Quantitative and Qualitative Disclosures about Market Risk
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Item 4.
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Controls and Procedures
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Part II.
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Other Information
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Item 1.
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Legal Proceedings
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Item 1A.
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Risk Factors
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Item 2.
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Unregistered Sales of Equity Securities and Use of Proceeds
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Item 3.
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Defaults Upon Senior Securities
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Item 4.
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Mine Safety Disclosures
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Item 5.
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Other Information
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Item 6.
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Exhibits
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Signatures
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37
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LIVEPERSON, INC.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)
(UNAUDITED)
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||||||||
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Three Months Ended
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||||||
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March 31,
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||||||
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2014
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2013
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||||
Revenue
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$
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47,828
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$
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42,496
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Costs and expenses
(1) (2)
:
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Cost of revenue
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11,735
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10,134
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Sales and marketing
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18,395
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14,478
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General and administrative
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9,499
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10,238
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Product development
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8,951
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8,021
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Amortization of purchased intangibles
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190
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224
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Total costs and expenses
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48,770
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43,095
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Loss from operations
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(942
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)
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(599
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)
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Other (expense) income
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(83
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)
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34
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Loss before benefit from income taxes
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(1,025
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)
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(565
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)
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Benefit from income taxes
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(231
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)
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(333
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)
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Net loss
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$
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(794
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)
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$
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(232
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)
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||||
Net loss per share of common stock:
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||||
Basic
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$
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(0.01
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)
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$
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0.00
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Diluted
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$
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(0.01
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)
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$
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0.00
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||||
Weighted-average shares used to compute net loss per share:
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|||||
Basic
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54,666,535
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55,864,045
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Diluted
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54,666,535
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55,864,045
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||||
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||||
(1)
Amounts include stock compensation expense, as follows:
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Cost of revenue
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$
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360
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$
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420
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Sales and marketing
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814
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746
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General and administrative
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843
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1,015
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Product development
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680
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870
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(2)
Amounts include depreciation expense, as follows:
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|||||
Cost of revenue
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$
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1,397
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$
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1,580
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Sales and marketing
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207
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22
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General and administrative
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200
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262
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Product development
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177
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186
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LIVEPERSON, INC.
CONDENSED CONSOLIDATED STATEMENTS OF COMPREHENSIVE LOSS
(IN THOUSANDS)
(UNAUDITED)
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|||||||
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Three Months Ended
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||||||
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March 31,
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||||||
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2014
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2013
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||||
Net loss
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$
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(794
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)
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$
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(232
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)
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Foreign currency translation adjustment
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140
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40
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Comprehensive loss
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$
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(654
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)
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$
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(192
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)
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1.
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Description of Business and Basis of Presentation
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2.
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Revenue Recognition
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3.
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Net Loss Per Share
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Three Months Ended
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||||
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March 31,
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||||
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2014
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2013
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Basic
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54,666,535
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55,864,045
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Effect of assumed exercised options
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—
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—
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Diluted
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54,666,535
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55,864,045
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4.
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Segment Information
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Business
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Consumer
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Corporate
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Consolidated
|
||||||||
Revenue:
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Hosted services – Business
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$
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39,680
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$
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—
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$
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—
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$
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39,680
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Hosted services – Consumer
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—
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3,910
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—
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3,910
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||||
Professional services
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4,238
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—
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—
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4,238
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||||
Total revenue
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43,918
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3,910
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—
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47,828
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||||
Cost of revenue
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11,220
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|
515
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|
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—
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11,735
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|
||||
Sales and marketing
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16,918
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1,477
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—
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18,395
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||||
Amortization of purchased intangibles
|
190
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—
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—
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190
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||||
Unallocated corporate expenses
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—
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—
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18,450
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18,450
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||||
Operating income (loss)
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$
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15,590
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$
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1,918
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|
|
$
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(18,450
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)
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|
$
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(942
|
)
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Business
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Consumer
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Corporate
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Consolidated
|
||||||||
Revenue:
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||||||||
Hosted services – Business
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$
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36,144
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$
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—
|
|
|
$
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—
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$
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36,144
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Hosted services – Consumer
|
—
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|
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3,620
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—
|
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3,620
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|
||||
Professional services
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2,732
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—
|
|
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—
|
|
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2,732
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|
||||
Total revenue
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38,876
|
|
|
3,620
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|
|
—
|
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42,496
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|
||||
Cost of revenue
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9,536
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|
598
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|
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—
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|
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10,134
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|
||||
Sales and marketing
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13,206
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|
|
1,272
|
|
|
—
|
|
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14,478
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|
||||
Amortization of purchased intangibles
|
224
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|
|
—
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|
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—
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224
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|
||||
Unallocated corporate expenses
|
—
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|
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—
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|
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18,259
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18,259
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|
||||
Operating income (loss)
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$
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15,910
|
|
|
$
|
1,750
|
|
|
$
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(18,259
|
)
|
|
$
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(599
|
)
|
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Three Months Ended
|
||||||
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March 31,
|
||||||
|
2014
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|
2013
|
||||
United States
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$
|
31,098
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|
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$
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28,639
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Other Americas
(1)
|
2,150
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|
|
1,967
|
|
||
Total Americas
|
33,248
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|
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30,606
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EMEA
(2)
|
10,515
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|
|
7,921
|
|
||
APAC
(3)
|
4,065
|
|
|
3,969
|
|
||
Total revenue
|
$
|
47,828
|
|
|
$
|
42,496
|
|
|
March 31,
|
|
December 31,
|
||||
|
2014
|
|
2013
|
||||
United States
|
$
|
38,757
|
|
|
$
|
34,422
|
|
Israel
|
21,332
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|
|
22,580
|
|
||
Australia
|
9,317
|
|
|
9,827
|
|
||
Netherlands
|
3,628
|
|
|
3,540
|
|
||
United Kingdom
|
1,550
|
|
|
1,539
|
|
||
Total long-lived assets
|
$
|
74,584
|
|
|
$
|
71,908
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|
5.
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Goodwill and Intangible Assets
|
|
Business
|
|
Consumer
|
|
Total
|
||||||
Balance as of December 31, 2013
|
$
|
24,700
|
|
|
$
|
8,024
|
|
|
$
|
32,724
|
|
Adjustments to goodwill:
|
|
|
|
|
|
||||||
NexGraph acquisition
|
400
|
|
|
—
|
|
|
400
|
|
|||
Balance as of March 31, 2014
|
$
|
25,100
|
|
|
$
|
8,024
|
|
|
$
|
33,124
|
|
|
Business
|
|
Consumer
|
|
Total
|
||||||
Balance as of December 31, 2012
|
$
|
24,621
|
|
|
$
|
8,024
|
|
|
$
|
32,645
|
|
Adjustments to goodwill:
|
|
|
|
|
|
||||||
Adjustments to Engage acquisition
|
79
|
|
|
—
|
|
|
79
|
|
|||
Balance as of December 31, 2013
|
$
|
24,700
|
|
|
$
|
8,024
|
|
|
$
|
32,724
|
|
|
As of March 31, 2014
|
||||||||||||
|
Gross
Carrying
Amount
|
|
Accumulated
Amortization
|
|
Net Carrying Amount
|
|
Weighted
Average
Amortization
Period
|
||||||
Amortizing intangible assets:
|
|
|
|
|
|
|
|
||||||
Technology
|
$
|
18,533
|
|
|
$
|
(8,547
|
)
|
|
$
|
9,986
|
|
|
3.8 years
|
Customer relationships
|
5,061
|
|
|
(3,314
|
)
|
|
1,747
|
|
|
3.5 years
|
|||
Trade names
|
725
|
|
|
(725
|
)
|
|
—
|
|
|
2.7 years
|
|||
Non-compete agreements
|
586
|
|
|
(494
|
)
|
|
92
|
|
|
1.2 years
|
|||
Patents
|
475
|
|
|
(200
|
)
|
|
275
|
|
|
11.0 years
|
|||
Other
|
285
|
|
|
(255
|
)
|
|
30
|
|
|
3.0 years
|
|||
Total
|
$
|
25,665
|
|
|
$
|
(13,535
|
)
|
|
$
|
12,130
|
|
|
|
|
As of December 31, 2013
|
||||||||||||
|
Gross
Carrying
Amount
|
|
Accumulated
Amortization
|
|
Net Carrying Amount
|
|
Weighted
Average
Amortization
Period
|
||||||
Amortizing intangible assets:
|
|
|
|
|
|
|
|
||||||
Technology
|
$
|
18,533
|
|
|
$
|
(7,678
|
)
|
|
$
|
10,855
|
|
|
3.8 years
|
Customer relationships
|
5,061
|
|
|
(3,148
|
)
|
|
1,913
|
|
|
3.5 years
|
|||
Trade names
|
725
|
|
|
(725
|
)
|
|
—
|
|
|
2.7 years
|
|||
Non-compete agreements
|
486
|
|
|
(486
|
)
|
|
—
|
|
|
1.2 years
|
|||
Patents
|
475
|
|
|
(189
|
)
|
|
286
|
|
|
11.0 years
|
|||
Other
|
285
|
|
|
(251
|
)
|
|
34
|
|
|
3.0 years
|
|||
Total
|
$
|
25,565
|
|
|
$
|
(12,477
|
)
|
|
$
|
13,088
|
|
|
|
6.
|
Property and Equipment
|
|
March 31,
2014 |
|
December 31,
2013 |
||||
Computer equipment and software
|
$
|
47,422
|
|
|
$
|
45,790
|
|
Furniture, equipment and building improvements
|
8,118
|
|
|
7,906
|
|
||
|
55,540
|
|
|
53,696
|
|
||
Less: accumulated depreciation
|
(38,059
|
)
|
|
(36,078
|
)
|
||
Total
|
$
|
17,481
|
|
|
$
|
17,618
|
|
7.
|
Accrued Liabilities
|
|
March 31,
2014 |
|
December 31,
2013 |
||||
Payroll and other employee related costs
|
$
|
8,420
|
|
|
$
|
13,090
|
|
Professional services and consulting and other vendor fees
|
6,691
|
|
|
6,769
|
|
||
Sales commissions
|
1,502
|
|
|
1,778
|
|
||
Contingent earnout (Note 8)
|
1,620
|
|
|
1,660
|
|
||
Other
|
2,242
|
|
|
2,122
|
|
||
Total
|
$
|
20,475
|
|
|
$
|
25,419
|
|
8.
|
Acquisitions
|
Intangible assets (technology)
|
$
|
767
|
|
Goodwill
|
2,405
|
|
|
|
3,172
|
|
|
Deferred tax liability
|
(288
|
)
|
|
Total purchase price consideration
|
$
|
2,884
|
|
Cash
|
$
|
386
|
|
Accounts receivable
|
3,454
|
|
|
Other current assets
|
57
|
|
|
Property and equipment
|
432
|
|
|
Other assets
|
104
|
|
|
Intangible assets
|
3,600
|
|
|
Goodwill
|
6,152
|
|
|
|
14,185
|
|
|
Liabilities assumed
|
(2,632
|
)
|
|
Deferred tax liability
|
(962
|
)
|
|
Total purchase price consideration
|
$
|
10,591
|
|
|
Weighted
Average Useful
Life (Months)
|
|
Amount
|
||
Technology
|
36
|
|
$
|
768
|
|
Trade-name
|
12
|
|
95
|
|
|
Customer relationships
|
48
|
|
2,661
|
|
|
Non-compete agreements
|
12
|
|
76
|
|
|
|
|
|
$
|
3,600
|
|
9.
|
Fair Value Measurements
|
•
|
Level 1: Observable inputs that reflect quoted prices (unadjusted) for identical assets or liabilities in active markets.
|
•
|
Level 2: Inputs reflect: quoted prices for identical assets or liabilities in markets that are not active; quoted prices for similar assets or liabilities in active markets; inputs other than quoted prices that are observable for the assets or liabilities; or inputs that are derived principally from or corroborated by observable market data by correlation or other means.
|
•
|
Level 3: Unobservable inputs reflecting the Company’s assumptions incorporated in valuation techniques used to determine fair value. These assumptions are required to be consistent with market participant assumptions that are reasonably available.
|
|
March 31, 2014
|
|
December 31, 2013
|
||||||||||||||||||||||||||||
|
Level 1
|
|
Level 2
|
|
Level 3
|
|
Total
|
|
Level 1
|
|
Level 2
|
|
Level 3
|
|
Total
|
||||||||||||||||
Assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||
Cash equivalents:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||
Money market funds
|
$
|
9,000
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
9,000
|
|
|
$
|
13,674
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
13,674
|
|
Total assets
|
$
|
9,000
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
9,000
|
|
|
$
|
13,674
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
13,674
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||
Liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||
Contingent earn-out
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
1,620
|
|
|
$
|
1,620
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
1,660
|
|
|
$
|
1,660
|
|
Total liabilities
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
1,620
|
|
|
$
|
1,620
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
1,660
|
|
|
$
|
1,660
|
|
10.
|
Investments
|
11.
|
Commitments and Contingencies
|
12.
|
Stockholders' Equity
|
|
Three Months Ended
|
||||||
|
March 31,
|
||||||
|
2014
|
|
2013
|
||||
Cost of revenue
|
$
|
360
|
|
|
$
|
420
|
|
Sales and marketing expense
|
814
|
|
|
746
|
|
||
Product development expense
|
680
|
|
|
870
|
|
||
General and administrative expense
|
843
|
|
|
1,015
|
|
||
Total stock based compensation included in costs and expenses
|
$
|
2,697
|
|
|
$
|
3,051
|
|
|
Three Months Ended
|
||
|
March 31,
|
||
|
2014
|
|
2013
|
Dividend yield
|
0.0%
|
|
0.0%
|
Risk-free interest rate
|
1.5%
|
|
0.9%
|
Expected life (in years)
|
5
|
|
5
|
Historical volatility
|
53.7%
|
|
58.7%
|
|
Options
|
|
Weighted
Average
Exercise Price
|
|||
Options outstanding at December 31, 2013
|
9,724,193
|
|
|
$
|
10.86
|
|
Options granted
|
563,500
|
|
|
13.22
|
|
|
Options exercised
|
(222,083
|
)
|
|
9.17
|
|
|
Options cancelled
|
(387,028
|
)
|
|
14.25
|
|
|
Options outstanding at March 31, 2014
|
9,678,582
|
|
|
10.90
|
|
|
Options exercisable at March 31, 2014
|
4,205,765
|
|
|
$
|
8.94
|
|
|
Options
|
|
Weighted
Average Grant- Date Fair Value |
|||
Nonvested Shares at December 31, 2013
|
5,633,701
|
|
|
$
|
6.90
|
|
Granted
|
563,500
|
|
|
6.25
|
|
|
Vested
|
(337,356
|
)
|
|
5.83
|
|
|
Cancelled
|
(387,028
|
)
|
|
7.23
|
|
|
Nonvested Shares at March 31, 2014
|
5,472,817
|
|
|
$
|
6.28
|
|
13.
|
Legal Matters
|
•
|
Expanding Business with Existing Customers and Adding New Customers.
We are expanding our sales capacity by adding enterprise and midmarket sales agents. We have also expanded our efforts to retain existing SMB customers through increased interaction with them during the early stages of their usage of our services.
|
•
|
Introducing New Products and Capabilities.
We are investing in product marketing, research and development and executive personnel to support our expanding efforts to build and launch new products and capabilities to support existing customer deployments, and to further penetrate our total addressable market. These investments are initially focused in the areas of online marketing engagement and chat transcript text analysis. Over time, we expect to develop and launch additional capabilities that leverage our existing market position as a leader in proactive, intelligence-driven online engagement.
|
•
|
Expanding our International Presence.
We continue to increase our investment in sales and support personnel in the United Kingdom, Asia-Pacific, Latin America and Western Europe, particularly France and Germany. We are also working with sales and support partners as we expand our investment in the Asia-Pacific region. We continue to improve the multi-language and translation capabilities within our hosted solutions to further support international expansion.
|
•
|
Total revenue increased
13%
to
$47.8 million
from
$42.5 million
.
|
•
|
Revenue from our Business segment increased
13%
to
$43.9 million
from
$38.9 million
.
|
•
|
Gross profit margin decreased to 75.5% from 76.2%.
|
•
|
Cost and expenses increased 13% to
$48.8 million
from
$43.1 million
.
|
•
|
Net loss increased to
$0.8 million
from net loss of
$0.2 million
.
|
•
|
Bookings increased 20% to $9.0 million in the
three months ended
March 31, 2014
from $7.5 million in the comparable periods in
2013
. We include in our bookings metrics new contractual commitments from either new or existing midmarket and/or enterprise customers for recurring subscription based fees, but exclude from such amounts non-recurring fees such as one time implementation costs or one time consulting fees. The bookings metric generally does not include or represent usage based and/or pay-for-performance based contracts, month-
|
•
|
Average deal size for new bookings in the
three months ended
March 31, 2014
was $82,000 with average deal size for new customers of $139,000 and average deal size for existing customers requesting additional products or expanded access to current products of $65,000. Average deal size for new bookings in the
three months ended
March 31, 2013
was $50,500 with average deal size for new customers of $51,000 and average deal size for existing customers requesting additional products or expanded access to current products of $50,300. Similar to our bookings metric, average deal size generally represents new contractual arrangements with committed subscription or base fees from new or existing mid-market or enterprise customers, and does not capture usage and/or pay-for-performance based contracts or fees. Management uses average deal size, being a subset of bookings, as a relevant metric in providing management with insight into certain recent activity in our business.
|
•
|
although depreciation and amortization are non-cash charges, the assets being depreciated and amortized may have to be replaced in the future, and adjusted EBITDA does not reflect cash capital expenditure requirements for such replacements or for new capital expenditure requirements;
|
•
|
adjusted EBITDA does not reflect changes in, or cash requirements for, our working capital needs;
|
•
|
adjusted EBITDA does not consider the potentially dilutive impact of equity-based compensation;
|
•
|
adjusted EBITDA does not reflect tax payments that may represent a reduction in cash available to us; and
|
•
|
other companies, including companies in our industry, may calculate adjusted EBITDA differently, which reduces its usefulness as a comparative measure.
|
|
Three Months Ended
|
||||||
|
March 31,
|
||||||
|
2014
|
|
2013
|
||||
Reconciliation of Adjusted EBITDA
|
|
|
|
||||
Net loss
|
$
|
(794
|
)
|
|
$
|
(232
|
)
|
Amortization of purchased intangibles
|
1,058
|
|
|
418
|
|
||
Stock-based compensation
|
2,697
|
|
|
3,051
|
|
||
Depreciation
|
1,981
|
|
|
2,050
|
|
||
Benefit from income taxes
|
(231
|
)
|
|
(333
|
)
|
||
Other expense (income)
|
83
|
|
|
(34
|
)
|
||
Adjusted EBITDA
|
$
|
4,794
|
|
|
$
|
4,920
|
|
•
|
although amortization are non-cash charges, the assets being amortized may have to be replaced in the future, and adjusted net income does not reflect cash capital expenditure requirements for such replacements or for new capital expenditure requirements;
|
•
|
adjusted net income does not consider the potentially dilutive impact of equity-based compensation;
|
•
|
other companies, including companies in our industry, may calculate adjusted net income differently, which reduces its usefulness as a comparative measure.
|
|
Three Months Ended
|
||||||
|
March 31,
|
||||||
|
2014
|
|
2013
|
||||
Reconciliation of Adjusted Net Income
|
|
|
|
||||
Net loss
|
$
|
(794
|
)
|
|
$
|
(232
|
)
|
Amortization of purchased intangibles
|
1,058
|
|
|
418
|
|
||
Stock-based compensation
|
2,697
|
|
|
3,051
|
|
||
Adjusted net income
|
$
|
2,961
|
|
|
$
|
3,237
|
|
•
|
compensation costs relating to employees who provide customer support and implementation services to our customers;
|
•
|
compensation costs relating to our network support staff;
|
•
|
depreciation of certain hardware and software;
|
•
|
allocated occupancy costs and related overhead;
|
•
|
the cost of supporting our infrastructure, including expenses related to server leases, infrastructure support costs and Internet connectivity;
|
•
|
the credit card fees and related payment processing costs associated with the consumer and SMB services; and
|
•
|
amortization of certain intangibles.
|
|
Three Months Ended
|
||||||
|
March 31,
|
||||||
|
2014
|
|
2013
|
||||
|
(in thousands)
|
||||||
Stock-based compensation expense related to ASC 718-10
|
$
|
2,697
|
|
|
$
|
3,051
|
|
|
Three Months Ended
|
|||||||||
|
March 31,
|
|||||||||
|
2014
|
|
2013
|
|
% Change
|
|||||
|
(in thousands)
|
|
|
|||||||
Revenue by Segment:
|
|
|
|
|
|
|||||
Business
|
$
|
43,918
|
|
|
$
|
38,876
|
|
|
13
|
%
|
Consumer
|
3,910
|
|
|
3,620
|
|
|
8
|
%
|
||
Total
|
$
|
47,828
|
|
|
$
|
42,496
|
|
|
13
|
%
|
|
Three Months Ended
|
|||||||||
|
March 31,
|
|||||||||
|
2014
|
|
2013
|
|
% Change
|
|||||
|
($ in thousands)
|
|
|
|||||||
Cost of revenue - business
|
$
|
11,220
|
|
|
$
|
9,536
|
|
|
18
|
%
|
Percentage of total revenue
|
23
|
%
|
|
22
|
%
|
|
|
|||
Headcount (at period end):
|
218
|
|
|
243
|
|
|
(10
|
)%
|
|
Three Months Ended
|
|||||||||
|
March 31,
|
|||||||||
|
2014
|
|
2013
|
|
% Change
|
|||||
|
($ in thousands)
|
|
|
|||||||
Cost of revenue - consumer
|
$
|
515
|
|
|
$
|
598
|
|
|
(14
|
)%
|
Percentage of total revenue
|
1
|
%
|
|
1
|
%
|
|
|
|||
Headcount (at period end)
|
12
|
|
|
16
|
|
|
(25
|
)%
|
|
Three Months Ended
|
|||||||||
|
March 31,
|
|||||||||
|
2014
|
|
2013
|
|
% Change
|
|||||
|
($ in thousands)
|
|
|
|||||||
Product development
|
$
|
8,951
|
|
|
$
|
8,021
|
|
|
12
|
%
|
Percentage of total revenue
|
19
|
%
|
|
19
|
%
|
|
|
|||
Headcount (at period end):
|
201
|
|
|
209
|
|
|
(4
|
)%
|
|
Three Months Ended
|
|||||||||
|
March 31,
|
|||||||||
|
2014
|
|
2013
|
|
% Change
|
|||||
|
($ in thousands)
|
|
|
|||||||
Sales and marketing - business
|
$
|
16,918
|
|
|
$
|
13,206
|
|
|
28
|
%
|
Percentage of total revenue
|
35
|
%
|
|
31
|
%
|
|
|
|||
Headcount (at period end):
|
275
|
|
|
239
|
|
|
15
|
%
|
|
Three Months Ended
|
|||||||||
|
March 31,
|
|||||||||
|
2014
|
|
2013
|
|
% Change
|
|||||
|
($ in thousands)
|
|
|
|||||||
Sales and marketing - consumer
|
$
|
1,477
|
|
|
$
|
1,272
|
|
|
16
|
%
|
Percentage of total revenue
|
3
|
%
|
|
3
|
%
|
|
|
|||
Headcount (at period end):
|
5
|
|
|
5
|
|
|
—
|
%
|
|
Three Months Ended
|
|||||||||
|
March 31,
|
|||||||||
|
2014
|
|
2013
|
|
% Change
|
|||||
|
($ in thousands)
|
|
|
|||||||
General and administrative
|
$
|
9,499
|
|
|
$
|
10,238
|
|
|
(7
|
)%
|
Percentage of total revenue
|
20
|
%
|
|
24
|
%
|
|
|
|||
Headcount (at period end):
|
93
|
|
|
83
|
|
|
12
|
%
|
|
Three Months Ended
|
|||||||||
|
March 31,
|
|||||||||
|
2014
|
|
2013
|
|
% Change
|
|||||
|
($ in thousands)
|
|
|
|||||||
Amortization of purchased intangibles
|
$
|
190
|
|
|
$
|
224
|
|
|
(15
|
)%
|
Percentage of total revenues
|
—
|
%
|
|
1
|
%
|
|
|
|
Three Months Ended
|
|||||||||
|
March 31,
|
|||||||||
|
2014
|
|
2013
|
|
% Change
|
|||||
|
($ in thousands)
|
|
|
|||||||
Other (expense) income
|
$
|
(83
|
)
|
|
$
|
34
|
|
|
(344
|
)%
|
|
Three Months Ended
|
|||||||||
|
March 31,
|
|||||||||
|
2014
|
|
2013
|
|
% Change
|
|||||
|
($ in thousands)
|
|
|
|||||||
Benefit from income taxes
|
$
|
(231
|
)
|
|
$
|
(333
|
)
|
|
(31
|
)%
|
|
Three Months Ended
|
||||||
|
March 31,
|
||||||
|
2014
|
|
2013
|
||||
|
(in thousands)
|
||||||
Consolidated Statements of Cash Flows Data:
|
|
|
|
||||
Cash flows used in operating activities
|
$
|
(2,999
|
)
|
|
$
|
(656
|
)
|
Cash flows used in investing activities
|
(4,755
|
)
|
|
(1,714
|
)
|
||
Cash flows used in financing activities
|
(4,863
|
)
|
|
(6,081
|
)
|
|
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
|
$
|
29,919
|
|
|
$
|
6,633
|
|
|
$
|
17,491
|
|
|
$
|
5,391
|
|
|
$
|
404
|
|
Total
|
$
|
29,919
|
|
|
$
|
6,633
|
|
|
$
|
17,491
|
|
|
$
|
5,391
|
|
|
$
|
404
|
|
Period
|
|
Total Number of
Shares Purchased
(1) (2)
|
|
Average Price Paid per
Share
(1) (2)
|
|
Total Number of
Shares Purchased
as Part of Publicly
Announced Plans or
Programs
(1) (2)
|
|
Approximate Dollar
Value of Shares that
May Yet Be
Purchased Under
the Plans or
Programs
(1) (2) (3)
|
||||||
1/1/2014 – 1/31/2014
|
|
—
|
|
|
$
|
—
|
|
|
—
|
|
|
$
|
3,284,387
|
|
2/1/2014 – 2/28/2014
|
|
—
|
|
|
—
|
|
|
—
|
|
|
3,284,387
|
|
||
3/1/2014 – 3/31/2014
(2)
|
|
650,789
|
|
|
12.05
|
|
|
650,789
|
|
|
5,443,321
|
|
||
Total
|
|
650,789
|
|
|
$
|
12.05
|
|
|
650,789
|
|
|
$
|
5,443,321
|
|
(1)
|
On December 10, 2012, the Company announced that its Board of Directors approved a share repurchase program through June 30, 2014. Under the stock repurchase program, the Company is authorized to repurchase shares of the Company's common stock, in the open market or privately negotiated transactions, at times and prices considered appropriate by the Board of Directors depending upon prevailing market conditions and other corporate considerations.
|
(2)
|
On March 13, 2014, the Company's Board of Directors increased the aggregate purchase price of the stock repurchase program from $30.0 million to $40.0 million. As of
March 31, 2014
, approximately $5.4 million remained available for purchases under the program.
|
(3)
|
Transaction fees related to the share purchases are deducted from the total remaining allowable expenditure amount.
|
10.1*
|
|
Separation Agreement and General Release between LivePerson and Eli Campo, dated as of December 16, 2013.
|
|
|
|
10.2*
|
|
Employment Agreement between LivePerson and Eran Vanounou, dated as of February 22, 2014
|
|
|
|
31.1
|
|
Certification by Chief Executive Officer pursuant to Exchange Act Rule 13a-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
|
|
|
|
31.2
|
|
Certification by Chief Financial Officer pursuant to Exchange Act Rule 13a-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
|
|
|
|
32.1**
|
|
Certification by Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
|
|
|
|
32.2**
|
|
Certification by Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
|
|
|
|
101.INS†
|
|
XBRL Instance Document
|
|
|
|
101.SCH†
|
|
XBRL Taxonomy Extension Schema Document
|
|
|
|
101.CAL†
|
|
XBRL Taxonomy Extension Calculation Linkbase Document
|
|
|
|
101.DEF†
|
|
XBRL Taxonomy Extension Definition Linkbase Document
|
|
|
|
101.LAB†
|
|
XBRL Taxonomy Extension Label Linkbase Document
|
|
|
|
101.PRE†
|
|
XBRL Taxonomy Extension Presentation Linkbase Document
|
|
|
LIVEPERSON, INC.
|
|
|
|
(Registrant)
|
|
|
|
|
|
Date:
|
May 9, 2014
|
By:
|
/s/ ROBERT P. LOCASCIO
|
|
|
Name:
|
Robert P. LoCascio
|
|
|
Title:
|
Chief Executive Officer (principal executive officer)
|
|
|
|
|
Date:
|
May 9, 2014
|
By:
|
/s/ DANIEL R. MURPHY
|
|
|
Name:
|
Daniel R. Murphy
|
|
|
Title:
|
Chief Financial Officer (principal financial and accounting officer)
|
EXHIBIT
|
|
|
|
|
|
10.1*
|
|
Separation Agreement and General Release between LivePerson and Eli Campo, dated as of December 16, 2013.
|
|
|
|
10.2*
|
|
Employment Agreement between LivePerson and Eran Vanounou, dated as of February 22, 2014
|
|
|
|
31.1
|
|
Certification by Chief Executive Officer pursuant to Exchange Act Rule 13a-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
|
|
|
|
31.2
|
|
Certification by Chief Financial Officer pursuant to Exchange Act Rule 13a-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
|
|
|
|
32.1**
|
|
Certification by Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
|
|
|
|
32.2**
|
|
Certification by Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
|
|
|
|
101.INS†
|
|
XBRL Instance Document
|
|
|
|
101.SCH†
|
|
XBRL Taxonomy Extension Schema Document
|
|
|
|
101.CAL†
|
|
XBRL Taxonomy Extension Calculation Linkbase Document
|
|
|
|
101.DEF†
|
|
XBRL Taxonomy Extension Definition Linkbase Document
|
|
|
|
101.LAB†
|
|
XBRL Taxonomy Extension Label Linkbase Document
|
|
|
|
101.PRE†
|
|
XBRL Taxonomy Extension Presentation Linkbase Document
|
1.
|
The preface to this Agreement constitutes an integral part hereof.
|
2.
|
Executive acknowledges that the employment relationship between the parties will cease as of the Separation Date. Executive shall cease to be an employee, officer, agent or representative of the Company (or any of its parents, subsidiaries or affiliates) for any purpose and, accordingly, Executive undertakes not to represent himself, or hold himself out as, an employee, officer, agent or representative of the Company (or any of its parents, subsidiaries or affiliates) after the Separation Date for any purpose.
|
3.
|
The Executive shall resign from all of his offices in the Company effective as of the Separation Date and shall execute any documents necessary for that purpose. "Separation Date" shall mean February 12, 2014, unless otherwise modified by the parties by mutual agreement.
|
4.
|
Executive agrees that the only payments and benefits that he is entitled to receive from the Company as of and after the Separation Date are those specified in this Agreement.
|
5.
|
Within reasonably prompt time following the Effective Date a full and final settlement of accounts will be carried out with the Executive, in the framework of which the Company shall:
|
5.1
|
Pay or otherwise release as described in Sections 5.2 and 5.3 below (i) any accrued, unused vacation days, in accordance with Company policy and applicable law; and (ii) all outstanding statutory benefits and reimbursable expenses owed to Executive on the Effective Date, including, if applicable, outstanding convalescence pay, statutory severance sick leave, annual leave, and all termination benefits, reimbursable travel or business expenses incurred within the Company's applicable policies, car benefits, and all other statutory benefits connected to or arising out of Executive's employment with the Company or its termination, in each case, to the extent such payment is owed to Executive under applicable law. Such items shall be either released as described in Section 5.2 and 5.3 below or registered in the Executive's last pay slip, which shall be the first pay slip following the Effective Date of this Agreement.
|
6.
|
In addition, subject to the terms of this Agreement, the Company shall provide the Executive the following mutually agreed benefits, which are additional to statutory benefits owed to Executive under applicable law (the "Additional Benefits") within a reasonably prompt time following the Effective Date of this Agreement:
|
7.
|
Executive acknowledges and agrees that, the Company granted the Executive the stock options to purchase shares of Company common stock set forth in Schedule A attached hereto and pursuant to the LivePerson 2009 Stock Incentive Plan or the Company's preceding stock incentive plan (together the
"Options"
). Executive further acknowledges and agrees that, as of the Separation Date, Executive is vested in a total of 250,425 of the Options (the "
Vested Options"
) as detailed in
Schedule A
.
|
8.
|
Except as otherwise provided herein, Executive's participation and coverage under all employee benefit plans and programs sponsored by or through the Company (or any of its affiliates) (e.g., company car, or any social benefits paid, contributed to or arranged by the Company) will cease as of the Separation Date.
|
9.
|
In exchange for the Additional Benefits provided for in this Agreement, the receipt and sufficiency of which is hereby acknowledged by the Executive, and upon fulfillment of the Company's obligations described in Sections 5, 6 and 7 above, the Executive hereby forever unconditionally and irrevocably releases and discharges the Company, and each and all of its direct and indirect affiliates, parents, subsidiaries (wholly-owned or not), members, branches, divisions, business units or groups, agencies, predecessors, successors and assigns, any employee benefit plans established or maintained by any of the foregoing entities and each and all of their current and former officers, directors, employees, trustees, plan administrators, agents, attorneys, representatives, partners, advisor's and shareholders (collectively and individually, shall be referred as the
"Released Parties"
), from any and all claims, demands, causes of action, complaints, agreements, promises (express or implied), contracts, undertakings, covenants, guarantees, grievances, liabilities, damages, rights, obligations, expenses, debts and demands whatsoever, in law or equity, whether present or future, whether known or unknown, and of whatsoever kind or nature that the Executive, his heirs, executors, administrators, representatives and assigns ever had, now have or hereafter can, shall or may have, for, upon, or by reason of any alleged or actual matter, omission, act, cause or thing, including, but not limited to, those arising out of his employment with the Company or the termination thereof (the
"Claims"
). The Executive further agrees that he will not institute or authorize any other party, governmental or otherwise, to institute any administrative or legal proceeding seeking compensation or damages on his behalf against the Released Parties relating to or arising out of any Claim.
|
10.
|
The Executive understands, acknowledges and undertakes that the full receipt of the payments and benefits due or provided to him under this Agreement, including without limitation the Additional Benefits, constitute a full and
|
11.
|
In consideration of the benefits described in this Agreement, the Executive acknowledges and agrees that following the Separation Date he will continue to be obliged (with no limit in time unless expressly indicated otherwise in writing) as follows:
|
a.
|
Executive agrees to provide reasonable transition assistance to the Company and to be reasonably available for meetings and consultations and to answer questions for the Company at mutually convenient times from the Separation Date through February 28, 2014.
|
b.
|
The Executive agrees, with reasonable notice, to provide information and cooperate with the Company as may be reasonably requested in connection with any claims or legal action in which the Company is or may become a party.
|
c.
|
Executive acknowledges and agrees that, at all times in the future, he is bound by confidentiality, intellectual property and non compete obligations under applicable law or agreement, including without limitation the Proprietary Information, Developments and Non-Compete Agreement entered into by and between Executive and the Company on February 22, 2007, and that those provisions are specifically incorporated herein.
|
d.
|
Without limiting the foregoing obligations, the Executive recognizes and acknowledges that all non public information pertaining to the software, business, clients, customers or other relationships of the Company is confidential and is a unique and valuable asset of the Company. The Executive will not give to any person, firm, governmental agency or other entity any information concerning the affairs, business, clients, or customers of the Company except as required by law. The Executive will not make use of this type of information for his own purposes or for the benefit of any person or organization other than the Company. All confidential information and intellectual property of the Company the Executive was exposed to or participated are confidential and will remain the property of the Company.
|
e.
|
For a twelve (12) month period after the Separation Date, the Executive (directly or indirectly, acting on his own behalf, or for or through or together with others and in whatever capacity) will not actively solicit or induce or attempt to solicit or induce any employee, independent contractor, customer or supplier of the Company to terminate their engagement with the Company or engage in activities that directly compete with the business of the Company.
|
12.
|
In the event Executive breaches Paragraphs 9, 10, 11 (c), (d) or (e), or 14 of this Agreement, the Company must provide written notice to the Executive specifying the act which has breached this Agreement, and if such breach
i
|
13.
|
On or promptly after the Separation Date the Executive will cooperate with the Company to follow the Company's standard practices for return of Company property and equipment in his possession or control including but not limited to, computer equipment (including, but not limited to, computer hardware, software and printers, wireless handheld devices, cellular phones, pagers, etc.), customer information, customer lists, employee lists, Company files , notes, contracts, records, business plans, financial information, specifications, computer-recorded information, software, tangible property, identification badges and keys, and any other materials of any kind which contain or embody any proprietary or confidential material of the Company (and all reproductions thereof). The Executive confirms that as of the Separation Date he has left intact all electronic Company documents, including those that he developed or helped to develop during his employment. The Executive further agrees that he has already cancelled (or transferred to his personal account) and/or will cooperate with the Company to cancel (or transfer to his personal account) all accounts for his benefit, if any, in the Company's name including, but not limited to, credit cards, bank accounts, company car, telephone charge cards, cellular phone accounts, pager accounts, computer accounts, prior to the Separation Date.
|
14.
|
The Executive agrees that he will not, at any time, knowingly or intentionally disparage, criticize or ridicule the Company, its officers, directors, products, services or business practices.
|
15.
|
All amounts payable under this Agreement shall be subject to deduction for all federal, state and local taxes as may be required to be withheld pursuant to any applicable law or regulation and any other required deductions. The parties intend that all payments made under this Agreement will be exempt from, the requirements of Section 409A of the Internal Revenue Code of 1986, as amended, the regulations and other guidance there under and any state law of similar effect (collectively "Section 409A"), if applicable, so that none of the payments or benefits will be subject to the adverse tax penalties imposed under Section 409A, and any ambiguities herein will be interpreted to so comply or be exempt. Each payment and benefit payable under this Agreement is intended to constitute separate payments for purposes of Section 1.409A-2(b)(2) of the Treasury Regulations. The Company shall have no liability to Executive or to any other person if the payments and benefits provided in this Agreement that are intended to be exempt from Section 409A are not so exempt or compliant. In no event will the Company reimburse Executive for any taxes or other penalties that may be imposed on Executive as a result of Section 409A, and Executive shall indemnify the Company for any liability therefor.
|
16.
|
All amounts payable under this Agreement shall be subject to deduction for all taxes and compulsory deductions as may be required to be withheld pursuant to any applicable law or regulation and any other required deductions.
|
17.
|
This Agreement amicably resolves any issues between the parties and they agree that this Agreement shall neither be interpreted nor construed as an admission of any wrongdoing or liability on the part of either the Executive or the Company.
|
18.
|
This Agreement shall be governed by and construed in accordance with the laws of the State of Israel, except for those terms which, by their nature, relate specifically to the laws of the United States or the actions of the parent company within the United States, which shall be governed by the laws of New York, in each case, without regard to principles of conflicts of laws.
|
19.
|
The provisions of this Agreement are severable. If any provision of this Agreement is held invalid or unenforceable, such provision shall be deemed deleted from this Agreement and such invalidity or unenforceability shall not affect any other provision of this Agreement, the balance of which will remain in and have its intended full force and effect; provided, however that if such invalid or unenforceable provision may be modified so as to be valid and enforceable as a matter of law, such provision shall be deemed to have been modified so as to be valid and enforceable to the maximum extent permitted by law.
|
20.
|
The Executive acknowledges that he has been offered adequate time by the Company to review the Agreement and consult with an attorney of his choice if he desires to concerning the waivers contained in and the terms of this Agreement. Prior to executing this Agreement, the Executive shall ensure that the waivers he has made and the terms he has agreed to herein are done knowingly, consciously and with full appreciation that he is forever foreclosed from pursuing any of the rights so waived.
|
21.
|
The Executive acknowledges that he: (a) has carefully read this Agreement in its entirety; (b) has had a reasonable opportunity to fully consider the terms of this Agreement; (c) has been provided adequate time to consult with an attorney of his choice if he desires to before signing this Agreement; (d) in accordance with Section 20 and clause (c) above, fully understands the significance of all of the terms and conditions of this Agreement; and (e) is signing this Agreement voluntarily and of his own free will and agrees to abide by all the terms and conditions contained herein.
|
22.
|
[Intentionally Omitted.]
|
23.
|
This Agreement shall be binding on and shall inure to the benefit of the Executive's heirs, executors, administrators, representatives and assigns and the Company's successors in interest and assigns. The Executive may not assign any of his rights or duties hereunder, except with the written consent of the Company. The Executive covenants and represents that he has not assigned or attempted to assign any rights or claims he may have against the Company at any time prior to signing this Agreement.
|
24.
|
The parties agree that this Agreement contains all terms agreed between the parties relating to the termination of Executive's employment with the Company and supersedes and cancels any and all prior agreement or understanding on the subjects covered herein, and no agreements, representations or statements of either party not contained in this Agreement shall bind that party. Notwithstanding the foregoing, the Executive acknowledges that nothing herein supersedes any pre-existing duties of confidentiality, or the assignment of any invention or intellectual property or proprietary rights to the Company. This Agreement can be modified only in writing signed by both parties.
|
25.
|
Executive agrees that this Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall constitute one agreement. Execution of a facsimile or scanned image shall have the same force and effect as execution of an original, and a facsimile or scanned image of a signature shall be deemed an original and valid signature.
|
Eli Campo
|
|
LivePerson, Inc., on behalf of itself and LivePerson, Ltd.
|
||
|
|
|
|
|
By:
|
/s/ ELI CAMPO
|
|
By:
|
/s/ DANIEL R. MURPHY
|
Name:
|
Eli Campo
|
|
Name:
|
Daniel R. Murphy
|
Date:
|
2/22/2014
|
|
Date:
|
2/21/2014
|
Grant Date
|
Original Shares Issued
|
Shares Vested
|
Shares not yet vested
|
Exercised 2010
|
Exercised 2011
|
Remaining Shares
|
Remaining Shares Vested
|
Remaining Shares Unvested
|
Remaining Unvested Shares Vesting in 12 mo.
|
2/21/2007
|
300,000
|
300,000
|
—
|
—
|
225,000
|
75,000
|
75,000
|
—
|
N/A
|
4/1/2008
|
27,000
|
27,000
|
—
|
13,500
|
6,750
|
6,750
|
6,750
|
—
|
N/A
|
3/5/2009
|
100,000
|
100,000
|
—
|
—
|
—
|
100,000
|
100,000
|
—
|
N/A
|
6/17/2010
|
24,900
|
18,675
|
6,225
|
|
—
|
24,900
|
18,675
|
6,225
|
6,225
|
9/4/2012
|
200,000
|
50,000
|
150,000
|
|
|
200,000
|
50,000
|
150,000
|
50,000
|
Totals:
|
651,900
|
495,675
|
156,225
|
13,500
|
231,750
|
406,650
|
250,425
|
156,225
|
56,225
|
•
|
You will be paid salary at a rate of 104,000 NIS (gross) per month according to our standard Israel payroll practices as they may exist from time to time
|
•
|
You will be eligible to participate in the LivePerson bonus plan as it exists from time to time under terms comparable to other LivePerson employees of similar role and responsibility. Your annual target bonus will be US
$130,000
. Achievement of your bonus target and actually payout will be based upon the Company's financial performance as well as individual MBOs applicable to the relevant fiscal year, all to be further detailed in your annual bonus plan and pursuant at all times to the Company's then-current bonus practices. Bonus payments will be made in local currency, to be converted from US dollars to NIS at the time of payment. During your first year of employment, your annual target bonus will be prorated for actual months of service during the year. LivePerson reserves the right to amend or terminate its bonus plan or any terms or criteria thereunder, and corresponding policies, at any time.
|
•
|
You will be granted an unvested option to purchase
110,000
shares of LivePerson common stock which grant and strike price will be set and subject to approval by the LivePerson Board of Directors on the first option grant date following your employment start date, which is expected to occur in February 2014. This option will be granted under the terms and conditions of the LivePerson 2009 Stock Incentive Plan and the Notice of Grant of Stock Option and Stock Option Agreement in effect as of your start date (the "Plan Documents"), which will be issued to you at the time of the grant. This option will vest in equal increments of 25% annually over four (4) years, beginning on the first anniversary of the grant date, subject to your continued service to the Company through each vesting date and the terms of the Plan Documents.
|
•
|
Your direct employment will be with the Company's subsidiary in Israel, LivePerson Ltd. With respect to the duties and responsibilities of your role you will also take direction from and have full obligations to LivePerson, Inc. (the parent company of LivePerson Ltd.).
|
•
|
You will be eligible for vacation in accordance with LivePerson's vacation policy as it exists from time to time. Under the current policy, you will accrue vacation at the rate of 1.85 days vacation per month (22 days per full year), subject to the LivePerson vacation policy, as it may be amended from time to time.
|
•
|
You will be eligible to enroll in the applicable local LivePerson health and other benefits programs on the first day of the first full calendar month of your employment subject to the terms and conditions of the applicable plans and policies as they may exist from time to time and as further described in the attached
Rider A
, your direct employment contract with the Company's subsidiary LivePerson Ltd ("Israel Employment Terms).
|
•
|
In connection with your acceptance of the position and employment with the Company, you will be covered by the relevant insurance and indemnification policies and practices of the Company and its subsidiary LivePerson Ltd to the same extent such policies apply to all employees or to all employees of similar role and responsibility, including without limitation the Company's Directors and Officers Insurance policies and standard indemnification agreements and practices.
|
•
|
This offer is made contingent upon your successful completion of the Company's pre-employment procedures, including reference and background verification of your prior employment and other information provided by you during the interview process, as well as proof of identity and authorization to work under applicable laws, In
|
•
|
By signing this letter you confirm that to the best of your knowledge you are not subject to any agreement, with a prior employer or otherwise, which would prohibit, limit or otherwise be inconsistent with your employment at LivePerson or prevent you from performing your obligations to LivePerson following your start date with LivePerson. Additionally, please be advised that it is LivePerson's corporate policy not to obtain or use any confidential, proprietary information or trade secrets of its competitors or others, unless it is properly obtained from sources permitted to disclose such information. By signing this letter below, you are acknowledging that you have been advised of this policy and that you accept and will abide by it during your employment with LivePerson, and you are also agreeing that you will not use or disclose any confidential or proprietary information of LivePerson to any third party, including any previous or subsequent employer.
|
•
|
Your employment with LivePerson is at-will and may be terminated by you or LivePerson at any time with or without cause subject only to the provisions below and in the attached Rider A.
|
•
|
In the event that your employment is terminated by the Company without Cause, and provided that within sixty (60) days following your termination date you timely execute and do not revoke a separation and release agreement drafted by and satisfactory to the Company (the "Separation Agreement"), the Company will provide you with 120 days notice, or at the Company's option, 120 days of your then-current base salary, payable in accordance with the Company's standard payment procedures and subject to your Israel Employment Terms. For the avoidance of doubt, the foregoing severance shall not be paid in the event that your employment is terminated due to your voluntary resignation except as required by applicable law. In the event that you at any time wish to voluntarily terminate your employment you will provide the Company with at least 120 days notice as set forth in your Israel Employment Terms. For clarification, the severance provisions above will apply in the event that your employment is terminated by Company or any successor to Company unless your employment is terminated due to one or more of the circumstances described in the definition of "Cause" below.
|
•
|
For purposes hereof, "Cause" shall mean a determination by the Company (which determination shall not be arbitrary or capricious) that: (i) you materially failed to perform your specified or fundamental duties to the Company or any of its subsidiaries, (ii) you were convicted of, or pled nolo contendere to, a felony (regardless of the nature of the felony), or any other crime involving dishonesty, fraud, or moral turpitude, (iii) you engaged in or acted with gross negligence or willful misconduct (including but not limited to acts of fraud, criminal activity or professional misconduct) in connection with the performance of your duties and responsibilities to the Company or any of its subsidiaries, (iv) you failed to substantially comply with the rules and policies of the Company or any of its subsidiaries governing employee conduct or with the lawful directives of the Board of Directors. or (v) you breached any non-disclosure. Non-solicitation or other restrictive covenant obligation to the Company or any of its subsidiaries.
|
•
|
This letter shall not be construed as an agreement (either express or implied) to employ you, or for any guaranteed term of employment, and shall in no way alter the Company's policy of employment at-will, under which both the Company and you remain free to end the employment relationship for any reason, at any time, with or without cause or notice (except as expressly provided above). This letter, together with the terms and conditions of your Israel Employment Terms, the Code of Conduct, the Confidential Information and Invention Assignment Agreement, and all similar Company agreements and policies applicable to all employees or applicable to all employees of similar role and responsibility, comprise the complete terms of your employment with the Company.
|
Accepted by:
|
/s/ Eran Vanounou
|
|
11/7/2013
|
|
|
Name
|
|
Date
|
|
/s/ Robert LoCascio
|
|
|
/s/ Eran Vanounou
|
|
The Company
|
|
|
The Employee
|
|
/s/ Robert LoCascio
|
|
|
/s/ Eran Vanounou
|
|
The Company
|
|
|
The Employee
|
|
1.
|
I have reviewed this Quarterly Report on Form 10-Q of LivePerson, Inc.;
|
2.
|
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
|
3.
|
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
|
4.
|
The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
|
(a)
|
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
|
(b)
|
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
|
(c)
|
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
|
(d)
|
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
|
5.
|
The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
|
(a)
|
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
|
(b)
|
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
|
Date:
|
May 9, 2014
|
By:
|
/s/ ROBERT P. LOCASCIO
|
|
|
Name:
|
Robert P. LoCascio
|
|
|
Title:
|
Chief Executive Officer (principal executive officer)
|
1.
|
I have reviewed this Quarterly Report on Form 10-Q of LivePerson, Inc.;
|
2.
|
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
|
3.
|
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
|
4.
|
The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
|
(a)
|
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
|
(b)
|
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
|
(c)
|
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
|
(d)
|
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
|
5.
|
The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
|
(a)
|
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
|
(b)
|
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
|
Date:
|
May 9, 2014
|
By:
|
/s/ DANIEL R. MURPHY
|
|
|
Name:
|
Daniel R. Murphy
|
|
|
Title:
|
Chief Financial Officer (principal financial officer)
|
(1)
|
the Quarterly Report of the Company on Form 10-Q for the period ended
March 31, 2014
, as filed with the Securities and Exchange Commission (the “Report”), fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
|
(2)
|
the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
|
Date:
|
May 9, 2014
|
By:
|
/s/ ROBERT P. LOCASCIO
|
|
|
Name:
|
Robert P. LoCascio
|
|
|
Title:
|
Chief Executive Officer (principal executive officer)
|
(1)
|
the Quarterly Report of the Company on Form 10-Q for the period ended
March 31, 2014
, as filed with the Securities and Exchange Commission (the “Report”), fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
|
(2)
|
the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
|
Date:
|
May 9, 2014
|
By:
|
/s/ DANIEL R. MURPHY
|
|
|
Name:
|
Daniel R. Murphy
|
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|
Title:
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Chief Financial Officer (principal financial officer)
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