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TABLE OF CONTENTS
PART IV

Table of Contents

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549



FORM 10-K

(Mark One)    

ý

 

ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934.

For the fiscal year ended September 30, 2011

OR

o

 

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 0-51813

LIQUIDITY SERVICES, INC.
(Exact Name of Registrant as Specified in Its Charter)

Delaware
(State or Other Jurisdiction of
Incorporation or Organization)
  52-2209244
(I.R.S. Employer
Identification No.)

1920 L Street, N.W., 6th Floor, Washington, D.C.
(Address of Principal Executive Offices)

 

20036
(Zip Code)

(202) 467-6868
(Registrant's Telephone Number, Including Area Code)

Securities Registered pursuant to Section 12(b) of the Act:
None

Securities Registered pursuant to Section 12(g) of the Act:
Common Stock, par value $.001 per share

         Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes o    No ý

         Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Act. Yes o    No ý

         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 ý    No o

         Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Website, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.05 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes ý    No o

         Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§229.405 of this chapter) is not contained herein, and will not be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. o

         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 the definitions of "large accelerated filer," "accelerated filer" and "smaller reporting company" in Rule 12b-2 of the Exchange Act. (Check One):

Large accelerated filer o   Accelerated filer ý   Non-accelerated filer o   Smaller reporting company o

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

         Aggregate market value of voting and non-voting common equity held by non-affiliates of the registrant as of March 31, 2011 based upon the closing price of the common stock as reported by The NASDAQ Stock Market on such date, was approximately $317,876,120.

         The number of shares outstanding of the issuer's common stock, par value $.001 per share, as of December 5, 2011 was 29,496,162.

DOCUMENTS INCORPORATED BY REFERENCE

Portions of the registrant's Proxy Statement relating to its 2011 Annual Stockholders' Meeting, to be filed subsequently, are incorporated by reference into Part III of this Form 10-K.


Table of Contents

INDEX

TABLE OF CONTENTS

Item
 
Description
 
Page
 

 

 

 

 

 

 

 

 
 

1.

 

Business

    1  
 

1A.

 

Risk Factors

    16  
 

1B.

 

Unresolved Staff Comments

    28  
 

2.

 

Properties

    29  
 

3.

 

Legal Proceedings

    29  
 

4.

 

Removed and Reserved

    29  
 

PART II

 
 

5.

 

Market for Registrant's Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities

    30  
 

6.

 

Selected Financial Data

    30  
 

7.

 

Management's Discussion and Analysis of Financial Condition and Results of Operations

    35  
 

7A.

 

Quantitative and Qualitative Disclosures About Market Risk

    51  
 

8.

 

Financial Statements and Supplementary Data

    51  
 

9.

 

Changes in and Disagreements with Accountants on Accounting and Financial Disclosure

    51  
 

9A.

 

Controls and Procedures

    51  
 

9B.

 

Other Information

    54  
 

PART III

 
 

10.

 

Directors, Executive Officers and Corporate Governance

    55  
 

11.

 

Executive Compensation

    55  
 

12.

 

Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters

    55  
 

13.

 

Certain Relationships and Related Transactions, and Director Independence

    55  
 

14.

 

Principal Accounting Fees and Services

    55  
 

PART IV

 
 

15.

 

Exhibits, Financial Statement Schedule

    56  
 

Signatures

    89  

Table of Contents

        Unless the context requires otherwise, references in this report to "we," "us," the "Company" and "our" refer to Liquidity Services, Inc. and its subsidiaries.


PART I

Item 1.    Business.

Overview

        We operate several leading online auction marketplaces for surplus and salvage assets. We enable buyers and sellers to transact in an efficient, online auction environment offering over 500 product categories. Our marketplaces provide professional buyers access to a global, organized supply of surplus and salvage assets presented with customer focused information including digital images and other relevant product information along with services to efficiently complete the transaction. Additionally, we enable our corporate and government sellers to enhance their financial return on excess assets by providing liquid marketplaces and value-added services that integrate sales and marketing, logistics and transaction settlement into a single offering. We organize our products into categories across major industry verticals such as consumer electronics, general merchandise, apparel, scientific equipment, aerospace parts and equipment, technology hardware, energy equipment, industrial capital assets, fleet and transportation equipment, and specialty equipment. Our online auction marketplaces are www.liquidation.com, www.govliquidation.com, www.govdeals.com, www.networkintl.com, www.truckcenter.com, and www.secondipity.com.

        We believe our ability to optimize our clients' net recovery and supply chain for surplus and salvage assets generates a continuing flow of goods from our corporate and government sellers. This valuable and reliable flow of goods in turn attracts an increasing number of professional buyers to our marketplaces. During fiscal year 2011, the number of registered buyers grew from approximately 1,403,000 to approximately 1,604,000, or 14.3%. During the past three fiscal years, we have conducted over 1,467,000 online transactions generating over $1.3 billion in gross merchandise volume or GMV. We believe the continuing flow of goods in our marketplaces attracts a growing buyer base which creates a self-sustaining cycle for our buyers and sellers.

        In the fiscal year ended September 30, 2011, we generated GMV of $548.6 million and revenue from continuing operations of $327.4 million through multiple sources, including transaction fees from sellers and buyers, revenue sharing arrangements, value-added service charges and online advertising fees. Our GMV has grown at a compound annual growth rate of approximately 26% since fiscal year 2006. Additionally, we have been profitable and cash flow positive each year since fiscal year 2003. As of September 30, 2011, we have ceased operations and substantially liquidated our United Kingdom (UK) subsidiary, Liquidity Services, Ltd (LSL) and have accounted for its operations as discontinued operations for all periods presented.

        On October 1, 2011, we completed the acquisition of the assets of Jacobs Trading, LLC (Jacobs).The acquisition price includes an upfront cash payment of $80.0 million, a seller subordinated 5% note of $40.0 million, stock consideration of $24.5 million and an earn-out payment. Under the terms of the agreement, the earn-out is based on EBITDA earned by Jacobs during the trailing 12 months ending December 31, 2012 and 2013. The Company's estimate of the fair value of the earn-out as of October 1, 2011 is $8.2 million out of a possible total earn out payment of $30.0 million. Jacobs is a leading remarketer for the sale of surplus and returned consumer goods. Jacobs conducts its sales on a purchase model basis using its marketplace, an extensive global buyer base and product domain expertise.

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Industry Overview

        While a well-established forward supply chain exists for the procurement of assets, most manufacturers, retailers, corporations and government agencies have not made significant investments in their reverse supply chain process or systems. The reverse supply chain addresses the redeployment and remarketing of surplus and salvage assets. These assets generally consist of retail customer returns, overstock products and end-of-life goods or capital assets from both the corporate and government sectors. According to the National Retail Federation, a retail industry association, the total value of merchandise returned in the United States for 2011 is estimated to be $217 billion, up approximately 14% from $190 billion in 2010.

        The supply of surplus and salvage assets in the reverse supply chain results from a number of factors, including:

        Organizations that manufacture, distribute, sell or use finished goods regularly need to dispose of excess inventory or returned merchandise. We believe the management and remarketing of surplus assets traditionally has been an inefficient process. While many organizations spend considerable resources developing systems and channels supporting the flow of finished goods to their core customers, we believe that many have not historically dedicated significant resources to the reverse supply chain. Factors contributing to these inefficiencies in the reverse supply chain include the lack of:

        Traditional methods of surplus asset disposition include ad-hoc, negotiated direct sales, utilization of individual brokers or sales agents and live on-site auctions. We believe these solutions are generally highly fragmented, geographically dispersed and poorly integrated with supply chain operations. The manual, negotiated and geographically dispersed nature of traditional surplus resale methods results in

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a lack of pricing transparency for offered goods, multiple brokers/parties ultimately involved in the final disposition and a lower number of potential buyers and bids, which we believe typically leads to lower recovery for sellers.

        A significant number of professional buyers seek surplus and salvage assets to sustain their operations and end customers demand. They include online and offline retailers, convenience and discount stores, value-added resellers such as refurbishers and scrap recyclers, import and export firms and small businesses. Traditionally, these buyers have had limited access to a reliable flow of surplus goods and assets, relying instead on their own network of industry contacts and fixed-site auctioneers to locate, evaluate and purchase specific items of interest. Traditional methods are inefficient for buyers due to the lack of:

        The Internet is a global medium enabling millions of people worldwide to share information, communicate and conduct business electronically. International Data Corporation (IDC), a provider of global IT research and advice, estimates 2.0 billion people used the Internet on a regular basis during 2010. This number is expected to surpass 2.7 billion by 2015 or 40% of the world's population. (Source: IDC's Digital Marketplace Model and Forecast). We believe professional buyers of surplus and salvage assets will increasingly use the Internet to identify and source goods available for immediate purchase.

Our Solution

        Our solution is comprised of our online and live auction marketplaces and value-added services. Our marketplaces and services are designed to provide sellers a comprehensive solution to quickly bring surplus assets to market and enhance the financial value realized from the sale of their surplus assets while providing buyers with confidence in the reliable flow of goods they purchase. We provide our sellers access to several liquid marketplaces with over 1.6 million professional buyers and a suite of services and logistics capabilities to efficiently manage our clients' reverse supply chain. We seek the optimal methods to maximize our clients' net recovery using channel strategies and dedicated programs to deliver transparent, sustained value.

        Through our relationships with sellers, we provide buyers convenient access to a substantial and continuous flow of surplus and salvage assets. We provide buyers with products in over 500 categories in lot sizes ranging from full truck loads to pallets, packages and individual items. Our solution combines leading online marketplaces with a full suite of integrated sales, marketing, merchandising, fulfillment, payment collection, customer support, dispute mediation and logistics services. We provide buyers a convenient method for sourcing surplus and consumer goods. For any given asset, buyers have access to a detailed product description, product manifest, digital images of a product, relevant transaction history regarding the seller, shipping weights, product dimensions and estimated shipping costs to the buyer's location. This enables our solutions to become the primary source for many of our professional buyers and end-users.

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        The following chart provides a summary of our online marketplace solution:

GRAPHIC

        We believe our marketplaces benefit over time from greater scale and adoption by our constituents creating a virtual cycle for our buyers and sellers. As of September 30, 2011, we had aggregated over 1,604,000 registered buyers in our marketplaces and access to millions of end-users through a range of existing consumer marketplaces. Aggregating this level of buyer demand and market data enables us to generate a continuous flow of goods from corporate and government sellers, which in turn attracts an increasing number of professional buyers. During the fiscal year ended September 30, 2011 we had over 1,936,000 auction participants in our online auctions from our registered buyers. During fiscal year 2011, we grew our registered buyer base by 14.3% or approximately 201,000. As buyers continue to discover and use our online marketplaces as an effective method to source assets, we believe our solutions become an increasingly attractive sales channel for corporations and government agencies. We believe this self-reinforcing cycle results in greater transaction volume and enhances the value of our marketplaces.

Competitive Factors

        We have created liquid marketplaces for virtually any type, quantity or condition of surplus or salvage assets. The strengths of our business model include:

Aggregation of supply and demand for surplus and salvage assets

        Our ability to aggregate sellers and buyers through our marketplaces is a fundamental strength of our business model. Sellers benefit from a liquid, transparent market and the active participation of our large base of professional buyers, which enhances returns. Buyers benefit from our relationships with high-volume, corporate and government sellers, which provides them with continuous access to a comprehensive selection of surplus and salvage assets. Our solution eliminates the need for sellers and buyers to rely on the highly fragmented and geographically dispersed group of traditional liquidators. Instead, sellers and buyers conveniently access our online marketplaces for their entire surplus and salvage asset needs.

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Integrated and comprehensive solution

        Our marketplaces are designed to provide sellers and buyers with a comprehensive solution for the online sale and purchase of surplus and salvage assets. We offer a full suite of value-added services to simplify the sales and supply chain processes for sellers and improve the utility of our marketplaces for buyers. For corporate and government sellers, we provide sales, marketing, logistics and customer support services that are fully integrated with our marketplaces, creating operational and system efficiencies. For many of these sellers, asset disposition is not a core business function to which they desire to dedicate internal resources. With our solution, we manage each step of the transaction and supply chain for our sellers reducing complexity while providing the ability to optimize the client's net financial return in the sale of surplus goods and assets. Sellers simply make goods available at their facilities or deliver them to our distribution centers and we deliver the profits after the sale is completed. Our buyer services include intelligent alerts, search tools, dynamic pricing, shipping and delivery, secure settlement, live customer support and dispute resolution to enable the most effective methods to source assets for their businesses.

Flexible and aligned transaction model

        We offer three primary transaction models to our sellers: consignment, profit-sharing and purchase. Under these models, our compensation is derived from either the gross or net proceeds received from the sale of the assets. Our consignment and profit-sharing arrangements are designed to maximize returns by aligning our economic interests.

Faster transaction cycle times for our seller and buyers

        We believe our marketplace solutions allow sellers to complete the entire sales process more rapidly than through other liquidation methods by generally reducing the complexities in the reverse supply chain and utilizing our multi-channel strategies to optimize recovery and velocity. As a result, sellers are able to reduce surplus or less valuable inventory quickly, generate additional working capital and reduce the cost of carrying unwanted assets. We provide a one stop solution to enable professional buyers of any size throughout the world to purchase assets in an efficient manner. For these buyers, we provide a broad range of services to give them the information necessary to make an informed bid and ensure they quickly and efficiently receive the goods purchased.

Solutions that promote sustainability and green solutions for improved corporate/government stewardship

        Our solutions provide a range of capabilities that enable corporate and government agencies to directly reduce the amount of waste generated by redistributing end of life products or assets, through our solutions, improving the net financial recovery generated while positively impacting the communities they serve. In addition, we enable our sellers and their customers or consumers to reduce consumer electronics waste through our trade-in solutions. In aggregate, some of the world's largest forward thinking corporations and government agencies have significantly enhanced their stewardship of communities and the environment by partnering with us.

Our Strategy

        Our mission is to provide commercial and government clients and buying customers the world's most transparent, innovative and effective online marketplaces and integrated services for surplus assets. The key elements of our mission are to continue to:

Grow our buyer base and increase active buyer participation on our marketplaces

        We intend to increase the active buyer participation within our marketplaces, by attracting new buyers and leveraging our base of existing professional buyers. We intend to attract new buyers by using

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a variety of online and traditional marketing programs while improving the services and experience for our valued professional buyers. In addition, we plan to use the comprehensive buyer profiles, preferences and transactional data we have compiled over the past several years to enable us to identify and market highly relevant assets available through our marketplaces to the most likely buyers. We believe these initiatives will help us to increase the total number of auction participants and increase loyalty among our buyer base.

Increase value and services for existing sellers

        We intend to grow by increasing the number of categories and geographies that we serve to existing sellers. For many of our sellers, we currently handle only a portion of the available supply of their surplus inventory or assets. In recent years, we have developed trusted relationships with large corporations and government agencies that offer significant growth opportunities by increasing our services offered and share of supply of their surplus assets. In addition, we have partnered with our sellers to identify previously unknown (untapped) flows of surplus assets that can effectively generate greater net returns than their current processes and improve their corporate stewardship. For example, on behalf of a large multinational retailer, we instituted a sustainability program, enabling our client to realize value for products that were previously land filled, thus creating value for our client while providing an environmentally friendly solution.

Develop new seller relationships

        We intend to build upon our client base of the world's largest retailers and manufacturers, our expertise with the DoD and thousands of municipal clients to attract additional corporate and government sellers to our marketplaces. We believe the vast majority of corporations and government agencies still rely on inefficient, traditional, and less transparent disposition methods for their surplus assets. We believe our demonstrated performance coupled with an expanded sales initiative will allow us to attract additional corporate and government sellers. As part of our sales initiative, we plan to hire additional professionals and increase our marketing and advertising to sellers in our target markets.

Innovation and Technology Development

        During the past year we embarked on a redesign of our technology to create more personalized and diverse user experiences and tools for our buyers and sellers. Some of these, such as our Seller Self-Service, trade in services, Web-site enhancements or features and multi-channel optimization have already enhanced our business. We intend to develop and introduce new tools to further automate our solution and leverage the scalability of our technology investments across all of our marketplaces. In addition to enhancing the features, experience, and service for our buyers and sellers, we seek to leverage the increasing insight we gain with each transaction to enhance the recovery value clients realize along with improving the relevancy for our buyers in the reverse supply chain.

Acquire complementary businesses

        We intend to increase our share of the supply of surplus and salvage goods sold by expanding our operations geographically and across new complementary markets. To support this growth, we intend to continue our disciplined and targeted acquisition strategy. Our approach focuses on identifying target companies that will offer us new or complementary areas of expertise, technology advancements, client bases and geographic territories, such as the GovDeals acquisition, which we completed on January 1, 2008, the Network International acquisition, which we completed on June 15, 2010, the TruckCenter acquisition, which we completed on June 1, 2011, and the Jacobs acquisition which we completed on October 1, 2011. In considering each acquisition scenario, we evaluate the merits of the individual opportunity and determine whether to employ a "buy" or "build" strategy.

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Our Marketplaces

        Our online auction marketplaces serve as an efficient and convenient method for the sale of surplus and salvage consumer goods and capital assets. We operate and enable several marketplaces, including the following:

        Our online auction marketplaces are designed to address the particular requirements and needs of buyers and sellers. Although our buyers may access and register on a single marketplace, we use numerous cross-marketing and cross-promotional methods to ensure that buyers are exposed to all of our marketplaces and to all product categories in which they have expressed an interest. For example, we display cross-search results for all our marketplaces in response to key word searches in a single marketplace.

        In addition to these leading business to business marketplaces, we recognize the need to reach end users for some of the assets our clients have entrusted to us. Thus, we have developed the capability to sell products on our client's behalf directly to end-users and/or consumers using a range of existing marketplaces. Our www.secondipity.com marketplace provides consumers a trusted source of value products through a socially conscious online experience designed to provide "Better Value, Better Life," through donating a portion of the proceeds of every sale to charity. We also have an established global buyer base that seeks to buy in larger quantities than are offered through our standard auction platform. Thus, we have dedicated sales teams to support their needs and supply chain. These range from a single truckload to ongoing flows for export anywhere in the world, where we market, handle, and support the full disposition on behalf of our buyers. We expect to continue to meet the needs of our clients and to access a growing range of products for all our buyers by enabling our multi-channel strategy to ensure we create the greatest value for assets at the end of their initial product life cycle.

Our Value-Added Services for Buyers and Sellers

        We have integrated value-added services to simplify the supply chain processes for our buyers and sellers. We believe these services create the greatest operational efficiencies within this element of the supply chain enabling the greatest value for sellers and buyers with the highest level of confidence and transparency in the services we provide. Additionally, we believe these services improve compliance with the various policies, regulations and sale restrictions of our corporate and government sellers while supporting, or greatly enhancing, many corporate or government environmental initiatives.

Seller services.    We offer value-added services to sellers in three areas: (1) merchandising and channel optimization, (2) logistics and (3) settlement and customer support.

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Buyer services.    Many of the services we provide to sellers also benefit buyers by providing them with the information necessary to make a more informed bid and to receive the goods they purchased. Our buyer focused services include the following:

Sales and Marketing

        We utilize a direct sales and marketing force to acquire and manage our seller and buyer accounts. As of September 30, 2011, we had 69 sales and 26 marketing personnel. Our sales activities are focused primarily on acquiring new sellers and improving the value to existing sellers. Our marketing activities are focused primarily on acquiring new buyers and increasing existing buyer participation.

Sales

        Our sales personnel develop seller relationships, establish agreements to provide our services and manage the business accounts on an on-going basis. Our sales team focuses on building long-term relationships with sellers that we believe will generate recurring transactions. They also leverage our years of experience and market data of completed transactions to identify which of our various services would be beneficial to each new or existing seller.

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        Our sales group is organized to serve three distinct groups of sellers: large corporate accounts, medium to small corporate accounts and government accounts. This approach is based on our experience in understanding and serving the unique needs of each type of seller:

        Our sales personnel receive a salary and performance-based commissions.

Marketing

        We use a variety of online and traditional marketing to attract and activate professional buyers to maximize the number of bidders participating in our online marketplaces as well as to support our sales team:

        All marketing activities are evaluated based on the level of auction participation in our marketplaces and the cost effectiveness of each action.

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Technology and Infrastructure

        Our marketplaces are fully web-based and can be accessed from any Internet enabled device by using a standard web browser. Our technology systems enable us to automate and streamline many of the manual processes associated with finding, evaluating, bidding on, paying for and shipping surplus and salvage assets. The technology and content behind our marketplaces and integrated value-added services were developed in-house by full-time employees, providing us with control over the marketplaces and the ability to make rapid enhancements to better fit the specific needs of our business and customers. Our marketplaces are supported by a common database architecture and a shared system application. This infrastructure provides:

        We have designed our websites and supporting infrastructure to be highly robust and to support new services and increased traffic. Our servers are fully-managed and hosted in a physically secure and network-secure environment at data centers in Ashburn, Virginia, which is managed by Equinix, Inc., in Phoenix, Arizona, which is managed by Limelight Networks, Inc., in Atlanta, Georgia, which is managed by SunGard, LP, in Houston, Texas, which is managed by Cyrus One, in Los Angeles, California, which is managed by Tierzero, and in Dallas, Texas, which is managed by Equinix, Inc . Every critical piece of our application is fully redundant, and we maintain off-site back-up systems as well as a disaster recovery facility. Our network connectivity offers high performance and scalability to accommodate increases in website traffic. Since January 1, 2003, we have experienced no material service interruptions on our online marketplaces.

        Our applications support multiple layers of security, including password-protected log-ins, encryption technology to safeguard information transmitted in web sessions and firewalls to help prevent unauthorized access to our network and servers. We devote significant efforts to protecting our systems from intrusion.

Operations

        Supporting large organizations that have a recurring need to sell surplus and salvage assets requires systematic processes to enhance the financial value and convenience received by our customers. We believe we have integrated all of the required operational processes into our solution to efficiently and to effectively support our buyers and sellers. Our operations group is comprised of three functions: (1) buyer relations, (2) shipping logistics and (3) distribution center operations.

Buyer relations

        Our buyer relations group supports the completion of buyer transactions by managing the buyer registration and qualification process, answering questions and requests from buyers, collecting buyer payments and resolving disputes. Our websites contain extensive information about buying through our online marketplaces, including an online tutorial regarding the use of our marketplaces, answers to frequently-asked buyer questions and an indexed help section. Buyers are able to contact a customer service representative by live chat as well as e-mail or phone if they need additional support.

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Shipping logistics

        Our shipping logistics group manages and coordinates inbound and outbound shipping of merchandise for sellers and buyers. We offer, as part of our value-added services, integrated shipping services and price quotes through multiple shipping carriers. In addition, our shipping coordination group personnel monitor the performance and service level of our network of carriers to help ensure speed and quality of service.

Distribution center operations

        Our distribution center operations group performs selected pre-sale and post-sale value-added services at our distribution centers and at seller locations. These activities include unloading, manifesting and reporting discrepancies for all received assets and sales preparation of offered assets, including merchandising and organizing offered assets, writing product descriptions, capturing digital images and providing additional optional value-added services such as product delabeling, data cleaning/wiping, testing, refurbishment and repackaging. Our distribution center operations group personnel also arrange the outbound shipping or pick-up of purchased assets with our buyers.

Competition

        The online services market for auctioning or liquidating surplus and salvage assets is competitive and growing rapidly. We currently compete with:

        We expect our market to become even more competitive as traditional and online liquidators and auctioneers continue to develop online and offline services for disposition, redeployment and remarketing of surplus and salvage assets. In addition, manufacturers, retailers and additional government agencies may decide to create their own websites to sell their own surplus and salvage assets and those of third parties. Competitive pressures could harm our business, financial condition and operating results.

        Some of our other current and potential competitors have longer operating histories, larger client bases, greater brand recognition and significantly greater financial, marketing and other resources than we do. In addition, some of these competitors may be able to devote greater financial resources to marketing and promotional campaigns, secure merchandise from sellers on more favorable terms, adopt more aggressive pricing or inventory availability policies and devote substantially more resources to website and systems development than we are able to do. Increased competition may result in reduced operating margins and loss of market share. We may not be able to compete successfully against current and future competitors.

Our Contracts with the U.S. Department of Defense

        We are the exclusive contractor with the DLA Disposition Services for the sale of surplus and scrap assets of the U.S. Department of Defense in the United States. This relationship provides a significant supply of goods that we offer to our buyer base through our online marketplace www.govliquidation.com. In support of these contracts, we provide services in over 1 million square feet of military warehouse space at over 150 military bases throughout the United States.

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        We have two material contracts with DoD under which we acquire, manage and sell government property. The largest contract was originally awarded in June 2001, and was renewed in December 2008, relates to usable surplus property of DoD turned in to the DLA Disposition Services and located in the United States, Puerto Rico and Guam, such as computers, electronics, office supplies, equipment, aircraft parts, clothing and textiles (the "Surplus Contract"). The second contract was awarded in June 2005 and relates to substantially all scrap property of DoD turned into the DLA Disposition Services, such as metals, alloys, and building materials. Property sold under the contracts is "demilitarized" prior to sale and does not include weapons or hazardous materials (the "Scrap Contract").

        The Surplus Contract accounted for 32.8%, 29.9%, and 30.3% of our revenue and 21.8%, 19.9%, and 18.5% of our gross merchandise volume for the fiscal years ended September 30, 2009, 2010 and 2011, respectively. We began operating under the Scrap Contract in August 2005, and it accounted for 21.5%, 25.0%, and 25.5% of our revenue and for 14.2%, 16.7%, and 15.4% of our gross merchandise volume for the fiscal years 2009, 2010 and 2011, respectively. The contracts were awarded in competitive bids conducted by DoD, and we may be required to go through a new competitive bidding process when our existing contracts expire.

        Under the original Surplus Contract, as amended, we were obligated to purchase all DoD surplus property at set prices representing a percentage of the original acquisition cost, which varied depending on the type of surplus property being purchased. We were entitled to 39.5% of the profits of sale (defined as gross proceeds of sale less allowable operating expenses) under the original Surplus Contract. We refer to these disbursement payments to DoD as profit-sharing distributions. Under the Scrap Contract, we acquire scrap property at a per pound price. As a result of these arrangements, we recognize as revenue the gross proceeds from these sales. DoD also reimburses us for actual costs incurred for packing, loading and shipping property under the Scrap and original Surplus Contracts that we are obligated to pick up from non-DoD locations. On November 6, 2008, the DoD extended the original Surplus Contract through December 17, 2008.

        Under the new Surplus Contract, which was executed on December 18, 2008, we are not required to distribute any portion of the profits realized under the Contract, as the new Contract contains a higher fixed percentage price of 1.8% of the DLA Disposition Services' acquisition value to be paid for the property. The DoD has broad discretion to determine what property will be made available for sale to us under the new Surplus Contract and may retrieve or restrict property previously sold to us for national security reasons or if the property is otherwise needed to support the mission of the DoD. The new Surplus Contract has a 36 month term, beginning February 2009, with two 12 month renewal options exercisable by the DoD. The DoD has exercised the first renewal option.

        Under the Scrap Contract, we also have a small business performance incentive based on the number of scrap buyers that are small businesses that would allow us to receive up to an additional 2% of the profit sharing distribution. On May 21, 2007, we entered into a bilateral contract modification under which the DoD agreed to increase the profit-sharing distribution for the Scrap Contract from 20% to 23% effective June 1, 2007, in exchange for our agreement to implement additional inventory assurance processes and procedures with respect to the mutilation of demilitarized scrap property sold. The Scrap Contract base term expires in June 2012, subject to the DoD's right to extend for three additional one-year terms. The DoD has exercised the first renewal option.

        These contracts require us to satisfy export control and other regulatory requirements in connection with sales. Specifically, for specified categories of property sold under the contracts that are subject to export controls, we are required to (1) obtain an end-use certificate from the prospective buyer describing the nature of the buyer's business, describing the expected disposition and specific end-use of the property, and acknowledging the applicability of pertinent export control and economic sanctions laws and (2) confirm that each buyer has been cleared to purchase export-controlled items.

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Applicable export controls include the Export Administration Regulations enforced by the Bureau of Industry and Security ("BIS") of the U.S. Department of Commerce, and the International Traffic In Arms Regulations enforced by the Directorate of Defense Trade Controls ("DDTC") of the U.S. Department of State. Our collection, settlement tools and procedures are designed so that transactions for these categories of property cannot be completed until we receive a completed end-use certificate and confirmation of the buyer's trade security controls clearance. In addition, we do not combine export-controlled property into auction lots with property not subject to export controls.

        We are also prohibited from selling property to persons or entities that appear on lists of restricted or prohibited parties maintained by the United States or other governments, including the Specially Designated Nationals and Blocked Persons List maintained by the Office of Foreign Assets Control of the U.S. Department of Treasury and the Entity List maintained by BIS, the Denied Persons List maintained by BIS and the Debarred Parties List maintained by DDTC. In addition, we are prohibited from selling to countries, regimes, or nationals that are the target of applicable economic sanctions or other embargoes. As part of each sale, we collect information from potential customers that our systems cross reference against a list of restricted or prohibited parties and countries, regimes, or nationals that are the target of economic sanctions or other embargoes in order to comply with these restrictions. Failure to satisfy any of these export control and other regulatory requirements could subject us to civil and criminal penalties and administrative sanctions, including termination of the DLA Disposition Services contracts, forfeiture of profits, suspension of payments, fines and suspension or debarment from doing business with U.S. federal government agencies.

        The Scrap Contract may be terminated by DoD or by us if the rate of return proceeds performance ratios do not exceed specified benchmark ratios for two consecutive quarterly periods and the preceding twelve months. We have never failed to meet the required benchmark ratios during any of the testing periods. DoD also has the right to audit our performance under the contracts. DoD may terminate the contracts and seek other contract remedies in the event of material breaches, provided that it provides us notice and a 30-day opportunity to cure such breaches. The new Surplus Contract contains a provision providing for a mutual termination of the contract for convenience.

Government Regulation

        We are subject to federal and state consumer protection laws, including laws protecting the privacy of customer non-public information and regulations prohibiting unfair and deceptive trade practices. Furthermore, the growth and demand for online commerce has and may continue to result in more stringent consumer protection laws that impose additional compliance burdens on online companies. Many jurisdictions also regulate "auctions" and "auctioneers" and may regulate online auction services. These consumer protection laws and regulations could result in substantial compliance costs and could interfere with the conduct of our business.

        In many states, there is currently great uncertainty about whether or how existing laws governing issues such as property ownership, sales and other taxes, auctions and auctioneering, libel and personal privacy apply to the Internet and commercial online services. These issues may take years to resolve. New legislation or regulation, the application of laws and regulations from jurisdictions whose laws do not currently apply to our business or the application of existing laws and regulations to the Internet and commercial online services could result in significant additional taxes or regulatory restrictions on our business. These potential restrictions could have an adverse effect on our cash flows and results of operations. Furthermore, there is a possibility that we may be subject to significant fines or other payments for any past failures to comply with these requirements.

        In connection with our contracts with the U.S. federal government, the U.S. federal government has the right to audit and review our performance on our government contracts, as well as our compliance with applicable laws and regulations. In addition, we sell merchandise under our

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government contracts, such as scientific instruments, information technology equipment and aircraft parts, that is subject to further government regulations, some of which may require us to obtain an export license in certain circumstances or an end-use certificate from the buyer. In the United States, the sale of this type of merchandise is further regulated by, among others, the U.S. Export Administration Regulations, International Traffic in Arms and the economic sanctions and embargo laws enforced by the Office of Foreign Assets Control Regulations. If a government audit uncovers improper or illegal activities, or if we are alleged to have violated any laws or regulations governing the products we sell under our government contracts, we may be subject to civil and criminal penalties and administrative sanctions, including termination of contracts, denial of export privileges, forfeiture of profits, suspension of payments, fines, and suspension or debarment from doing business with U.S. federal government agencies. See "Risk Factors—Unfavorable findings resulting from a government investigation or audit could subject us to a variety of penalties and sanctions, could negatively impact our future operating results and could force us to adjust previously reported operating results."

Intellectual Property

        We regard our intellectual property, particularly domain names, copyrights and trade secrets, as critical to our success. We rely on a combination of contractual restrictions and common law copyright and trade secret laws to protect our proprietary rights, know-how, information and technology. These contractual restrictions include confidentiality and non-compete provisions. We generally enter into agreements containing these provisions with our employees, contractors and third parties with whom we have strategic relationships. Despite these precautions, it may be possible for a third party to copy or otherwise obtain and use our intellectual property without our authorization. We currently are the registered owners of several Internet domain names, including www.liquidation.com, www.govliquidation.com, www.govdeals.com, www.networkintl.com and www.truckcenter.com. We pursue the registration of our trademarks in the U.S. and internationally. We are pursuing patent protection. Effective patent, copyright, trademarks, trade secret and domain name protection is expensive to maintain and may require litigation to enforce our intellectual property rights. We seek to protect our domain names in an increasing number of jurisdictions and may not be successful in certain jurisdictions.

        We rely on technologies that we license from third parties. These licenses may not continue to be available to us on commercially reasonable terms in the future. As a result, we may be required to obtain substitute technology of lower quality or at greater cost, which could materially adversely affect our business, financial condition, results of operations and cash flows.

        We do not believe that our business, sales policies or technologies infringe the proprietary rights of third parties. However, third parties have in the past and may in the future claim that our business, sales policies or technologies infringe their rights. We expect that participants in the e-commerce market will be increasingly subject to infringement claims as the number of services and competitors in the industry grows. Any such claim, with or without merit, could be time consuming, result in costly litigation or an injunction or require us to enter into royalty or licensing agreements. Such royalty or licensing agreements might not be available on terms acceptable to us, or at all or may be prohibited by an injunction. As a result, any such claim of infringement against us could have a material adverse effect upon our business, financial condition, results of operations and cash flows.

Employees

        As of September 30, 2011, we had 692 U.S. employees, including 95 in sales and marketing, 51 in technology, 50 in customer service, 398 in operations and 98 in finance and administration. In addition, as of that date, we had 2 international employees (located primarily in the United Kingdom) in finance and administration.

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        We believe that we have good relationships with our employees. We have never had a work stoppage, and none of our employees is represented under a collective bargaining agreement or by a union.

Available Information

        Our annual, quarterly and current reports, proxy statements, amendments to those reports and other information are also made available free of charge on our website www.liquidityservicesinc.com, as soon as reasonably practicable after we electronically file these materials with, or furnish them to, the SEC. We use our website as a channel of distribution for material company information. Important information, including news releases, analyst presentations and financial information regarding the Company is routinely posted on and accessible at www.liquidityservices.com.

Cautionary Note Regarding Forward-Looking Statements

        This document contains forward-looking statements. These statements are only predictions. The outcome of the events described in these forward-looking statements is subject to known and unknown risks, uncertainties and other factors that may cause our actual results, levels of activity, performance or achievements to differ materially from any future results, levels of activity, performance or achievements expressed or implied by these forward-looking statements. These risks and other factors include but are not limited to those listed in Part I, Item 1A ("Risk Factors") and in our other filings with the Securities and Exchange Commission (SEC) from time to time. You can identify forward-looking statements by terminology such as "may," "will," "should," "could," "would," "expects," "intends," "plans," "anticipates," "believes," "estimates," "predicts," "potential," "continues" or the negative of these terms or other comparable terminology. Although we believe that the expectations reflected in the forward-looking statements are reasonable, we cannot guarantee future results, levels of activity, performance or achievements. There may be other factors of which we are currently unaware or deem immaterial that may cause our actual results to differ materially from the forward-looking statements.

        All forward-looking statements apply only as of the date of this Annual Report and are expressly qualified in their entirety by the cautionary statements included in this document. Except as may be required by law, we undertake no obligation to publicly update or revise any forward-looking statement to reflect events or circumstances occurring after the date of this Annual Report or to reflect the occurrence of unanticipated events.

Item 1A.    Risk Factors.

        You should carefully consider the risks described below, together with all of the other information in this Annual Report, including the consolidated financial statements and related notes, before making an investment decision with respect to our common stock. If any of the following risks occur, our business, financial condition or operating results could suffer. As a result, the trading price of our common stock could decline and you may lose all or part of your investment in our common stock. The risks and uncertainties described below are not in any particular order and are not the only significant risks we may face. Other events that we do not currently anticipate or that we currently deem immaterial also may affect our results of operations and financial condition.

We depend on contracts with the United States Department of Defense and Wal-Mart for a significant portion of our revenue, and if our relationships with these customers are disrupted, we would experience a significant decrease in revenue and income.

        We have two material contracts with the DLA Disposition Services under which we acquire, manage and sell surplus and scrap property of the DoD. If our relationship with the DoD is impaired,

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we are not awarded new DoD contracts when our current contracts expire, any of our DoD contracts are terminated or the supply of assets under the contracts is significantly decreased, we would experience a significant decrease in revenue and have difficulty generating income. The Surplus Contract accounted for 32.8%, 29.9%, and 30.3% of our revenue and 21.8%, 19.9%, and 18.5% of our GMV for the fiscal years ended September 30, 2009, 2010 and 2011, respectively. The Scrap Contract accounted for 21.5%, 25.0%, and 25.5% of our revenue and 14.2%, 16.7%, and 15.4% of our GMV in fiscal year 2009, 2010 and 2011, respectively. We believe that these contracts will continue to be the source of a significant portion of our revenue and GMV during their respective terms. The Surplus Contract has a three-year base term that expires in February 2012, subject to the DoD's right to extend for two additional one-year terms. The DoD has exercised its first extension option. The Scrap Contract has a seven-year base term that expires in June 2012, subject to the DoD's right to extend for three additional one-year terms. The DoD has exercised its right to extend the performance period of the Scrap Contract by one year to August 2013. The contracts were awarded by the DoD through a competitive bidding process, and we may be required to go through a new competitive bidding process when our existing contracts expire.

        Our Surplus Contract with the DoD allows either party to terminate the contract for convenience. Although our Scrap Contract does not allow the DoD to terminate for convenience, it requires us to meet specified performance benchmarks. The Scrap Contract may be terminated by the DoD if rate of return performance ratios do not exceed specified benchmark ratios for two consecutive quarterly periods and the preceding twelve months. Although, to date, we have never failed to meet the required benchmark ratios during any of the testing periods, we cannot assure you that we will meet the performance benchmarks in the future. The DoD also has the right, after giving us notice and a 30-day opportunity to cure, to terminate the contracts and seek other contract remedies in the event of material breaches.

        In connection with our acquisition of Jacobs Trading, LLC ("Jacobs") on October 3, 2011, we assumed ILJ Enterprises, LLC's rights and obligations under the Master Merchandise Salvage Contract (the "Wal-Mart Agreement") dated as of May 13, 2011 between ILJ Enterprises and Wal-Mart Stores, Inc. We have the exclusive right to purchase certain consumer products from Wal-Mart that have been removed from the sales stream of its retail operations and we believe this agreement will be the source of a significant portion of our revenue and GMV during its term, which expires on May 16, 2016 and thereafter continues on a month to month basis. While we cannot assure you what our revenue will be for any future period, we believe that the Wal-Mart Agreement will account for a significant portion of our revenue and our GMV for the 2012 fiscal year. If we breach the Wal-Mart Agreement, Wal-Mart may unilaterally terminate the agreement. If our relationship with Wal-Mart is impaired or the Wal-Mart Agreement is terminated, our revenue and income would be significantly lower than currently expected.

Unfavorable findings resulting from a government audit or investigation could subject us to a variety of penalties and sanctions, could negatively impact our future operating results and could force us to adjust previously reported operating results.

        The federal government has the right to audit our performance under our government contracts. Any adverse findings from audits or reviews of our performance under our contracts could result in a significant adjustment to our previously reported operating results. For example, some of our DoD contracts provide that we share sales profits with the government. The federal government may disagree with our calculation of the profits realized from the sales of government assets and may require us to increase profit-sharing payments to the government that have been made in the past. If this occurs, our past operating margins may be reduced. The results of an audit by the government could significantly limit the volume and type of merchandise made available to us under our contracts with the DoD, resulting in lower gross merchandise volume, revenue, and profitability for our company.

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If such a government audit uncovers improper or illegal activities, we could be subject to civil and criminal penalties, administrative sanctions and could suffer serious harm to our reputation. Government and law enforcement agencies may also investigate our other activities under our DoD contracts and our company. If such an investigation alleges that we engaged in improper or illegal activities, we could be subject to civil and criminal penalties and administrative sanctions, including termination of contracts, forfeiture of profits, suspension of payments, fines, and suspension or debarment from doing business with U.S. federal government agencies. If, as the result of a government audit or investigation, or for any other reason, we are suspended or debarred from contracting with the federal government generally, or any specific agency, if our reputation or relationship with government agencies is impaired, or if the government otherwise ceases doing business with us or significantly decreases the amount of business it does with us, our revenue and profitability would substantially decrease.

The success of our business depends on our ability to successfully obtain a supply of merchandise for our buyers and to attract and retain active professional buyers to create sufficient demand for our sellers.

        Our ability to increase our revenue and maintain profitability depends on whether we can successfully expand the supply of merchandise available for sale on our online marketplaces and attract and retain active professional buyers to purchase the merchandise. Our ability to attract sufficient quantities of suitable merchandise and new buyers will depend on various factors, some of which are out of our control. These factors include our ability to:

We may not be able to compete successfully against existing or future competitors.

        The online services market for auctioning or liquidating surplus and salvage assets is competitive and growing rapidly. Competitive pressures could affect our ability to attract and retain customers, which could decrease our revenue and negatively affect our operating results. We currently compete with:

        We expect our market to become even more competitive as traditional and online liquidators and auctioneers continue to develop online and offline services for disposition, redeployment and remarketing of surplus and salvage assets. In addition, manufacturers, retailers and government

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agencies may decide to create their own websites to sell their own surplus and salvage assets and those of third parties.

        Some of our other current and potential competitors have longer operating histories, larger client bases, greater brand recognition and significantly greater financial, marketing and other resources than we do. In addition, some of these competitors may be able to devote greater financial resources to marketing and promotional campaigns, secure merchandise from sellers on more favorable terms, adopt more aggressive pricing or inventory availability policies and devote substantially more resources to website and systems development than we are able to do. Increased competition may result in reduced operating margins and loss of market share. We may not be able to compete successfully against current and future competitors.

If we fail to successfully integrate Jacob's businesses and operations and/or fully realize the expected benefits of this acquisition in the expected time frame, our future operating results may be materially adversely affected.

        The Jacob's acquisition is the largest acquisition our company has ever made based on factors such as [revenues, number of employees of the acquired business, number of customers] as well as the purchase price. The success of this acquisition depends, in part, on our ability to successfully integrate the acquired businesses and operations with our other businesses and fully realize the anticipated benefits of the acquisition. If we are not able to achieve these objectives in a cost-effective and timely manner, we may not fully realize the anticipated benefits of the acquisition or it may take us longer to realize the benefits of the acquisition than we expect.

        The integration process could result in the loss of key customers or key employees, increase our operating or other costs, decrease our profit margins or disrupt our other businesses, each of which could impair our ability to achieve the anticipated benefits of the acquisition. Our efforts to integrate the acquired businesses will divert management's attention and resources from our other businesses. Any failure to timely realize the anticipated benefits of the acquisition could have a material adverse effect on our revenues, expenses and operating results.

If we fail to manage our growth effectively, our operating results could be adversely affected.

        We have expanded our operations rapidly since our inception in 1999. Although we currently do not have specific plans for any expansion that would require significant capital investment, in the future we plan to expand our operations further by developing new or complementary services, products, or trading formats and enhancing the breadth and depth of our value-added services. We also plan to continue to expand our sales and marketing, technology and client support organizations. In addition, we will likely need to continue to improve our financial and management controls and our reporting systems and procedures. If we are unable to effectively implement these plans and to otherwise manage our expanding operations, we may not be able to execute our business strategy and our operating results could significantly decrease.

Our quarterly operating results have fluctuated in the past and may do so in the future, which could cause volatility in our stock price.

        Our prior operating results have fluctuated due to changes in our business and the e-commerce industry. Similarly, our future operating results may vary significantly from quarter to quarter due to a variety of factors, many of which are beyond our control. You should not rely on period-to-period comparisons of our operating results as an indication of our future performance. Factors that may affect our quarterly operating results include the following:

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        Our operating results may fall below the expectations of market analysts and investors in some future periods. If this occurs, even temporarily, it could cause volatility in our stock price.

Our operating results depend on our websites, network infrastructure and transaction processing systems. Service interruptions or system failures could negatively affect the demand for our services and our ability to grow our revenue.

        Any system interruptions that affect our websites or our transaction systems could impair the services that we provide to our sellers and buyers. In addition, our systems may be vulnerable to damage from a variety of other sources, including telecommunications failures, power outages, malicious human acts and natural disasters. Improving the reliability and redundancy of our systems may be expensive, reduce our margins and may not be successful in preventing system failures. Our services are also substantially dependent on systems provided by third parties, over whom we have little control. We have occasionally experienced interruptions to our services due to system failures unrelated to our own systems. Any interruptions or failures of our current systems or our ability to communicate with third party systems could negatively affect the demand for our services and our ability to grow our revenue.

If we do not respond to rapid technological changes or upgrade our systems, we could fail to grow our business and our revenue could decrease.

        To remain competitive, we must continue to enhance and improve the functionality and features of our e-commerce business. Although we currently do not have specific plans for any upgrades that would require significant capital investment, in the future we will need to improve and upgrade our technology, transaction processing systems and network infrastructure in order to allow our operations to grow in both size and scope. Without such improvements, our operations might suffer from unanticipated system disruptions, slow transaction processing, unreliable service levels, or impaired quality or delays in reporting accurate financial information, any of which could negatively affect our reputation and ability to attract and retain sellers and buyers. We may also face material delays in introducing new services, products and enhancements. The Internet and the e-commerce industry are rapidly changing. If competitors introduce new products and services using new technologies or if new industry standards and practices emerge, our existing websites and our proprietary technology and

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systems may become obsolete. In addition, the expansion and improvement of our systems and infrastructure may require us to commit substantial financial, operational and technical resources, with no assurance our business will increase. If we fail to respond to technological change or to adequately maintain, expand, upgrade and develop our systems and infrastructure in a timely fashion our ability to grow could be limited and our revenue could decrease.

Shipment of merchandise sold in our marketplaces could be delayed or disrupted by factors beyond our control and we could lose buyers and sellers as a result.

        We rely upon third party carriers such as United Parcel Services, or UPS, for timely delivery of our merchandise shipments. As a result, we are subject to carrier disruptions and increased costs due to factors that are beyond our control, including labor difficulties, inclement weather, terrorist activity and increased fuel costs. In addition, we do not have a long-term agreement with UPS or any other third party carriers, and we cannot be sure that our relationship with UPS will continue on terms favorable to us, if at all. If our relationship with UPS is terminated or impaired or if UPS is unable to deliver merchandise for us, we would be required to use alternative carriers for the shipment of products to our buyers. We may be unable to engage alternative carriers on a timely basis or on terms favorable to us, if at all. Potential adverse consequences include:

        Any failure to receive merchandise at our distribution centers or deliver products to our buyers in a timely and accurate manner could lead to client dissatisfaction and cause us to lose sellers and buyers.

A significant interruption in the operations of our customer service system or our distribution centers could harm our business and operating results.

        Our business depends, to a large degree, on effective customer service and distribution center operations. We currently staff DoD warehouse distribution space, for which we do not incur leasing costs, as well as leased commercial warehouse distribution space. These operations could be harmed by several factors, including any material disruption or slowdown at our distribution centers resulting from labor disputes, changes in the terms of our underlying lease agreements or occupancy arrangements in the case of government provided facilities, telecommunications failures, power or service outages, human error, terrorist attacks, natural disasters or other events. In addition, space provided to us by the DoD could be re-configured or reduced as a result of the DoD's Base Realignment and Closure initiative or other infrastructure reduction initiatives.

If we fail to accurately predict our ability to sell merchandise in which we take inventory risk and credit risk, our margins may decline as a result of lower sale prices from such merchandise.

        Under our profit-sharing and purchase model, we purchase merchandise and assume the risk that the merchandise may sell for less than we paid for it. We assume general and physical inventory and credit risk. These risks are especially significant because some of the goods we sell on our websites are characterized by rapid technological change, obsolescence and price erosion, and because we sometimes make large purchases of particular types of inventory. In addition, we do not receive warranties on the goods we purchase and, as a result, we have to resell or dispose of any returned goods. Historically, the number of disposed goods (which includes returned goods that we have not resold) has been less than 2% of the goods we have purchased. To manage our inventory successfully, we need to maintain

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sufficient buyer demand and sell merchandise for a reasonable financial return. We may miscalculate buyer demand and overpay for the acquired merchandise. In the event that merchandise is not attractive to our buyer base, we may be required to take significant losses resulting from lower sale prices, which could reduce our revenue and margins. For example, under the Surplus Contract, we are obligated to purchase all DoD surplus property at 1.8% of the original acquisition cost, which varies depending on the type of surplus property being purchased. Under the Scrap Contract, we acquire scrap property at a per pound price. Declines in commodity prices may also reduce the profit we are able to realize in our scrap business. For example, we may not be able to sell our inventory for amounts above its cost and we may incur a loss in products we handle for our commercial clients. As we grow our business, we may choose to increase the amount of merchandise we purchase directly from sellers, thus resulting in increased inventory levels and related risk. Any such increase would require the use of additional working capital and subject us to the additional risk of incurring losses on the sale of that inventory.

A protracted global recession could have a material adverse effect on our operating income, financial condition, cash flows and the trading price of our stock.

        A long-term global recession could reduce the demand for our services while decreasing the prices paid in our auctions and increasing our costs, which could adversely affect the results of our operations. For over three years, financial markets have been experiencing volatility and disruption. International efforts to address the current global credit and banking crisis may be unsuccessful in preventing a global recession.

        The current worldwide financial crisis has reduced the availability of liquidity and credit to borrowers. Many lenders and institutional investors have reduced and, in some cases, ceased to provide funding to borrowers. If our buyers and sellers are unable to obtain financing required to fund their operations, demand for our services may be adversely affected. In addition, this market turmoil and tightening of credit have led to an increased level of commercial and consumer delinquencies or defaults, lack of consumer confidence, increased market volatility and widespread reduction of business activity generally, which may also adversely affect demand for our services.

We may be unable to adequately protect or enforce our intellectual property rights, which could harm our reputation and negatively impact the growth of our business.

        We regard our intellectual property, particularly domain names, copyrights and trade secrets, as critical to our success. We rely on a combination of contractual restrictions and copyright and trade secret laws to protect our proprietary rights, know-how, information and technology. Despite these protections, it may be possible for a third party to copy or otherwise obtain and use our intellectual property without authorization or independently develop similar intellectual property.

        We currently are the registered owners of several Internet domain names, including www.liquidation.com, www.govliquidation.com, www.govdeals.com,www.networkintl.com, www.truckcenter.com, and www.secondipity.com. We pursue the registration of our domain names in the U.S. and internationally. We currently do not have any patents or registered copyrights, but we are pursuing patents. Effective patent, copyright, trademark, service mark, trade secret and domain name protection is expensive to maintain and may require litigation. Our competitors may adopt trade names or domain names similar to ours, thereby impeding our ability to promote our marketplaces and possibly leading to client confusion. In addition, we could face trade name or trademark or service mark infringement claims brought by owners of other registered or unregistered trademarks or service marks, including trademarks or service marks that may incorporate variations of our marketplace names. Any claims related to our intellectual property or client confusion related to our marketplaces could damage our reputation and negatively impact the growth of our business.

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Our inability to use software licensed from third parties or our use of open source software under license terms that interfere with our proprietary rights could disrupt our business.

        We use software licensed from third parties, including some software, known as open source software that we use without charge. We currently use the following open source software: Linux (an operating system), MySql (database software), PERL (an interpreter) and Apache (a web server), and we may in the future use additional open source software. In the future, these licenses to third party software may not be available on terms that are acceptable to us, or at all. Our inability to use third-party software could result in disruptions to our business, or delays in the development of future services or enhancements of existing services, which could impair our business. In addition, the terms of certain open source software licenses may require us to provide modified versions of the open source software, which we develop, if any, or any proprietary software that incorporates all or a portion of the open source software, if any, to others on unfavorable license terms that are consistent with the open source license term. If we are required to license our proprietary software in accordance with the foregoing, our competitors and other third parties could obtain access to our intellectual property, which could harm our business.

Assertions that we infringe on intellectual property rights of others could result in significant costs and substantially harm our business and operating results.

        Other parties may assert that we have infringed on their technology or other intellectual property rights. We use internally developed systems and licensed technology to operate our online auction platform and related websites. Third parties could assert intellectual property infringement claims against us based on our internally developed systems or use of licensed third party technology. Third parties also could assert intellectual property infringement claims against parties from whom we license technology. If we are forced to defend against any infringement claims, whether they are with or without merit or are determined in our favor, we may face costly litigation, diversion of technical and management personnel and/or delays in completion of sales. Furthermore, the outcome of a dispute may be that we would need to change technology, develop non-infringing technology or enter into royalty or licensing agreements. A switch to different technology could cause interruptions in our business. Internal development of a non-infringing technology may be expensive and time-consuming, if we are able to successfully develop such technology at all. Royalty or licensing agreements, if required, may be unavailable on terms acceptable to us, or at all. Incurrence of any of these costs could negatively impact our operating results.

If we do not retain our senior management, we may not be able to achieve our business objectives.

        Our future success is substantially dependent on the continued service of our senior management, particularly William P. Angrick, III, our chief executive officer. We do not have key-person insurance on any of our officers or employees. The loss of any member of our existing senior management team could damage key seller relationships, result in the loss of key information, expertise or know-how, lead to unanticipated recruitment and training costs and make it more difficult to successfully operate our business and achieve our business goals.

If we are unable to attract and retain skilled employees, we might not be able to sustain our growth.

        Our future success depends on our ability to continue to attract, retain and motivate highly skilled employees, particularly employees with sales, marketing, operations and technology expertise. Competition for employees in our industry is intense. We have experienced difficulty from time to time in attracting the personnel necessary to support the growth of our business, and we may experience similar difficulties in the future. If we are unable to attract, assimilate and retain employees with the necessary skills, we may not be able to grow our business and revenue.

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We may make acquisitions that require significant resources and could be unsuccessful.

        In the future, we may acquire other businesses, products and technologies to complement our current business. We may not be able to identify, negotiate, finance, complete or integrate any future acquisition successfully. Acquisitions involve a number of risks, including possible adverse effects on our operating results, diversion of management's attention, inability to retain key employees of the acquired business and risks associated with unanticipated events or liabilities, some or all of which could disrupt our business and reduce the likelihood that we will receive the anticipated benefits of the acquisition in the amount or the time frame that we expect.

        Should we be unable to successfully integrate a new business, we could be required either to dispose of the operation or restructure the operation. In either event, our business could be disrupted and we may not achieve the anticipated benefits of the acquisition. In addition, future transactions could result in potentially dilutive issuances of our equity securities, the incurrence of debt, contingent liabilities or amortization of expenses, or write-offs of goodwill, any of which could harm our financial condition and operating results. Future transactions may also require us to obtain additional financing, which may not be available on favorable terms or at all.

We may need additional financing in the future, which may not be available on favorable terms, if at all.

        We may need additional funds to finance our operations, as well as to enhance our services, fund our expansion, respond to competitive pressures or acquire complementary businesses or technologies. However, our business may not generate the cash needed to finance such requirements. If we raise additional funds through the issuance of equity or convertible debt securities, the percentage ownership of our existing stockholders would be reduced, and these securities may have rights, preferences or privileges senior to those of our common stock. If adequate funds are not available or are not available on acceptable terms, our ability to enhance our services, fund our expansion, respond to competitive pressures or take advantage of business opportunities would be significantly limited, and we might need to significantly restrict our operations.

We face legal uncertainties relating to the Internet in general and to the e-commerce industry in particular and may become subject to costly government regulation.

        The laws and regulations related to the Internet and e-commerce are evolving. These laws and regulations relate to issues such as user privacy, freedom of expression, pricing, fraud, quality of products and services, taxation, advertising, intellectual property rights and information security. Laws governing issues such as property ownership, copyrights and other intellectual property issues, taxation, libel and defamation, obscenity and personal privacy could also affect our business. Laws adopted prior to the advent of the Internet may not contemplate or address the unique issues of the Internet and related technologies and it is not clear how they will apply. Current and future laws and regulations could increase our cost of doing business and/or decrease the demand for our services.

Our auction business may be subject to a variety of additional costly government regulations.

        Many states and other jurisdictions have regulations governing the conduct of traditional "auctions" and the liability of traditional "auctioneers" in conducting auctions, which may apply to online auction services. In addition, certain states have laws or regulations that expressly apply to online auction services. We expect to continue to incur costs in complying with these laws and could be subject to fines or other penalties for any failure to comply with these laws. We may be required to make changes in our business to comply with these laws, which could increase our costs, reduce our revenue, cause us to prohibit the listing of certain items, or otherwise adversely affect our financial condition or operating results.

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        In addition, the law regarding the potential liability of an online auction service for the activities of its users is not clear. We cannot assure you that users of our websites will comply with our terms and conditions or with laws and regulations applicable to them and their transactions. It is possible that we may be subject to allegations of civil or criminal liability for any unlawful activities conducted by sellers or buyers. Any costs we incur as a result of any such allegations, or as a result of actual or alleged unlawful transactions using our marketplaces, or in our efforts to prevent any such transactions, may harm our opportunities for future revenue growth. In addition, any negative publicity we receive regarding any such transactions or allegations may damage our reputation, our ability to attract new sellers and buyers and our business.

Certain categories of merchandise sold on our marketplaces are subject to government restrictions.

        We sell merchandise, such as scientific instruments, information technology equipment and aircraft parts, that is subject to export control and economic sanctions laws, among other laws, imposed by the United States and other governments. Such restrictions include the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, and economic sanctions and embargo laws administered by the Office of the Foreign Assets Control Regulations. These restrictions prohibit us from, among other things, selling property to (1) persons or entities that appear on lists of restricted or prohibited parties maintained by the United States or other governments or (2) countries, regimes, or nationals that are the target of applicable economic sanctions or other embargoes. In addition, for specified categories of property sold under our contracts with the DoD, we are required to (1) obtain an end-use certificate from the prospective buyer describing the nature of the buyer's business, describing the expected disposition and specific end-use of the property, and acknowledging the applicability of pertinent export control and economic sanctions laws and (2) confirm that each buyer has been cleared to purchase export-controlled items.

        We may incur significant costs or be required to modify our business to comply with these requirements. If we are alleged to have violated any of these laws or regulations we may be subject to civil and criminal penalties and administrative sanctions, including termination of contracts, forfeiture of profits, suspension of payments, fines, and suspension or debarment from doing business with U.S. federal government agencies. In addition, we could suffer serious harm to our reputation if allegations of impropriety are made against us, whether or not true.

Our business may be harmed if third parties misappropriate our clients' confidential information.

        We retain highly confidential information on behalf of our clients in our systems and databases. Although we maintain security features in our systems, our operations may be susceptible to hacker interception, break-ins and other disruptions. These disruptions may jeopardize the security of information stored in and transmitted through our systems. As the Department of Defense is one of our clients, our systems may be especially targeted by such malicious attackers. We may be required to expend significant capital and other resources to protect against such security breaches or to alleviate problems caused by such breaches. These issues are likely to become more difficult as we expand our operations. If any compromise of our security were to occur, we may lose clients and our reputation, business, financial condition and operating results could be harmed by the misappropriation of confidential client information. The loss of confidential client information could also expose us to the risk of liability and costly litigation. In addition, if there is any perception that we cannot protect our clients' confidential information, we may lose the ability to retain existing clients and attract new clients and our revenue could decline.

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If we fail to comply with increasing levels of regulation relating to privacy, our business could suffer harm.

        We are subject to increasing regulation at the federal, state and international levels relating to privacy and the use of personal user information. In addition, several states have proposed or enacted legislation to limit uses of personal information gathered online or require online services to establish privacy policies. Data protection regulations and enforcement efforts may restrict our ability to collect demographic and personal information from users, which could be costly or harm our marketing efforts. Such regulations, along with increased government or private enforcement, may increase the cost of growing our business and require us to expend significant capital and other resources. Our failure to comply with these federal, state and international laws and regulations could subject us to lawsuits, fines, criminal penalties, statutory damages, adverse publicity and other costs could decrease our profitability.

If one or more states successfully assert that we should collect sales or other taxes on the sale of our merchandise or the merchandise of third parties that we offer for sale on our websites, our business could be harmed.

        We are currently required to collect and remit sales taxes in all states for shipment of goods from our DoD contracts. We also collect and remit sales or other similar taxes in respect of shipments of other goods into states in which we have a substantial presence. In addition, as we grow our business, any new operation in states in which we currently do not collect and remit sales taxes could subject shipments into such states to state sales taxes under current or future laws.

        In October 2007, the federal government extended until November 2014 a ban on state and local governments' imposition of new taxes on Internet access or electronic commerce transactions. This ban does not prohibit federal, state or local authorities from collecting taxes on our income or from collecting taxes that are due under existing tax rules. Unless the ban is further extended, state and local governments may begin to levy additional taxes on Internet access and electronic commerce transactions upon the legislation's expiration. An increase in taxes may make electronic commerce transactions less attractive for merchants and businesses, which could result in a decrease in the level of demand for our services.

        Currently, decisions of the U.S. Supreme Court restrict the imposition of obligations to collect state and local sales and use taxes with respect to sales made over the Internet. However, a number of states, as well as the U.S. Congress, have been considering various initiatives that could limit or supersede the Supreme Court's position regarding sales and use taxes on Internet sales. If any of these initiatives resulted in a reversal of the Supreme Court's current position, we could be required to collect sales and use taxes in states other than states in which we currently collect and remit such taxes. A successful assertion by one or more local, state or foreign jurisdictions that the sale of merchandise by us is subject to sales or other taxes, could subject us to material liabilities and increase our costs of doing business. To the extent that we pass such costs on to our clients, doing so could harm our business and decrease our revenue.

Fraudulent activities involving our websites and disputes relating to transactions on our websites may cause us to lose clients and adversely affect our ability to grow our business.

        We are aware that other companies operating online auction or liquidation services have periodically received complaints of fraudulent activities of buyers or sellers on their websites, including disputes over the quality of goods and services, unauthorized use of credit card and bank account information and identity theft, potential breaches of system security, and infringement of third-party copyrights, trademarks and trade names or other intellectual property rights. We may receive similar complaints if sellers or buyers trading in our marketplaces are alleged to have engaged in fraudulent or

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unlawful activity. In addition, we may suffer losses as a result of purchases paid for with fraudulent credit card data even though the associated financial institution approved payment. In the case of disputed transactions, we may not be able to require users of our services to fulfill their obligations to make payments or to deliver goods. We also may receive complaints from buyers about the quality of purchased goods, requests for reimbursement, or communications threatening or commencing legal actions against us. Negative publicity generated as a result of fraudulent conduct by third parties or the failure to satisfactorily settle disputes related to transactions on our websites could damage our reputation, cause us to lose clients and adversely affect our ability to grow our business.

False or defamatory statements transmitted through our services could harm our reputation and affect our ability to attract clients.

        The law relating to the liability of online services companies for information carried on or disseminated through their services is currently unsettled. Claims could be made against online services companies under both the U.S. and foreign law for defamation, libel, invasion of privacy, negligence, copyright or trademark infringement, or other theories based on the nature and content of the materials disseminated through their services. Our website allows users to make comments regarding the online auction industry in general and other users and their merchandise in particular. Although all such comments are generated by users and not by us, we are aware that claims of defamation or other injury have been made against other companies operating auction services in the past and could be made in the future against us for comments made by users. If we are held liable for information provided by our users and carried on our service, we could be directly harmed and may be forced to implement measures to reduce our liability. This may require us to expend substantial resources or discontinue certain service offerings, which could negatively affect our operating results. In addition, the increased attention focused upon liability issues as a result of these lawsuits and legislative proposals could harm our reputation and affect our ability to attract clients.

Our stock price has been volatile, and your investment in our common stock could suffer a decline in value.

        The current worldwide financial crisis has led to a decline in the overall value of the stock market and increased market volatility. This market turmoil and other broad market and industry factors may adversely affect the market price of our common stock, regardless of our actual operating performance. Other factors that could cause fluctuation in our stock price may include:

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        Volatility in the market price of shares may prevent investors from being able to sell their shares of common stock at prices they view as attractive. In the past, securities class action litigation has often been instituted against companies following periods of volatility in their stock price. This type of litigation could result in substantial costs and divert our management's attention and resources.

Some provisions of our charter, bylaws and Delaware law inhibit potential acquisition bids that you may consider favorable.

        Our corporate documents and Delaware law contain provisions that may enable our board of directors to resist a change in control of our company even if a change in control were to be considered favorable by you and other stockholders. These provisions include:

        These provisions could discourage, delay or prevent a transaction involving a change in control of our company. These provisions could also discourage proxy contests and make it more difficult for you and other stockholders to elect directors of your choosing and cause us to take other corporate actions you desire.

Item 1B.    Unresolved Staff Comments.

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Item 2.    Properties.

        We do not own any real property. We lease the following properties:

Purpose
  Location   Square Feet   Lease Expiration Date
Corporate Headquarters   Washington, D.C.     26,900   September 30, 2019
Administrative   Anaheim, California     4,000   July 31, 2013
Warehouse   Cranbury, New Jersey     153,800   November 30, 2015
Warehouse   Dallas, Texas     128,700   May 31, 2013
Warehouse   Plainfield, Indiana     187,700   April 30, 2014
Warehouse   North Las Vegas, Nevada     102,400   March 31, 2016
Headquarters – DoD   Scottsdale, Arizona     13,500   September 30, 2013.
Warehouse – DoD   Columbus, Ohio     340.000   January 31, 2014
Warehouse – DoD   Oklahoma City, Oklahoma     325,100   September 30, 2012
Headquarters – GD   Montgomery, Alabama     10,300   September 30, 2012
Administrative – GD   Nashville, Tennessee     1,300   January 31, 2012
Administrative – UK   Ware, England     435   March 31, 2012
Headquarters – NI   Houston, Texas     8,500   November 30, 2012
Headquarters – TC   Fontana, California     130,700   May 31, 2018
Warehouse – TC   Blue Mound, Texas     727,500   May 31, 2018
Warehouse – TC   Indianapolis, Indiana     697,000   May 31, 2018
Warehouse – TC   Atlanta, Georgia     479,200   May 31, 2018
Warehouse – TC   Wilmington, Delaware     484,000   May 31, 2018

        Our servers are housed in data centers in Ashburn, Virginia, which is managed by Equinix, Inc., in Phoenix, Arizona, which is managed by Limelight Networks, Inc., in Atlanta, Georgia, which is managed by SunGard, LP, in Houston, Texas, which is managed by Cyrus One, in Los Angeles, California, which is managed by Tierzero, and in Dallas, Texas, which is managed by Equinix, Inc..

Item 3.    Legal Proceedings.

        From time to time, we may become involved in litigation relating to claims arising in the ordinary course of our business. There are no claims or actions pending or threatened against us that, if adversely determined, would in our judgment have a material adverse effect on us.

Item 4.    Removed and Reserved.

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PART II

Item 5.    Market for Registrant's Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities.

Price Range of Common Stock

        Our common stock has been traded on The NASDAQ Stock Market under the symbol LQDT since February 23, 2006. The following table sets forth the intra-day high and low per share bid price of our common stock as reported by The NASDAQ Stock Market for the periods indicated.

Fiscal year ended September 30, 2010
  Low   High  

First Quarter

  $ 7.81   $ 10.67  

Second Quarter

  $ 10.00   $ 12.95  

Third Quarter

  $ 10.09   $ 13.96  

Fourth Quarter

  $ 12.11   $ 16.49  

Fiscal year ended September 30, 2011
             

First Quarter

  $ 13.61   $ 17.32  

Second Quarter

  $ 12.58   $ 17.87  

Third Quarter

  $ 17.61   $ 23.84  

Fourth Quarter

  $ 19.89   $ 36.12  

        As of December 9, 2011, there were approximately 2,600 holders of record of our common stock.

Dividend Policy

        Since becoming a public company on February 22, 2006, we have not paid cash dividends on our stock and currently anticipate that we will continue to retain any future earnings to finance the growth of our business. In addition, the credit agreement we entered into on April 30, 2010 contains restrictions on our ability to pay dividends.

Item 6.    Selected Financial Data.

        You should read the following selected consolidated financial data together with our consolidated financial statements and the related notes, and with "Management's Discussion and Analysis of Financial Condition and Results of Operations," included elsewhere in this Annual Report on Form 10-K. The consolidated statement of operations data for the years ended September 30, 2009, 2010 and 2011 are derived from, and are qualified by reference to, our consolidated financial statements that have been audited by Ernst & Young LLP, an independent registered public accounting firm, and that are included in this Annual Report on Form 10-K. The consolidated statement of operations data for the years ended September 30, 2007 and 2008, and the consolidated balance sheet data as of September 30, 2007, 2008 and 2009 are derived from our audited consolidated financial statements that are not included in this Annual Report on Form 10-K. Certain reclassifications have been made to previously reported financial data to reflect the financial condition, results of operations

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and cash flows of the Company for discontinued operations. See the discussion of discontinued operations in "Note 5" in our accompanying consolidated financial statements.

 
  Year ended September 30,  
 
  2007   2008   2009   2010   2011  
 
  (dollars in thousands, except per share data)
 

Consolidated Statement of Operations Data:

                               

Revenue

  $ 192,037   $ 251,851   $ 219,011   $ 273,015   $ 327,378  

Costs and expenses:

                               
 

Cost of goods sold (excluding amortization)

    46,877     65,612     74,963     109,376     126,395  
 

Profit-sharing distributions

    66,827     89,358     43,722     41,310     49,318  
 

Technology and operations

    30,932     38,568     43,587     45,700     52,178  
 

Sales and marketing

    12,742     16,586     17,438     20,381     23,279  
 

General and administrative

    16,399     20,181     20,138     23,606     26,484  
 

Amortization of contract intangibles

    813     813     813     813     813  
 

Depreciation and amortization

    1,265     1,815     2,662     3,609     4,881  
 

Acquisition and impairment costs

                524     6,702  
                       
   

Total costs and expenses

    175,855     232,933     203,323     245,319     290,050  
                       

Income from continuing operations

    16,182     18,918     15,688     27,696     37,328  

Interest income and other income (expense), net

    2,120     1,445     506     (428 )   (1,190 )
                       

Income from continuing operations before income taxes

    18,302     20,363     16,194     27,268     36,138  

Provision for income taxes

    (7,469 )   (9,079 )   (7,788 )   (12,194 )   (15,459 )
                       

Income from continuing operations

    10,833     11,284     8,406     15,074     20,679  

Income (loss) from discontinued operations

    186     269     (2,687 )   (3,061 )   (12,167 )
                       

Net income

  $ 11,019   $ 11,553   $ 5,719   $ 12,013   $ 8,512  
                       

Basic earnings(loss) per common share:

                               
 

From continuing operations

  $ 0.39   $ 0.40   $ 0.30   $ 0.55   $ 0.75  
 

From discontinued operations

    0.01     0.01     (0.09 )   (0.11 )   (0.44 )
                       

Basic earnings per common share

  $ 0.40   $ 0.41   $ 0.21   $ 0.44   $ 0.31  
                       

Diluted earnings(loss) per common share:

                               
 

From continuing operations

  $ 0.39   $ 0.40   $ 0.30   $ 0.55   $ 0.71  
 

From discontinued operations

    0.00     0.01     (0.09 )   (0.11 )   (0.42 )
                       

Diluted earnings per common share

  $ 0.39   $ 0.41   $ 0.21   $ 0.44   $ 0.29  
                       

Basic weighted average shares outstanding

    27,768,679     27,964,748     27,699,223     27,098,016     27,736,865  
                       

Diluted weighted average shares outstanding

    28,146,923     28,151,878     27,846,693     27,406,883     29,081,933  
                       

Non-GAAP Financial Measures:

                               

EBITDA from continuing operations(1)

  $ 18,260   $ 21,545   $ 19,163   $ 32,117   $ 43,022  

Adjusted EBITDA from continuing operations(1)

    20,203     26,220     25,628     40,532     58,860  

Supplemental Operating Data:

                               

Gross merchandise volume from continuing operations(2)

  $ 226,996   $ 347,583   $ 338,721   $ 416,314   $ 548,552  

Completed transactions(3)

    212,000     372,000     469,000     522,000     475,000  

Total registered buyers(4)

    685,000     999,000     1,202,000     1,403,000     1,604,000  

Total auction participants(5)

    1,115,000     1,751,000     2,118,000     2,247,000     1,936,000  

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  As of September 30,  
 
  2007   2008   2009   2010   2011  
 
  (in thousands)
 

Consolidated Balance Sheet Data

                               

Cash, cash equivalents and short-term investments

  $ 61,609   $ 63,198   $ 64,154   $ 75,939   $ 128,984  

Working capital(6)

    61,762     51,044     59,795     60,064     111,687  

Total assets

    111,142     137,167     138,588     164,904     227,807  

Total liabilities

    29,108     40,797     34,606     52,530     66,394  

Total stockholders' equity

    82,034     96,370     103,982     112,374     161,413  

(1)
EBITDA from continuing operations and adjusted EBITDA from continuing operations are supplemental non-GAAP financial measures. GAAP means generally accepted accounting principles in the United States. EBITDA is equal to net income less (a) interest income and other income, net; and plus (b) provision for income taxes; (c) amortization of contract intangibles; and (d) depreciation and amortization. Our definition of adjusted EBITDA is different from EBITDA because we further adjust EBITDA for stock based compensation expense and acquisition costs such as transaction expenses. For a description of our use of EBITDA and adjusted EBITDA and a reconciliation of these non-GAAP financial measures to net income, see the discussion and related table below.

(2)
Gross merchandise volume is the total sales value of all merchandise sold through our marketplaces during a given period.

(3)
Completed transactions represent the number of auctions in a given period from which we have recorded revenue.

(4)
Total registered buyers as of a given date represent the aggregate number of persons or entities who have registered on one of our marketplaces.

(5)
For each auction we manage, the number of auction participants represents the total number of registered buyers who have bid one or more times on that auction, and total auction participants for a given period is the sum of the auction participants in each auction conducted during that period.

(6)
Working capital is defined as current assets minus current liabilities.

        We believe non-GAAP financial measures, such as EBITDA and adjusted EBITDA, are useful to an investor in evaluating our performance for the following reasons:

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        Our management uses EBITDA and adjusted EBITDA:

        EBITDA and adjusted EBITDA as calculated by us are not necessarily comparable to similarly titled measures used by other companies. In addition, EBITDA and adjusted EBITDA: (a) do not represent net income or cash flows from operating activities as defined by GAAP; (b) are not necessarily indicative of cash available to fund our cash flow needs; and (c) should not be considered as alternatives to net income, income from operations, cash provided by operating activities or our other financial information as determined under GAAP.

        We prepare adjusted EBITDA by adjusting EBITDA to eliminate the impact of items that we do not consider indicative of our core operating performance. You are encouraged to evaluate these adjustments and the reasons we consider them appropriate for supplemental analysis. As an analytical tool, adjusted EBITDA is subject to all of the limitations applicable to EBITDA. Our presentation of adjusted EBITDA should not be construed as an implication that our future results will be unaffected by unusual or non-recurring items.

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        The table below reconciles income from continuing operations to EBITDA and adjusted EBITDA from continuing operations for the periods presented.

 
  Year ended September 30,  
 
  2007   2008   2009   2010   2011  
 
  (in thousands)
 

Income from continuing operations

  $ 10,833   $ 11,284   $ 8,406   $ 15,074   $ 20,679  

Interest (income) and other (income) expense, net

    (2,120 )   (1,445 )   (506 )   428     1,190  

Provision for income taxes

    7,469     9,079     7,788     12,194     15,459  

Amortization of contract intangibles

    813     813     813     813     813  

Depreciation and amortization

    1,265     1,815     2,662     3,609     4,881  
                       

EBITDA from continuing operations

    18,260     21,546     19,163     32,118     43,022  

Stock compensation expense

    1,943     4,674     6,465     7,891     9,136  

Acquisition costs

                524     6,702  
                       

Adjusted EBITDA from continuing operations

  $ 20,203   $ 26,220   $ 25,628   $ 40,533   $ 58,860  
                       

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Item 7.    Management's Discussion and Analysis of Financial Condition and Results of Operations.

        The following discussion should be read in conjunction with our consolidated financial statements and related notes and the information contained under the caption "Selected Consolidated Financial Data" contained elsewhere in this Annual Report on Form 10-K. This discussion contains forward-looking statements that involve risks and uncertainties. Our actual results could vary materially from those indicated, implied, or suggested by these forward-looking statements as a result of many factors, including those discussed under "Risk Factors" and elsewhere in this Annual Report on Form 10-K.

Overview

        About us.    We are a leading online auction marketplace for surplus and salvage assets. We enable buyers and sellers to transact in an efficient, online auction environment offering over 500 product categories. Our marketplaces provide professional buyers access to a global, organized supply of surplus and salvage assets presented with customer focused information including digital images and other relevant product information along with services to efficiently complete the transaction. Additionally, we enable our corporate and government sellers to enhance their financial return on excess assets by providing liquid marketplaces and value-added services that integrate sales and marketing, logistics and transaction settlement into a single offering. We organize our products into categories across major industry verticals such as consumer electronics, general merchandise, apparel, scientific equipment, aerospace parts and equipment, technology hardware, energy equipment, industrial capital assets, fleet and transportation equipment and specialty equipment. Our online auction marketplaces are www.liquidation.com, www.govliquidation.com, www.govdeals.com, www.networkintl.com, www.truckcenter.com, and www.secondipity.com.

        We believe our ability to optimize our clients' net recovery and supply chain for surplus and salvage assets generates a continuous flow of goods from our corporate and government sellers. This valuable and reliable flow of goods in turn attracts an increasing number of professional buyers to our marketplaces. During fiscal year 2011, the number of registered buyers grew from approximately 1,403,000 to approximately 1,604,000, or 14.3%. During the past three fiscal years, we have conducted over 1,467,000 online transactions generating approximately $1.3 billion in gross merchandise volume or GMV. Approximately 74% of our initial listings have resulted in a completed cash sale during the past three fiscal years. We believe the continuous flow of goods in our marketplaces attracts a growing buyer base which creates a virtual cycle for our buyers and sellers.

        Our history.    We were incorporated in Delaware in November 1999 as Liquidation.com, Inc. and commenced operations in early 2000. During 2000, we developed our online auction marketplace platform and began auctioning merchandise primarily for small commercial sellers and government agencies. In 2001, we changed our name to Liquidity Services, Inc. In June 2001, we were awarded our first major DoD contract, the Surplus Contract. Under this agreement, we became the exclusive contractor with the DLA Disposition Services, for the sale of usable DoD surplus assets in the United States. In June 2005, we were awarded an additional exclusive contract with the DLA Disposition Services to manage and sell substantially all DoD scrap property. During 2005, we opened our first distribution center in Dallas, Texas and began serving the reverse logistics needs of top 100 retailers.

        Recent initiatives.    On October 1, 2011, LSI completed its acquisition of the assets of Jacobs Trading, LLC (Jacobs). The acquisition price includes an upfront cash payment of $80.0 million, a seller subordinated 5% unsecured note of $40.0 million, stock consideration of $24.5 million and an earn-out payment. Under the terms of the agreement, the earn-out is based on EBITDA earned by Jacobs during the trailing 12 months ending December 31, 2012 and 2013. The Company's estimate of the fair value of the earn-out as of October 1, 2011 is $8.2 million out of a possible total earn out payment of $30.0 million. Jacobs is a leading remarketer for the sale of surplus and returned consumer goods.

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Jacobs conducts its sales on a purchase model basis using its marketplace, an extensive global buyer base and product domain expertise.

        On June 1, 2011, the Company acquired the assets of Truckcenter.com, LLC. (TC) for approximately $15,989,000. The acquisition price includes an upfront cash payment of $9,000,000 and an earn-out payment. Under the terms of the agreement, the earn-out is based on EBITDA earned by TC during the trailing 12 months ending August 31, 2012, and the revenue earned by TC during each of the two 12 month periods after the closing date of the acquisition through May 31, 2013. The Company's estimate of the fair value of the earn-out as of September 30, 2011 is $6,989,000 out of a possible total earn out payment of $9,000,000. TC is a leading marketplace for the sale of idle, surplus and used fleet and transportation equipment. TC conducts sales of client assets on a consignment basis using its marketplace, an extensive global buyer base and product domain expertise.

        Our revenue.    We generate substantially all of our revenue by retaining a percentage of the proceeds from the sales we manage for our sellers. We offer our sellers three primary transaction models: a profit-sharing model, a consignment model and a purchase model.

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        We collect a buyer premium on substantially all of our transactions under all of our transaction models. Buyer premiums are calculated as a percentage of the sale price of the merchandise sold and are paid to us by the buyer. Buyer premiums are in addition to the price of the merchandise. Under our profit-sharing model, we typically share the proceeds of any buyer premiums with our sellers.

        Industry trends.    We believe there are several industry trends impacting the growth of our business including: (1) the increase in the adoption of the Internet by businesses to conduct e-commerce both in the United States and abroad; (2) product innovation in the retail supply chain that has increased the pace of product obsolescence and, therefore, the supply of surplus assets; (3) the increase in the volume of returned merchandise handled by both online and offline retailers; (4) the increase in government regulations necessitating verifiable recycling and remarketing of surplus assets; (5) the increase in outsourcing by corporate and government organizations of disposition activities for surplus and end-of-life assets; and (6) as a result of the economic downturn, an increase in buyer demand for surplus merchandise as consumers trade down by purchasing less expensive goods and seek greater value from their purchases, which results in lower per unit prices and margins in our retail goods business.

Our Seller Agreements

        Our DoD agreements.    We have three contracts with the DoD pursuant to which we acquire, manage and sell excess property:

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        Under the original Surplus Contract, as amended, we were obligated to purchase all DoD surplus property at set prices representing a percentage of the original acquisition cost, which varied depending on the type of surplus property being purchased. We were entitled to 39.5% of the profits of sale (defined as gross proceeds of sale less allowable operating expenses) under the original Surplus Contract. Under the Scrap Contract, we acquire scrap property at a per pound price. We refer to these disbursement payments to DoD as profit-sharing distributions. As a result of these arrangements, we recognize as revenue the gross proceeds from these sales. DoD also reimburses us for actual costs incurred for packing, loading and shipping property under the Scrap and original Surplus Contracts that we are obligated to pick up from non-DoD locations.

        Under the new Surplus Contract, which was executed on December 18, 2008, we are not required to distribute any portion of the profits realized under the Contract, as the new Contract contains a higher fixed percentage price of 1.8% of the DLA Disposition Services' acquisition value to be paid for the property. The DoD has broad discretion to determine what property will be made available for sale to us under the new Surplus Contract and may retrieve or restrict property previously sold to us for national security reasons or if the property is otherwise needed to support the mission of the DoD.

        Under the Scrap Contract, we also have a small business performance incentive based on the number of scrap buyers that are small businesses that would allow us to receive up to an additional 2% of the profit sharing distribution. On May 21, 2007, we entered into a bilateral contract modification under which the DoD agreed to increase the profit-sharing distribution for the Scrap Contract from 20% to 23% effective June 1, 2007, in exchange for our agreement to implement additional inventory assurance processes and procedures with respect to the mutilation of demilitarized scrap property sold.

Our commercial agreements.    During fiscal year 2010, we had over 500 corporate clients who each sold in excess of $10,000 of surplus and salvage assets in our marketplaces. Our agreements with these clients are generally terminable at will by either party.

Key Business Metrics

        Our management periodically reviews certain key business metrics for operational planning purposes and to evaluate the effectiveness of our operational strategies, allocation of resources and our capacity to fund capital expenditures and expand our business. These key business metrics include:

        Gross merchandise volume.    Gross merchandise volume, or GMV, is the total sales value of all merchandise sold through our marketplaces during a given period. We review GMV because it provides a measure of the volume of goods being sold in our marketplaces and thus the activity of those marketplaces. GMV also provides a means to evaluate the effectiveness of investments that we have made and continue to make, including in the areas of customer support, value-added services, product development, sales and marketing, and operations. The GMV of goods sold in our marketplace during fiscal year 2011 totaled $558.5 million.

        Completed transactions.    Completed transactions represents the number of auctions in a given period from which we have recorded revenue. Similar to GMV, we believe that completed transactions is a key business metric because it provides an additional measurement of the volume of activity flowing through our marketplaces. During the fiscal year ended September 30, 2011, we completed approximately 475,000 transactions.

        Total registered buyers.    We grow our buyer base through a combination of marketing and promotional efforts. A person becomes a registered buyer by completing an online registration process on one of our marketplaces. As part of this process, we collect business and personal information,

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including name, title, company name, business address and contact information, and information on how the person intends to use our marketplaces. Each prospective buyer must also accept our terms and conditions of use. Following the completion of the online registration process, we verify each prospective buyer's e-mail address and confirm that the person is not listed on any banned persons list maintained internally or by the U.S. federal government. After the verification process, which is completed generally within 24 hours, the registration is approved and activated and the prospective buyer is added to our registered buyer list.

        Total registered buyers, as of a given date, represents the aggregate number of persons or entities who have registered on one of our marketplaces. We use this metric to evaluate how well our marketing and promotional efforts are performing. Total registered buyers excludes duplicate registrations, buyers who are suspended from utilizing our marketplaces and those buyers who have voluntarily removed themselves from our registration database. In addition, if we become aware of registered buyers that are no longer in business, we remove them from our database. As of September 30, 2011, we had approximately 1,604,000 registered buyers.

        Total auction participants.    For each auction we manage, the number of auction participants represents the total number of registered buyers who have bid one or more times in that auction. As a result, a registered buyer who bids, or participates, in more than one auction is counted as an auction participant in each auction in which he or she participates. Thus, total auction participants for a given period is the sum of the auction participants in each auction conducted during that period. We use this metric to allow us to compare our online auction marketplaces to our competitors, including other online auction sites and traditional on-site auctioneers. In addition, we measure total auction participants on a periodic basis to evaluate the activity level of our base of registered buyers and to measure the performance of our marketing and promotional efforts. For the fiscal year ended September 30, 2011, approximately 1,936,000 total auction participants participated in auctions on our marketplaces.

Critical Accounting Estimates

        Our discussion and analysis of our financial condition and results of operations are based upon our consolidated financial statements, which have been prepared in accordance with GAAP. The preparation of these consolidated financial statements requires us to make estimates and judgments that affect the reported amounts of assets, liabilities, revenue and expenses, and related disclosure of contingent assets and liabilities. A "critical accounting estimate" is one which is both important to the portrayal of our financial condition and results and requires management's most difficult, subjective or complex judgments, often as a result of the need to make estimates about the effect of matters that are inherently uncertain. We continuously evaluate our critical accounting estimates. We base our estimates on historical experience and on various other assumptions that are believed to be reasonable under the circumstances, the results of which form the basis for making judgments about the carrying values of assets and liabilities that are not readily apparent from other sources. Actual results may differ from these estimates under different assumptions or conditions.

Revenue recognition.    For transactions in our online marketplaces, which generate substantially all of our revenue, we recognize revenue when all of the following criteria are met:

        Substantially all of our sales are recorded subsequent to payment authorization being received, utilizing credit cards, wire transfers and PayPal, an Internet based payment system, as methods of

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payments. As a result, we are not subject to significant collection risk, as goods are generally not shipped before payment is received.

        Revenue is also evaluated for reporting revenue of gross proceeds as the principal in the arrangement or net of commissions as an agent. In arrangements in which we are deemed to be the primary obligor, bear physical and general inventory risk, and credit risk, we recognize as revenue the gross proceeds from the sale, including buyer's premiums. Arrangements in which we act as an agent or broker on a consignment basis, without taking general or physical inventory risk, revenue is recognized based on the sales commissions that are paid to us by the sellers for utilizing our services; in this situation, sales commissions represent a percentage of the gross proceeds from the sale that the seller pays to us upon completion of the transaction.

        We have evaluated our revenue recognition policy related to sales under our profit-sharing model and determined it is appropriate to account for these sales on a gross basis. The following factors were most heavily relied upon in our determination:

        Business Combinations.    The Company recognizes all of the assets acquired, liabilities assumed, contractual contingencies, and contingent consideration at their fair value on the acquisition date. Acquisition-related costs are recognized separately from the acquisition and expensed as incurred. Generally, restructuring costs incurred in periods subsequent to the acquisition date are expensed when incurred. Subsequent changes to the purchase price (i.e., working capital adjustments) or other fair value adjustments determined during the measurement period are recorded as an adjustment to goodwill. All subsequent changes to a valuation allowance or uncertain tax position that relate to the acquired company and existed at the acquisition date that occur both within the measurement period and as a result of facts and circumstances that existed at the acquisition date are recognized as an adjustment to goodwill. All other changes in valuation allowances are recognized as a reduction or increase to income tax expense or as a direct adjustment to additional paid-in capital as required.

        Valuation of goodwill and other intangible assets.    We identify and value intangible assets that we acquire in business combinations, such as customer arrangements, customer relationships and non-compete agreements, that arise from contractual or other legal rights or that are capable of being separated or divided from the acquired entity and sold, transferred, licensed, rented or exchanged. The fair value of identified intangible assets is based upon an estimate of the future economic benefits

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expected to result from ownership, which represents the amount at which the assets could be bought or sold in a current transaction between willing parties, that is, other than in a forced or liquidation sale.

        We test our goodwill and other intangible assets for impairment annually or more frequently if events or circumstances indicate impairment may exist. Examples of such events or circumstances could include a significant change in business climate or a loss of significant customers. We apply a two-step fair value-based test to assess goodwill for impairment. The first step compares the fair value of a reporting unit to its carrying amount, including goodwill. If the carrying amount of the reporting unit exceeds its fair value, the second step is then performed. The second step compares the carrying amount of the reporting unit's goodwill to the fair value of the goodwill. If the fair value of the goodwill is less than the carrying amount, an impairment loss would be recorded in our statements of operations. Intangible assets with definite lives are amortized over their estimated useful lives and are also reviewed for impairment if events or changes in circumstances indicate that their carrying amount may not be realizable.

        Our management makes certain estimates and assumptions in order to determine the fair value of net assets and liabilities, including, among other things, an assessment of market conditions, projected cash flows, cost of capital and growth rates, which could significantly impact the reported value of goodwill and other intangible assets. Estimating future cash flows requires significant judgment, and our projections may vary from cash flows eventually realized. The valuations employ a combination of present value techniques to measure fair value, corroborated by comparisons to estimated market multiples. These valuations are based on a discount rate determined by our management to be consistent with industry discount rates and the risks inherent in our current business model.

        We cannot predict the occurrence of certain future events that might adversely affect the reported value of goodwill and other intangible assets, which totaled $43.5 million at September 30, 2011. Such events may include strategic decisions made in response to economic and competitive conditions, the impact of the economic environment on our base of buyers and sellers or material negative changes in our relationships with material customers.

        Income taxes.    We account for income taxes using the asset and liability approach for measuring deferred taxes based on temporary differences between the financial statement and income tax bases of assets and liabilities existing at each balance sheet date using enacted tax rates for the years in which the taxes are expected to be paid or recovered. A valuation allowance is provided to reduce the deferred tax assets to a level that we believe will more likely than not be realized. The resulting net deferred tax asset reflects management's estimate of the amount that will be realized.

        We provide for income taxes based on our estimate of federal and state tax liabilities. These estimates include, among other items, effective rates for state and local income taxes, estimates related to depreciation and amortization expense allowable for tax purposes, and the tax deductibility of certain other items. Our estimates are based on the information available to us at the time we prepare the income tax provision. We generally file our annual income tax returns several months after our fiscal year-end. Income tax returns are subject to audit by federal, state and local governments, generally years after the returns are filed. These returns could be subject to material adjustments or differing interpretations of the tax laws.

        We apply the authoritative guidance related to uncertainty in income taxes. The Company has concluded that there were no uncertain tax positions identified during its analysis.

        Stock-based compensation.    We recognize in the statements of operations all share-based payments to employees, including grants of employee stock options, to be recognized in the income statement based on their estimated fair values. We use the Black-Scholes option pricing model to estimate the fair values of share-based payments.

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        The above list is not intended to be a comprehensive list of all of our accounting estimates. In many cases, the accounting treatment of a particular transaction is specifically dictated by GAAP, with little need for management's judgment in their application. There are also areas in which management's judgment in selecting any available alternative would not produce a materially different result. See our audited financial statements and related notes, which contain accounting policies and other disclosures required by GAAP.

Components of Revenue and Expenses

        Revenue.    We generate substantially all of our revenue from sales of merchandise held in inventory and by retaining a percentage of the proceeds from the sales. Our revenue recognition practices are discussed in more detail in the section above entitled "Critical Accounting Estimates."

        Cost of goods sold (excluding amortization).    Cost of goods sold includes the costs of purchasing and transporting property for auction, as well as credit card transaction fees.

        Profit-sharing distributions.    Our Scrap and original Surplus Contracts with the DoD have been structured as profit-sharing arrangements in which we purchase and take possession of all goods we receive from the DoD at a contractual percentage of the original acquisition cost of those goods. After deducting allowable operating expenses, we disburse to the DoD on a monthly basis a percentage of the profits of the aggregate monthly sales. We retain the remaining percentage of these profits after the DoD's disbursement. We refer to these disbursement payments to the DoD as profit-sharing distributions.

        Technology and operations.    Technology expenses consist primarily of personnel costs related to our programming staff who develop and deploy new marketplaces and continuously enhance existing marketplaces. These personnel also develop and upgrade the software systems that support our operations, such as sales processing. Because our marketplaces and support systems require frequent upgrades and enhancements to maintain viability, we have determined that the useful life for substantially all of our internally developed software is less than one year. As a result, we expense these costs as incurred.

        Operations expenses consist primarily of operating costs, including buyer relations, shipping logistics and distribution center operating costs.

        Sales and marketing.    Sales and marketing expenses include the cost of our sales and marketing personnel as well as the cost of marketing and promotional activities. These activities include online marketing campaigns such as paid search advertising.

        General and administrative.    General and administrative expenses include all corporate and administrative functions that support our operations and provide an infrastructure to facilitate our future growth. Components of these expenses include executive management and staff salaries, bonuses and related taxes and employee benefits; travel; headquarters rent and related occupancy costs; and legal and accounting fees. The salaries, bonus and employee benefits costs included as general and administrative expenses are generally more fixed in nature than our operating expenses and do not vary directly with the volume of merchandise sold through our marketplaces.

        Amortization of contract intangibles.    Amortization of contract intangibles expense consists of the amortization of our Scrap Contract award during June 2005. This contract required us to purchase the rights to operate the scrap operations of the DoD during the seven year base term of the contract. The intangible asset created from the $5.7 million purchase is being amortized over 84 months on a straight-line basis. The amortization period is correlated to the base term of the contract, exclusive of renewal periods.

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        Depreciation and amortization.    Depreciation and amortization expenses consist primarily of the depreciation and amortization of amounts recorded in connection with the purchase of furniture, fixtures and equipment and amortization of intangible assets from our acquisitions.

        Acquisition costs.    Acquisition costs consist of expenses incurred to complete a business combination and adjustments to the fair value of earn-outs.

        Interest income and other income (expense), net.    Interest income and other income (expense), net consists primarily of interest income on cash and short-term investments and interest expense on borrowings under our notes payable and realized gains or losses on short-term investments.

        Income taxes.    During fiscal years 2009, 2010 and 2011, we had an effective income tax rate for continuing operations of approximately 48%, 45% and 43%, respectively, which included federal, state and foreign income taxes. We estimate that our future effective income tax rate will be approximately 42%, which is comprised of (1) approximately 35% for federal taxes, (2) approximately 6% for state taxes, and (3) approximately 1% for book and tax differences including stock based compensation expenses, primarily related to employee stock options, which are currently expensed in our financial statements but are not deductable for tax purposes until they are exercised.

Results of Operations

        The following table sets forth, for the periods indicated, selected statement of operations data expressed as a percentage of revenue. These results of operations for the years ended September 30, 2010 and 2009 have been recast so that the basis of presentation is consistent with that of the results of operations for the year ended September 30, 2011. This recast reflects the financial condition, results of operations and cash flows of Liquidity Services, Ltd., as discontinued operations.

 
  Year ended September 30,  
 
  2009   2010   2011  

Revenue

    100.0 %   100.0 %   100.0 %

Costs and expenses:

                   
 

Cost of goods sold (excluding amortization)

    34.2     40.1     38.6  
 

Profit-sharing distributions

    20.0     15.1     15.1  
 

Technology and operations

    19.9     16.7     15.9  
 

Sales and marketing

    7.9     7.5     7.1  
 

General and administrative

    9.2     8.7     8.1  
 

Amortization of contract intangibles

    0.4     0.3     0.3  
 

Depreciation and amortization

    1.2     1.3     1.4  
 

Acquisition costs

        0.1     2.1  
               
   

Total costs and expenses

    92.8     89.8     88.6  
               

Income from continuing operations

    7.2     10.2     11.4  

Interest income and other income (expense), net

    0.2     (0.2 )   (0.4 )
               

Income from continuing operations before provision for income taxes

    7.4     10.0     11.0  

Provision for income taxes

    (3.6 )   (4.5 )   (4.7 )
               

Income from continuing operations

    3.8 %   5.5 %   6.3 %
               

Year Ended September 30, 2011 Compared to Year Ended September 30, 2010

        Revenue.    Revenue increased $54.4 million, or 19.9%, to $327.4 million for the year ended September 30, 2011 from $273.0 million for the year ended September 30, 2010. This increase was

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primarily due to (1) a 20.0% increase, or $14.4 million, in our scrap business, which utilizes the profit sharing model, as a result of increasing commodity prices and a higher mix of high value metals; (2) a 20.1% increase, or $18.3 million, in our U.S. commercial business as a result of several new purchase model programs for large retailers; (3) a 19.1% increase, or $16.4 million, in our surplus business, as a result of increasing property flow from the DoD and a higher mix of high value capital assets such as rolling stock, and (4) an increase of 24.4% or $5.8 million in our consignment business due in part to the acquisitions of Network International, completed on June 15, 2010, and TruckCenter.com, completed on June 1, 2011. The amount of GMV transacted through our marketplaces increased $132.2 million, or 31.8%, to $548.6 million for the year ended September 30, 2011 from $416.3 million for the year ended September 30, 2010, primarily due to (1) the growth in our U.S. commercial and DoD businesses discussed above; (2) a 30.4% increase, or $26.0 million, in our state and local government business, which utilizes the consignment model; and (3) the acquisitions of Network International and TruckCenter.com, which both utilize the consignment model.

        Cost of goods sold (excluding amortization).    Cost of goods sold (excluding amortization) increased $17.0 million, or 15.5%, to $126.4 million for the year ended September 30, 2011 from $109.4 million for the year ended September 30, 2010, primarily due to the expenses associated with our U.S. commercial marketplaces as a result of the growth discussed above, which primarily utilizes the purchase model. As a percentage of revenue, cost of goods sold (excluding amortization) decreased to 38.6% in fiscal 2011 compared to 40.1% in fiscal 2010, primarily due to the acquisitions of Network International and TruckCenter.com which utilize the consignment model.

        Profit-sharing distributions.    Profit-sharing distributions increased $8.0 million, or 19.4%, to $49.3 million for the year ended September 30, 2011 from $41.3 million for the year ended September 30, 2010. These increases were primarily due to the growth in our DoD scrap business discussed above. As a percentage of revenue, profit-sharing distributions remained constant at 15.1% in fiscal 2011 and fiscal 2010.

        Technology and operations expenses.    Technology and operations expenses increased $6.5 million, or 14.2%, to $52.2 million for the year ended September 30, 2011 from $45.7 million for the year ended September 30, 2010, primarily due to increases in staff, outsourced processing labor and temporary wages, including stock based compensation, and consultant fees associated with technology infrastructure projects. As a percentage of revenue, these expenses decreased to 15.9% in fiscal 2011 from 16.7% in fiscal 2010, primarily due to the increase in revenue, while leveraging our fixed costs, such as programming staff and distribution centers.

        Sales and marketing expenses.    Sales and marketing expenses increased $2.9 million, or 14.2%, to $23.3 million for the year ended September 30, 2011 from $20.4 million for the year ended September 30, 2010, primarily due to increases in staff wages, including stock based compensation, to support the growth discussed above, as well as the acquisitions of Network International and TruckCenter.com. As a percentage of revenue, these expenses decreased to 7.1% in fiscal 2011 from 7.5% in fiscal 2010, primarily due to the increase in revenue while leveraging our fixed costs, such as marketing staff.

        General and administrative expenses.    General and administrative expenses increased $2.9 million, or 12.1%, to $26.5 million for the year ended September 30, 2011 from $23.6 million for the year ended September 30, 2010, primarily due to expenses of $1.4 million associated with increases in staff wages and stock based compensation and expenses of $1.5 million associated with increases in general corporate expenses. As a percentage of revenue, these expenses decreased to 8.1% in fiscal 2011 from 8.7% in fiscal 2010, primarily due to the increase in revenue while leveraging our fixed costs, such as corporate staff.

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        Amortization of contract intangibles.    Amortization of contract intangibles was consistent at $0.8 million for the year ended September 30, 2011 and 2010, as a result of our Scrap Contract award during June 2005. This contract required us to purchase the rights to operate the scrap operations of the DoD during the seven year base term of the contract. The intangible asset created from the $5.7 million purchase is being amortized over 84 months on a straight line basis, which began in August 2005.

        Depreciation and amortization expenses.    Depreciation and amortization expenses increased $1.3 million, or 35.3%, to $4.9 million for the year ended September 30, 2011 from $3.6 million for the year ended September 30, 2010, primarily due to additional depreciation expense resulting from the purchase of $4.8 million of property and equipment during fiscal year ended September 30, 2011.

        Acquisition costs.    Acquisition costs increased $6.2 million, or 1,179.9%, to $6.7 million for the year ended September 30, 2011 from $0.5 million for the year ended September 30, 2010, primarily due to the $4.7 million increase in the fair value of the earn out for Network International, $1.7 million for the acquisition of Jacobs Trading, and $0.2 million for the acquisition of TruckCenter.com.

        Interest income and other income (expense), net.    Interest income and other income (expense), net, increased $0.8 million, or 177.6%, to $1.2 million for the year ended September 30, 2011 from $0.4 million for the year ended September 30, 2010, primarily due to an increase in other expense.

        Provision for income tax expense.    Income tax expense increased $3.3 million, or 27.0%, to $15.5 million for the year ended September 30, 2011 from $12.2 million for the year ended September 30, 2010, primarily due to the increase in income before provision for income taxes from continuing operations.

        Income from continuing operations.    Income from continuing operations increased $5.6 million, or 37.1%, to $20.7 million for the year ended September 30, 2011 from $15.1 million for the year ended September 30, 2010, for the reasons noted above.

        Discontinued operations.    The Company substantially liquidated its UK subsidiary in fiscal year 2011, recording a $17.5 million goodwill impairment (inclusive of currency translation adjustments previously recorded in other comprehensive income), a $9.2 million worthless stock deduction tax benefit, and a $1.8 million foreign currency translation tax benefit. See Note 5 to our consolidated financial statements.

        Net income.    Net income decreased $3.5 million, or 29.1%, to $8.5 million for the year ended September 30, 2011 from $12.0 million for the year ended September 30, 2010 for the reasons noted above.

Year Ended September 30, 2010 Compared to Year Ended September 30, 2009

        Revenue.    Revenue increased $54.0 million, or 24.7%, to $273.0 million for the year ended September 30, 2010 from $219.0 million for the year ended September 30, 2009. This increase was primarily due to (1) a 41.5% increase, or $21.0 million, in our scrap business, which utilizes the profit sharing model, as a result of increasing commodity prices and a higher mix of high value metals; (2) a 29.1% increase, or $24.1 million, in our U.S. commercial business as a result of several new purchase model programs for large retailers; and (3) a 10.8% increase, or $8.3 million, in our surplus business, as a result of increasing property flow from the DoD and a higher mix of high value capital assets such as rolling stock. The amount of GMV transacted through our marketplaces increased $77.6 million, or 22.9%, to $416.3 million for the year ended September 30, 2010 from $338.7 million for the year ended September 30, 2009, primarily due to (1) the growth in our U.S. commercial and DoD businesses discussed above; (2) a 12.1% increase, or $9.3 million, in our state and local government business,

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which utilizes the consignment model; and (3) the acquisition of Network International, completed on June 15, 2010, which utilizes the consignment model.

        Cost of goods sold (excluding amortization).    Cost of goods sold (excluding amortization) increased $34.4 million, or 45.9%, to $109.4 million for the year ended September 30, 2010 from $75.0 million for the year ended September 30, 2009. As a percentage of revenue, cost of goods sold (excluding amortization) increased to 40.1% in fiscal 2010 compared to 34.2% in fiscal 2009. These increases are primarily due to (1) expenses of $13.3 million associated with the new Surplus Contract, which utilizes the purchase model and (2) expenses of $21.6 million associated with our U.S. commercial business, which has experienced lower per unit prices and margins as a result of the economic downturn as buyers seek greater value from their purchases.

        Profit-sharing distributions.    Profit-sharing distributions decreased $2.4 million, or 5.6%, to $41.3 million for the year ended September 30, 2010 from $43.7 million for the year ended September 30, 2009. As a percentage of revenue, profit-sharing distributions decreased to 15.1% in fiscal 2010 from 20.0% in fiscal 2009. These decreases are primarily due to the completion of the original Surplus Contract.

        Technology and operations expenses.    Technology and operations expenses increased $2.1 million, or 4.8%, to $45.7 million for the year ended September 30, 2010 from $43.6 million for the year ended September 30, 2009, primarily due to increases in staff wages, including stock based compensation. As a percentage of revenue, these expenses decreased to 16.7% in fiscal 2010 from 19.9% in fiscal 2009, primarily due to the increase in revenue, while leveraging our fixed costs, such as programming staff and distribution centers.

        Sales and marketing expenses.    Sales and marketing expenses increased $3.0 million, or 16.9%, to $20.4 million for the year ended September 30, 2010 from $17.4 million for the year ended September 30, 2009, primarily due to increases in staff wages, including stock based compensation, associated with the hiring of 24 additional personnel to support the growth discussed above. As a percentage of revenue, these expenses decreased to 7.5% in fiscal 2010 from 7.9% in fiscal 2009, primarily due to the increase in revenue while leveraging our fixed costs, such as marketing staff.

        General and administrative expenses.    General and administrative expenses increased $3.5 million, or 17.2%, to $23.6 million for the year ended September 30, 2010 from $20.1 million for the year ended September 30, 2009, primarily due to (1) expenses of $1.8 million associated with increases in staff wages; (2) expenses of $0.5 million associated with stock based compensation; and (3) expenses of $1.1 million associated with increases in general corporate expenses. As a percentage of revenue, these expenses decreased to 8.7% in fiscal 2010 from 9.2% in fiscal 2009, primarily due to the increase in revenue while leveraging our fixed costs, such as corporate staff.

        Amortization of contract intangibles.    Amortization of contract intangibles was consistent at $0.8 million for the year ended September 30, 2010 and 2009, as a result of our Scrap Contract award during June 2005. This contract required us to purchase the rights to operate the scrap operations of the DoD during the seven year base term of the contract. The intangible asset created from the $5.7 million purchase is being amortized over 84 months on a straight line basis, which began in August 2005.

        Depreciation and amortization expenses.    Depreciation and amortization expenses increased $0.9 million, or 35.6%, to $3.6 million for the year ended September 30, 2010 from $2.7 million for the year ended September 30, 2009, primarily due to additional depreciation expense resulting from the purchase of $3.6 million of property and equipment during fiscal year ended September 30, 2010.

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        Acquisition costs.    Acquisition costs were $0.5 million for the year ended September 30, 2010 and $0 for the year ended September 30, 2009, as a result of our acquisition of Network International, Inc. on June 15, 2010.

        Interest income and other income (expense), net.    Interest income and other income (expense), net decreased $0.9 million, or 184.6%, to $0.4 million expense for the year ended September 30, 2010 from $0.5 million income for the year ended September 30, 2009, primarily due to a reduction in short term interest rates and other expenses.

        Provision for income tax expense.    Income tax expense increased $4.4 million, or 56.6%, to $12.2 million for the year ended September 30, 2010 from $7.8 million for the year ended September 30, 2009, primarily due to the increase in income before provision for income taxes from continuing operations.

        Income from continuing operations.    Income from continuing operations increased $6.7 million, or 79.8%, to $15.1 million for the year ended September 30, 2010 from $8.4 million for the year ended September 30, 2009, for the reasons noted above.

        Discontinued operations.    The Company substantially liquidated its UK subsidiary in fiscal year 2011. Loss from the UK operations increased $0.4 million, or 14.8%, to $3.1 million for the year ended September 30, 2010 from $2.7 million for the year ended September 30, 2009. See Note 5 to our consolidated financial statements.

        Net income.    Net income increased $6.3 million, or 110.5%, to $12.0 million for the year ended September 30, 2010 from $5.7 million for the year ended September 30, 2009 for the reasons noted above.

Liquidity and Capital Resources

        Historically, our primary cash needs have been working capital (including capital used for inventory purchases), which we have funded primarily through cash generated from operations. As of September 30, 2011, we had approximately $128.9 million in cash and cash equivalents and $24.5 million available under our $30.0 million senior credit facility, due to issued letters of credit for $4.5 million; $1.0 million of our availability under this facility is set aside as a contractual obligation under our DoD Scrap Contract. We used $80.0 million of cash on October 1, 2011 to fund a portion of the purchase price for the Jacobs transaction.

        On December 2, 2008, our Board of Directors approved a $10.0 million share repurchase program. Under the program, we are authorized to repurchase the issued and outstanding shares of common stock. Share repurchases may be made through open market purchases, privately negotiated transactions or otherwise, at times and in such amounts as management deems appropriate. The timing and actual number of shares repurchased will depend on a variety of factors including price, corporate and regulatory requirements and other market conditions. The repurchase program may be discontinued or suspended at any time, and will be funded using our available cash. On February 2, 2010, our Board of Directors approved an additional $10.0 million for the share repurchase program. On November 30, 2010, our Board of Directors approved an additional $10.0 million for the share repurchase program. On May 3, 2011, the Company's Board of Directors approved an additional $10.0 million for the share repurchase program. The Company's Board of Directors reviews the share repurchase program periodically, the last such review having occurred in May 2011. During the year ended September 30, 2009, 707,462 shares were purchased under the program for approximately $3,874,000. During the year ended September 30, 2010, 1,225,019 shares were purchased under the program for approximately $14,471,000. During the year ended September 30, 2011, 229,575 shares were purchased under the program for approximately $3,541,000. As of September 30, 2011, approximately $18,114,000 may yet be expended under the program.

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        Senior credit facility.    We maintain a $30.0 million senior credit facility due April 30, 2013. The senior credit facility bears an annual interest rate of 30 day LIBOR plus 1.25%. As of September 30, 2011, we had no outstanding indebtedness under our senior credit facility and our borrowing availability was $25.5 million due to issued letters of credit for $4.5 million; $1.0 million of our availability under this facility is set aside as a contractual obligation under our DoD Scrap Contract. The obligations under our senior credit facility are unconditionally guaranteed by us and each of our existing and subsequently acquired or organized subsidiaries (other than our subsidiary organized to service our DoD Scrap contract) and secured on a first priority basis by security interests (subject to permitted liens) in substantially all assets owned by us, and each of our other domestic subsidiaries, subject to limited exceptions. The Agreement contains certain financial and non-financial restrictive covenants including, among others, the requirements to maintain a minimum level of earnings before interest, income taxes, depreciation and amortization (EBITDA) and a minimum debt coverage ratio. Our credit agreement contains a number of affirmative and restrictive covenants including limitations on mergers, consolidations and dissolutions, sales of assets, investments and acquisitions, indebtedness and liens, and dividends and other restricted payments. As of September 30, 2011, we were in full compliance with the terms and conditions of our credit agreement.

        Substantially all of our sales are recorded subsequent to receipt of payment authorization, utilizing credit cards, wire transfers and PayPal, an Internet based payment system, as methods of payments. As a result, we are not subject to significant collection risk, as goods are generally not shipped before payment is received.

Changes in Cash Flows: 2011 Compared to 2010

        Net cash provided by operating activities from continuing operations increased $6.8 million to $40.6 million for the year ended September 30, 2011 from $33.8 million for the year ended September 30, 2010. For the year ended September 30, 2011, net cash provided by operating activities from continuing operations primarily consisted of income from continuing operations of $20.7 million, depreciation and amortization expense of $5.7 million, stock compensation expense of $9.1 million, a net increase in accounts payable, accrued expenses and other liabilities of $5.8, and a net increase in the provision for doubtful accounts, inventory allowance, and deferred tax benefit of $0.3 million, offset in part by a net decrease in accounts receivable, inventory and prepaid assets of $1.0 million. For the year ended September 30, 2010, net cash provided by operating activities from continuing operations primarily consisted of income from continuing operations of $15.1 million, depreciation and amortization expense of $4.4 million, stock compensation expense of $7.9, a net increase in accounts payable, accrued expenses and other liabilities of $9.1 million, and provision for doubtful accounts and inventory allowance of $0.4 million, offset in part by a net decrease in deferred tax benefit, accounts receivable, inventory and prepaid assets of $3.1 million.

        Net cash provided by (used in) investing activities was $19.6 million for the year ended September 30, 2011 and ($10.7) million for the year ended September 30, 2010. Net cash provided by investing activities in fiscal 2011 consisted primarily of net proceeds from the sale and purchase of short-term investments of $33.5 million, capital expenditures of $4.8 million for purchases of equipment and leasehold improvements, and cash paid for acquisitions net of cash acquired and an increase of goodwill and intangibles of $9.1 million. Net cash used in investing activities in fiscal 2010 consisted primarily of capital expenditures of $3.6 million, $4.1 million for the purchase of the assets of a company, $0.1 million for investment activities of discontinued operations, and net purchases of short-term investments of $2.9 million.

        Net cash provided by (used in) financing activities was $26.7 million for the year ended September 30, 2011 and ($10.6) million for the year ended September 30, 2010. Net cash provided by financing activities in fiscal 2011 consisted primarily of $30.2 from exercises of common stock options including the tax benefit of $6.6 million, offset by $3.5 million for stock repurchases. Net cash used in

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financing activities in fiscal 2010 consisted primarily of $14.5 million for stock repurchases and $0.1 million for principal repayments of capital lease obligations, offset by $4.0 from exercises of common stock options including the tax benefit.

Changes in Cash Flows: 2010 Compared to 2009

        Net cash provided by operating activities from continuing operations increased $22.1 million to $33.8 million for the year ended September 30, 2010 from $11.7 million for the year ended September 30, 2009. For the year ended September 30, 2010, net cash provided by operating activities from continuing operations primarily consisted of income from continuing operations of $15.1 million, depreciation and amortization expense of $4.4 million, stock compensation expense of $7.9, a net increase in accounts payable, accrued expenses and other liabilities of $9.1 million, and provision for doubtful accounts and inventory allowance of $0.4 million, offset in part by a net decrease in deferred tax benefit, accounts receivable, inventory and prepaid assets of $3.1 million. For the year ended September 30, 2009, net cash provided by operating activities from continuing operations primarily consisted of income from continuing operations of $8.4 million, depreciation and amortization expense of $3.5 million, and stock compensation expense of $6.5 million, offset in part by a net increase in accounts receivable, inventory, prepaid assets, and provision for doubtful accounts of $0.2 million, a net decrease in accounts payable, accrued expenses and other liabilities of $4.7 million and deferred tax benefit of $1.7 million.

        Net cash used in investing activities was $10.7 million for the year ended September 30, 2010 and $24.0 million for the year ended September 30, 2009. Net cash used in investing activities in fiscal 2010 consisted primarily of capital expenditures of $3.6 million, $4.1 million for the purchase of the assets of a company, $0.1 million for investment activities of discontinued operations, and net purchases of short-term investments of $2.9 million. Net cash used in investing activities from continuing operations in fiscal 2009 consisted primarily of capital expenditures of $3.3 million, $0.9 million for the purchase of the assets of a company and net purchases of short-term investments of $19.4 million.

        Net cash used in financing activities was $10.6 million for the year ended September 30, 2010 and $2.7 million for the year ended September 30, 2009. Net cash used in financing activities in fiscal 2010 consisted primarily of $14.5 million for stock repurchases and $0.1 million for principal repayments of capital lease obligations, offset in part by proceeds from the exercise of common stock options including the tax benefit of $4.0 million. Net cash used in financing activities in fiscal 2009 consisted primarily of $3.9 million for stock repurchases, offset in part by proceeds from the exercise of common stock options including the tax benefit of $1.2 million.

        Capital Expenditures.    Our capital expenditures consist primarily of computers and purchased software, office equipment, furniture and fixtures, and leasehold improvements. The timing and volume of such capital expenditures in the future will be affected by the addition of new customers or expansion of existing customer relationships. We expect capital expenditures to range from $5.0 million to $6.0 million in the fiscal year ending September 30, 2012. We intend to fund those expenditures primarily from operating cash flows. Our capital expenditures for the year ended September 30, 2011 were $4.8 million. As of September 30, 2011, we had no outstanding commitments for capital expenditures, other than the Jacobs acquisition which closed on October 1, 2011.

        We believe that our existing cash and cash equivalents will be sufficient to meet our anticipated cash needs for at least the next 12 months. Our future capital requirements will depend on many factors including our rate of revenue growth, the timing and extent of spending to support development efforts, the expansion of sales and marketing activities, the development and deployment of new marketplaces, the introduction of new value added services and the costs to establish additional distribution centers. Although we are currently not a party to any definitive agreement with respect to potential investments in, or acquisitions of, complementary businesses, products or technologies, we

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may enter into these types of arrangements in the future, which could also require us to seek additional equity or debt financing. The sale of additional equity securities or convertible debt securities would result in additional dilution to our stockholders. Additional debt would result in increased interest expense and could result in covenants that would restrict our operations. There is no assurance that such financing, if required, will be available in amounts or on terms acceptable to us, if at all.

Contractual and Commercial Commitments

        The table below represents our significant commercial commitments as of September 30, 2011. Operating leases, which represent commitments to rent office and warehouse space in the United States, are not reflected on our balance sheets.

 
  Total   Less than
1 year
  1 to 3
years
  3 to 5
Years
  5+ years  
 
  (in thousands)
 

Operating leases

  $ 18,894   $ 5,621   $ 7,916   $ 3,099   $ 2,258  
                       

Total contractual cash obligations

  $ 18,894   $ 5,621   $ 7,916   $ 3,099   $ 2,258  
                       

Off-Balance Sheet Arrangements

        We do not have any transactions, obligations or relationships that could be considered material off-balance sheet arrangements.

Inflation

        Inflation generally affects us by increasing our cost of labor and equipment. We do not believe that inflation had any material effect on our results of operations during the fiscal years ended September 30, 2009, 2010 and 2011.

New Accounting Pronouncements

        In September 2011, the FASB amended its guidance for testing goodwill for impairment by allowing an entity to use a qualitative approach to test goodwill for impairment. The amended guidance, included in ASU 2011-08, "Testing Goodwill for Impairment" is effective for our annual reporting period beginning on October 1, 2012. The amended guidance is intended to reduce complexity and costs by allowing an entity the option to make a qualitative evaluation about the likelihood of goodwill impairment to determine whether it should calculate the fair value of a reporting unit. We have not completed an assessment of the impact of this amended guidance, but do not expect the adoption to have a material impact on the financial statements.

        In June 2011, the FASB issued ASU 2011-05, Comprehensive Income (Topic 220)—Presentation of Comprehensive Income, to require an entity to present the total of comprehensive income, the components of net income, and the components of other comprehensive income either in a single continuous statement of comprehensive income or in two separate but consecutive statements. ASU 2011-05 eliminates the option to present the components of other comprehensive income as part of the statement of equity. ASU 2011-05 is effective for our first quarter of fiscal 2013 (quarter ending December 31, 2012) and should be applied retrospectively. We believe there will be no significant impact on the consolidated financial statements.

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Item 7A.    Quantitative and Qualitative Disclosures about Market Risk.

        Interest rate sensitivity.    We did not have any debt as of September 30, 2011 and thus do not have any related interest rate exposure. Our investment policy requires us to invest funds in excess of current operating requirements. The principal objectives of our investment activities are to preserve principal, provide liquidity and maximize income consistent with minimizing risk of material loss.

        Exchange rate sensitivity.    We consider our exposure to foreign currency exchange rate fluctuations to be minimal, as less than four percent of our sales are denominated in foreign currencies. We have not engaged in any hedging or other derivative transactions to date.

Item 8.    Financial Statements and Supplemental Data.

        Annual Financial Statements and Selected Financial Data: The consolidated financial statements and accompanying notes listed in Part IV, Item 15(a)(1) of this Annual Report on Form 10-K are included elsewhere in this Annual Report.

Item 9.    Changes in and Disagreement with Accountants on Accounting and Financial Disclosure.

        None.

Item 9A.    Controls and Procedures.

        Attached as exhibits to this Form 10-K are certifications of our Chief Executive Officer and Chief Financial Officer, which are required in accordance with Rule 13a-14 of the Securities Exchange Act of 1934, as amended. This "Controls and Procedures" section includes information concerning the controls and controls evaluation referred to in the certifications. The report of Ernst & Young LLP, our independent registered public accounting firm, regarding management's assessment of internal control over financial reporting, and its audit of our internal control over financial reporting is set forth below in this section. This section should be read in conjunction with the certifications and the Ernst & Young LLP report for a more complete understanding of the topics presented.

Evaluation of Disclosure Controls and Procedures

        We conducted an evaluation of the effectiveness of the design and operation of our "disclosure controls and procedures" as of the end of the period covered by this Form 10-K. The controls evaluation was conducted under the supervision and with the participation of management, including our Chief Executive Officer and Chief Financial Officer. Disclosure controls are controls and procedures designed to reasonably assure that information required to be disclosed in our reports filed under the Securities Exchange Act of 1934, such as this Form 10-K, is recorded, processed, summarized and reported within the time periods specified in the SEC's rules and forms. Disclosure controls are also designed to reasonably assure 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. Our quarterly evaluation of disclosure controls includes an evaluation of some components of our internal control over financial reporting, and internal control over financial reporting is also separately evaluated on an annual basis for purposes of providing the management report which is set forth below.

        The evaluation of our disclosure controls included a review of the controls' objectives and design, our implementation of the controls and their effect on the information generated for use in this Form 10-K. In the course of the controls evaluation, we reviewed identified data errors, control problems or indications of potential fraud and, where appropriate, sought to confirm that appropriate corrective actions, including process improvements, were being undertaken. This type of evaluation is performed on a quarterly basis so that the conclusions of management, including the Chief Executive

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Officer and Chief Financial Officer, concerning the effectiveness of the disclosure controls can be reported in our periodic reports on Form 10-Q and Form 10-K. Many of the components of our disclosure controls are also evaluated on an ongoing basis by our finance organization. The overall goals of these various evaluation activities are to monitor our disclosure controls, and to modify them as necessary. Our intent is to maintain the disclosure controls as dynamic systems that change as conditions warrant.

        Based upon the controls evaluation, our Chief Executive Officer and Chief Financial Officer have concluded that, as of the end of the period covered by this Form 10-K, our disclosure controls were effective to provide reasonable assurance that information required to be disclosed in our Securities Exchange Act reports is recorded, processed, summarized and reported within the time periods specified by the SEC, and that material information related to Liquidity Services and our consolidated subsidiaries is made known to management, including the Chief Executive Officer and Chief Financial Officer, particularly during the period when our periodic reports are being prepared. We reviewed the results of management's evaluation with the Audit Committee of our Board of Directors.

Management Report on Internal Control over Financial Reporting

        Our management is responsible for establishing and maintaining effective internal control over financial reporting to provide reasonable assurance regarding the reliability of our financial reporting and the preparation of financial statements for external purposes in accordance with U.S. generally accepted accounting principles. Internal control over financial reporting includes those policies and procedures that (i) pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the company; (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with U.S. generally accepted accounting principles; and (iii) provide reasonable assurance regarding authorization to effect the acquisition, use or disposition of company assets, as well as the prevention or timely detection of unauthorized acquisition, use or disposition of the company's assets that could have a material effect on the financial statements.

        Management assessed our internal control over financial reporting as of September 30, 2011, the end of our fiscal year. Management based its assessment on criteria established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission. Management's assessment included evaluation of such elements as the design and operating effectiveness of key financial reporting controls, process documentation, accounting policies and our overall control environment. This assessment is supported by testing and monitoring performed by our finance organization.

        Based on this assessment, management has concluded that our internal control over financial reporting was effective as of the end of the fiscal year to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external reporting purposes in accordance with U.S. generally accepted accounting principles.

        Our independent registered public accounting firm, Ernst & Young LLP, independently assessed the effectiveness of the company's internal control over financial reporting. Ernst & Young LLP has issued an attestation report, which is included at the end of this section.

Inherent Limitations on Effectiveness of Controls

        A control system, no matter how well designed and operated, can provide only reasonable, not absolute, assurance that the control system's objectives will be met. The design of a control system must reflect the fact that there are resource constraints, and the benefits of controls must be considered relative to their costs. Other inherent limitations include the realities that judgments in decision-making can be faulty and that breakdowns can occur because of simple error or mistake.

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Controls can also be circumvented by the individual acts of some persons, by collusion of two or more people, or by management override of the controls. Projections of any evaluation of controls effectiveness to future periods are subject to risks. Over time, controls may become inadequate because of changes in conditions or deterioration in the degree of compliance with policies or procedures.

Changes in Internal Control over Financial Reporting

        On a quarterly basis we evaluate any changes to our internal control over financial reporting to determine if material changes occurred. There were no changes in our internal controls over financial reporting during the quarterly period ended September 30, 2011 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.

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REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
ON INTERNAL CONTROL OVER FINANCIAL REPORTING

The Board of Directors and Stockholders of
Liquidity Services, Inc. and Subsidiaries

        We have audited Liquidity Services, Inc.'s internal control over financial reporting as of September 30, 2011, based on criteria established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (the COSO criteria). Liquidity Services, Inc.'s management is responsible for maintaining effective internal control over financial reporting, and for its assessment of the effectiveness of internal control over financial reporting included in the accompanying Management Report on Internal Control Over Financial Reporting. Our responsibility is to express an opinion on the company's internal control over financial reporting based on our audit.

        We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects. Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, testing and evaluating the design and operating effectiveness of internal control based on the assessed risk, and performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.

        A company's internal control over financial reporting is a process designed 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. A company's internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company's assets that could have a material effect on the financial statements.

        Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

        In our opinion, Liquidity Services, Inc. maintained, in all material respects, effective internal control over financial reporting as of September 30, 2011, based on the COSO criteria.

        We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the consolidated balance sheets of Liquidity Services, Inc. and subsidiaries as of September 30, 2011 and 2010, and the related consolidated statements of operations, changes in stockholders' equity, and cash flows for each of the three years in the period ended September 30, 2011 of Liquidity Services, Inc. and subsidiaries and our report dated December 9, 2011 expressed an unqualified opinion thereon.

/s/ ERNST & YOUNG LLP

McLean, Virginia
December 9, 2011

Item 9B.    Other Information.

        None.

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PART III

Item 10.    Directors, Executive Officers and Corporate Governance.

        Incorporated by reference from the Company's Proxy Statement relating to its 2012 Annual Meeting of Stockholders to be filed with the SEC within 120 days after September 30, 2011.

Code of Ethics, Governance Guidelines and Committee Charters

        We have adopted a Code of Business Conduct and Ethics that applies to all Liquidity Services employees. The Code of Business Conduct and Ethics is available on our website.

Item 11.    Executive Compensation.

        Incorporated by reference from the Company's Proxy Statement relating to its 2012 Annual Meeting of Stockholders to be filed with the SEC within 120 days after September 30, 2011.

Item 12.    Security Ownership of Certain Beneficial Owners and Management and Related Stockholders Matters.

        Incorporated by reference from the Company's Proxy Statement relating to its 2012 Annual Meeting of Stockholders to be filed with the SEC within 120 days after September 30, 2011.

Item 13.    Certain Relationship and Related Transactions, and Director Independence.

        Incorporated by reference from the Company's Proxy Statement relating to its 2012 Annual Meeting of Stockholders to be filed with the SEC within 120 days after September 30, 2011.

Item 14.    Principal Accounting Fees and Services.

        Incorporated by reference from the Company's Proxy Statement relating to its 2012 Annual Meeting of Stockholders to be filed with the SEC within 120 days after September 30, 2011.

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PART IV

Item 15.    Exhibits and Financial Statement Schedules.

 
   
  Page  

(a)(1)

 

The following financial statements are filed as part of this report:

       

 

Report of Independent Registered Public Accounting Firm

   
57
 

 

Financial Statements covered by the Report of Independent Registered Public Accounting Firm:

       
 

 

Consolidated Balance Sheets as of September 30, 2010 and 2011

   
58
 
 

 

Consolidated Statements of Operations for the years ended September 30, 2009, 2010 and 2011

    59  
 

 

Consolidated Statements of Changes in Stockholders' Equity for the years ended September 30, 2009, 2010 and 2011

    60  
 

 

Consolidated Statements of Cash Flows for the years ended September 30, 2009, 2010 and 2011

    61  
 

 

Notes to the Consolidated Financial Statements

    62  

(a)(2)

 

The following financial statement schedule is filed as part of this report:

       

 

Schedule for the three years ended September 30, 2009, 2010 and 2011:

       
 

 

II—Valuation and Qualifying Accounts

    83  

All other schedules for which provision is made in the applicable accounting regulation of the Securities and Exchange Commission are not required or are inapplicable and therefore have been omitted.

(a)(3) The documents required to be filed as exhibits to this report under Item 601 of Regulation S-K are listed in the Exhibit Index included elsewhere in this report, which list is incorporated herein by reference.

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Report of Independent Registered Public Accounting Firm

The Board of Directors and Stockholders of
Liquidity Services, Inc. and Subsidiaries

        We have audited the accompanying consolidated balance sheets of Liquidity Services, Inc. and subsidiaries as of September 30, 2011 and 2010, and the related consolidated statements of operations, changes in stockholders' equity, and cash flows for each of the three years in the period ended September 30, 2011. Our audits also included the financial statement schedule listed in the Index at Item 15(a). These financial statements and schedule are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements and schedule based on our audits.

        We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.

        In our opinion, the financial statements referred to above present fairly, in all material respects, the consolidated financial position of Liquidity Services, Inc. and subsidiaries at September 30, 2011 and 2010, and the consolidated results of their operations and their cash flows for each of the three years in the period ended September 30, 2011, in conformity with U.S. generally accepted accounting principles. Also, in our opinion, the related financial statement schedule, when considered in relation to the basic financial statements taken as a whole, presents fairly in all material respects the information set forth therein.

        We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), Liquidity Services, Inc.'s internal control over financial reporting as of September 30, 2011, based on criteria established in Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission and our report dated December 9, 2011 expressed an unqualified opinion thereon.

/s/ Ernst & Young LLP

McLean, Virginia
December 9, 2011

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Liquidity Services, Inc. and Subsidiaries
Consolidated Balance Sheets
(Dollars in Thousands)

 
  September 30,  
 
  2011   2010  

Assets

             

Current assets:

             
 

Cash and cash equivalents

  $ 128,984   $ 42,534  
 

Short-term investments

        33,405  
 

Accounts receivable, net of allowance for doubtful accounts of $514 and $293 in 2011 and 2010, respectively

    6,049     4,386  
 

Inventory

    15,065     14,651  
 

Prepaid expenses, deferred taxes and other current assets

    20,878     9,390  
 

Current assets of discontinued operations

    277     4,335  
           
   

Total current assets

    171,253     108,701  

Property and equipment, net

    7,042     6,287  

Intangible assets, net

    2,993     2,855  

Goodwill

    40,549     26,382  

Long-term assets of discontinued operations

        14,384  

Other assets

    5,970     6,295  
           

Total assets

  $ 227,807   $ 164,904  
           

Liabilities and stockholders' equity

             

Current liabilities:

             
 

Accounts payable

  $ 8,590   $ 7,029  
 

Accrued expenses and other current liabilities

    23,411     22,902  
 

Profit-sharing distributions payable

    7,267     5,596  
 

Acquisition earn out payable

    5,410     995  
 

Customer payables

    12,728     9,783  
 

Current liabilities of discontinued operations

    2,160     2,332  
           
   

Total current liabilities

    59,566     48,637  

Acquisition earn out payable

    4,741     1,810  

Deferred taxes and other long-term liabilities

    2,087     2,026  

Long-term liabilities of discontinued operations

        57  
           

Total liabilities

    66,394     52,530  

Stockholders' equity:

             
 

Common stock, $0.001 par value; 120,000,000 shares authorized; 31,192,608 shares issued and 29,030,552 shares outstanding at September 30, 2011; 28,827,072 shares issued and 26,894,591 shares outstanding at September 30, 2010

    29     27  
 

Additional paid-in capital

    124,886     85,517  
 

Treasury stock, at cost

    (21,884 )   (18,343 )
 

Accumulated other comprehensive income (loss)

    52     (4,645 )
 

Retained earnings

    58,330     49,818  
           
   

Total stockholders' equity

    161,413     112,374  
           

Total liabilities and stockholders' equity

  $ 227,807   $ 164,904  
           

See accompanying notes to the consolidated financial statements.

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Liquidity Services, Inc. and Subsidiaries
Consolidated Statements of Operations
(Dollars in Thousands Except Share and Per Share Data)

 
  Year ended September 30,  
 
  2011   2010   2009  

Revenue from continuing operations

  $ 327,378   $ 273,015   $ 219,011  

Costs and expenses from continuing operations:

                   
 

Cost of goods sold (excluding amortization)

    126,395     109,376     74,963  
 

Profit-sharing distributions

    49,318     41,310     43,722  
 

Technology and operations

    52,178     45,700     43,587  
 

Sales and marketing

    23,279     20,381     17,438  
 

General and administrative

    26,484     23,606     20,138  
 

Amortization of contract intangibles

    813     813     813  
 

Depreciation and amortization

    4,881     3,609     2,662  
 

Acquisition costs

    6,702     524      
               
   

Total costs and expenses

    290,050     245,319     203,323  
               

Income from continuing operations

    37,328     27,696     15,688  

Interest income and other income(expense), net

    (1,190 )   (428 )   506  
               

Income before provision for income taxes from continuing operations

    36,138     27,268     16,194  

Provision for income taxes

    (15,459 )   (12,194 )   (7,788 )
               

Income from continuing operations

    20,679     15,074     8,406  

Loss from discontinued operations, net of tax

    (12,167 )   (3,061 )   (2,687 )
               

Net income

  $ 8,512   $ 12,013   $ 5,719  
               

Basic earnings (loss) per common share:

                   
 

From continuing operations

  $ 0.75   $ 0.55   $ 0.30  
 

From discontinued operations

    (0.44 )   (0.11 )   (0.09 )
               

Basic earnings per common share

  $ 0.31   $ 0.44   $ 0.21  
               

Diluted earnings (loss) per common share:

                   
 

From continuing operations

  $ 0.71   $ 0.55   $ 0.30  
 

From discontinued operations

    (0.42 )   (0.11 )   (0.09 )
               

Diluted earnings per common share

  $ 0.29   $ 0.44   $ 0.21  
               

Basic weighted average shares outstanding

   
27,736,865
   
27,098,016
   
27,699,223
 
               

Diluted weighted average shares outstanding

    29,081,933     27,406,883     27,846,693  
               

See accompanying notes to the consolidated financial statements.

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Liquidity Services, Inc. and Subsidiaries
Consolidated Statements of Changes in Stockholders' Equity
(In Thousands Except Share Data)

 
  Treasury Stock   Common Stock    
  Accumulated
Other
Comprehensive
Income (Loss)
   
   
 
 
  Additional
Paid-in
Capital
  Retained
Earnings
   
 
 
  Shares   Amount   Shares   Amount   Total  

Balance at September 30, 2008

            28,023,361   $ 28   $ 65,973   $ (1,717 ) $ 32,086   $ 96,370  
 

Common stock repurchase

    (707,462 ) $ (3,874 )                       (3,874 )
 

Exercise of common stock options

            248,622         1,082             1,082  
 

Compensation expense from grant of common stock options and restricted stock

                    6,586             6,586  
 

Comprehensive income:

                                                 
 

Net income

                            5,719     5,719  
 

Foreign currency translation and other

                        (1,901 )       (1,901 )
                                   

Balance at September 30, 2009

    (707,462 )   (3,874 )   28,271,983     28     73,641     (3,618 )   37,805     103,982  
 

Common stock repurchase

    (1,225,019 )   (14,469 )       (1 )               (14,470 )
 

Exercise of common stock options and restricted stock

            555,089         3,238             3,238  
 

Compensation expense from grant of common stock options and restricted stock

                    8,638             8,638  
 

Comprehensive income:

                                                 
 

Net income

                            12,013     12,013  
 

Foreign currency translation and other

                        (1,027 )       (1,027 )
                                   

Balance at September 30, 2010

    (1,932,481 )   (18,343 )   28,827,072     27     85,517     (4,645 )   49,818     112,374  
 

Common stock repurchase

    (229,575 )   (3,541 )                       (3,541 )
 

Exercise of common stock options and restricted stock

            2,365,536     2     23,637             23,639  
 

Compensation expense from grant of common stock options and restricted stock

                    15,732             15,732  
 

Comprehensive income:

                                                 
 

Net income

                            8,512     8,512  
 

Foreign currency translation and other

                        4,697         4,697  
                                   

Balance at September 30, 2011

    (2,162,056 ) $ (21,884 )   31,192,608   $ 29   $ 124,886   $ 52   $ 58,330   $ 161,413  
                                   

See accompanying notes to the consolidated financial statements.

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Liquidity Services, Inc. and Subsidiaries
Consolidated Statements of Cash Flows
(In Thousands)

 
  2011   2010   2009  

Operating activities

                   

Net income

  $ 8,512   $ 12,013   $ 5,719  
 

Less: Discontinued operations, net of tax

    (12,167 )   (3,061 )   (2,687 )
               

Income from continuing operations

   
20,679
   
15,074
   
8,406
 

Adjustments to reconcile income from continuing operations to net cash provided by operating activities from continuing operations:

                   
 

Depreciation and amortization

    5,694     4,422     3,475  
 

Stock compensation expense

    9,136     7,891     6,465  
 

Provision for inventory allowance

    (22 )   512      
 

Provision (benefit) for doubtful accounts

    221     (62 )   (147 )
 

Deferred tax benefit

    66     (893 )   (1,707 )
 

Changes in operating assets and liabilities:

                   
   

Accounts receivable

    (1,809 )   162     109  
   

Inventory

    (392 )   (2,624 )   (808 )
   

Prepaid expenses and other assets

    1,218     234     659  
   

Accounts payable

    1,552     1,816     (1,953 )
   

Accrued expenses and other

    (691 )   5,390     4,695  
   

Profit-sharing distributions payable

    1,671     1,058     (5,716 )
   

Customer payables

    2,945     (124 )   (2,171 )
   

Acquisition earn out payable

    358     2,805      
   

Other liabilities

    (1 )   (1,895 )   402  
               

Net cash provided by operating activities from continuing operations

    40,625     33,766     11,709  

Net cash provided (used) by operating activities from discontinued operations

    (739 )   (1,833 )   (3,074 )
               

Net cash provided by operating activities

    39,886     31,933     8,635  

Investing activities

                   

Purchases of short-term investments

    (10,292 )   (61,024 )   (35,113 )

Proceeds from the sale of short-term investments

    43,812     58,123     15,737  

Increase in goodwill and intangibles and cash paid for acquisitions

    (9,092 )   (4,102 )   (886 )

Purchases of property and equipment

    (4,822 )   (3,624 )   (3,296 )

Investment activities from discontinued operations

        (92 )   (453 )
               

Net cash provided (used) in investing activities

    19,606     (10,719 )   (24,011 )

Financing activities

                   

Principal repayments of capital lease obligations and debt

        (138 )   (27 )

Repurchases of common stock

    (3,541 )   (14,470 )   (3,874 )

Proceeds from exercise of common stock options (net of tax)

    23,639     3,238     1,081  

Incremental tax benefit from exercise of common stock options

    6,597     747     121  
               

Net cash provided (used) by financing activities

    26,695     (10,623 )   (2,699 )

Effect of exchange rate differences on cash and cash equivalents

    (476 )   (751 )   (341 )
               

Net increase (decrease) in cash and cash equivalents

    85,711     9,840     (18,416 )

Cash and cash equivalents at beginning of year

    43,378     33,538     51,954  
               

Cash and cash equivalents at end of year

    129,089     43,378     33,538  

Less: Cash and cash equivalents of discontinued operations at end of year

    105     844     767  
               

Cash and cash equivalents of continuing operations at end of year

  $ 128,984   $ 42,534   $ 32,771  
               

Supplemental disclosure of cash flow information

                   

Property and equipment acquired through capital leases

          $ 100  

Cash paid for income taxes

  $ 6,245   $ 12,486     9,215  

Cash paid for interest

    62     64     44  

Contingent purchase price accrued

    6,989     2,805      

See accompanying notes to the consolidated financial statements.

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Liquidity Services, Inc. and Subsidiaries

Notes to Consolidated Financial Statements

1. Organization

        Liquidity Services, Inc. and subsidiaries (LSI or the Company) is a leading online auction marketplace for surplus and salvage assets. LSI enables buyers and sellers to transact in an efficient, automated online auction environment offering over 500 product categories. The Company's marketplaces provide professional buyers access to a global, organized supply of surplus and salvage assets presented with digital images and other relevant product information. Additionally, LSI enables its corporate and government sellers to enhance their financial return on excess assets by providing a liquid marketplace and value-added services that integrate sales and marketing, logistics and transaction settlement into a single offering. LSI organizes its products into categories across major industry verticals such as consumer electronics, general merchandise, apparel, scientific equipment, aerospace parts and equipment, technology hardware, energy equipment, industrial capital assets, fleet and transportation equipment and specialty equipment. The Company's online auction marketplaces are www.liquidation.com, www.govliquidation.com, www.govdeals.com, www.networkintl.com, www.truckcenter.com, and www.secondipity.com. LSI has one reportable segment consisting of operating online auction marketplaces for sellers and buyers of surplus, salvage and scrap assets.

        The Company's operations are subject to certain risks and uncertainties associated with technology-oriented companies including, but not limited to, the Company's dependence on use of the Internet, the effect of general business and economic trends, its susceptibility to rapid technological change, actual and potential competition by entities with greater financial resources, and the potential for the U.S. Government agencies from which the Company has derived a significant portion of its inventory to change the way they conduct their surplus disposition or to otherwise not renew their contracts with the Company.

        As of September 30, 2011, the Company has ceased operations of its operations in the United Kingdom and has substantially liquidated that entity (Liquidity Services, Ltd). The results of the UK operations are presented as discontinued operations for all periods presented. See Note 5.

        The Company has evaluated subsequent events through the date that these financial statements were issued and filed with the Securities and Exchange Commission.

2. Summary of Significant Accounting Policies

        The preparation of financial statements in conformity with accounting principles generally accepted in the United States requires management to make estimates and assumptions that affect amounts in the consolidated financial statements and accompanying notes. Actual results could differ from those estimates.

        The accompanying consolidated financial statements include the accounts of the Company and its wholly-owned subsidiaries. All intercompany balances and transactions have been eliminated in consolidation.

        The consolidated financial statements for 2010 and 2009 have been recast so that the basis of presentation is consistent with that of the consolidated financial statements for 2011. This recast

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Liquidity Services, Inc. and Subsidiaries

Notes to Consolidated Financial Statements (Continued)

2. Summary of Significant Accounting Policies (Continued)

reflects the financial condition, results of operations, and cash flows of Liquidity Services, Ltd., as discontinued operations for all periods presented.

        In determining whether a group of assets disposed (or to be disposed) of should be presented as discontinued operations, the Company makes a determination of whether the group of assets being disposed of comprises a component of the entity; that is, whether it has historical operations and cash flows that can be clearly distinguished (both operationally and for financial reporting purposes). The Company also determines whether the cash flows associated with the group of assets have been significantly (or will be significantly) eliminated from the ongoing operations of the Company as a result of the disposal transaction and whether the Company has no significant continuing involvement in the operations of the group of assets after the disposal transaction. If these determinations can be made affirmatively, the results of operations of the group of assets being disposed of (as well as any gain or loss on the disposal transaction) are aggregated for separate presentation apart from continuing operating results of the Company in the consolidated financial statements. See "Note 5" for additional information.

        The Company recognizes all of the assets acquired, liabilities assumed, contractual contingencies, and contingent consideration at their fair value on the acquisition date. Acquisition-related costs are recognized separately from the acquisition and expensed as incurred. Generally, restructuring costs incurred in periods subsequent to the acquisition date are expensed when incurred. Subsequent changes to the purchase price (i.e., working capital adjustments) or other fair value adjustments determined during the measurement period are recorded as an adjustment to goodwill, with the exception of contingent consideration, which is expensed in the period it is modified. All subsequent changes to a valuation allowance or uncertain tax position that relate to the acquired company and existed at the acquisition date that occur both within the measurement period and as a result of facts and circumstances that existed at the acquisition date are recognized as an adjustment to goodwill. All other changes in valuation allowances are recognized as a reduction or increase to income tax expense or as a direct adjustment to additional paid-in capital as required.

        The Company considers all highly liquid securities purchased with an initial maturity of three months or less to be cash equivalents.

        Available-for-sale securities, which approximate par value, are stated at fair value, with the unrealized gains and losses reported in accumulated other comprehensive income. For the years ended September 30, 2011, 2010 and 2009, the amount of unrealized losses reported in accumulated other comprehensive income was $0, $116,000, and $4,000, respectively. Realized gains and losses and declines in fair value that are determined to be other-than-temporary on available-for-sale securities are included in interest income and other income, net. The cost of securities sold is based on the specific identification method. Interest and dividends on securities classified as available-for-sale are included in

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Liquidity Services, Inc. and Subsidiaries

Notes to Consolidated Financial Statements (Continued)

2. Summary of Significant Accounting Policies (Continued)

interest income and other income, net. Realized losses for sales of investments for the years ended September 30, 2011, 2010 and 2009 were $15,000, $111,000, and $0, respectively.

        Accounts receivable are recorded at the invoiced amount and are non-interest bearing. The Company maintains an allowance for doubtful accounts to reserve for potentially uncollectible receivables. Allowances are based on management's judgment, which considers historical experience and specific knowledge of accounts where collectability may not be probable. The Company makes provisions based on historical bad debt experience, a specific review of all significant outstanding invoices and an assessment of general economic conditions.

        Inventory consists of property obtained for resale, generally through the online auction process, and is stated at the lower of cost or market. Cost is determined using the specific identification method. Charges for unsellable inventory are included in cost of goods sold in the period in which they have been determined to occur.

        Property and equipment is recorded at cost, and depreciated and amortized on a straight-line basis over the following estimated useful lives:

Computers and purchased software   One to five years
Office equipment   Three years
Furniture and fixtures   Five to seven years
Leasehold improvements   Shorter of lease term or useful life

        Intangible assets primarily consist of contract acquisition costs, covenants not to compete, and other intangible assets associated with acquisitions (see Note 4). Intangible assets are amortized using the straight-line method over their estimated useful lives, ranging from three to seven years.

        Long-lived assets, including amortizable intangible assets, are reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be fully recoverable. If an impairment indicator is present, the Company evaluates recoverability by comparing the carrying amount of the assets to future undiscounted net cash flows expected to be generated by the assets. If the assets are impaired, the impairment recognized is measured by the amount by which the carrying amount exceeds the estimated fair value of the assets.

        Goodwill and other non amortizable intangible assets are reviewed for impairment annually or more frequently if events or circumstances indicate impairment may exist. Examples of such events or

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Liquidity Services, Inc. and Subsidiaries

Notes to Consolidated Financial Statements (Continued)

2. Summary of Significant Accounting Policies (Continued)

circumstances could include a significant change in business climate or the loss of a significant customer. The Company applies a two-step fair value-based test to assess goodwill for impairment. The first step compares the fair value of a reporting unit to its carrying amount, including goodwill. If the carrying amount of the reporting unit exceeds its fair value, the second step is then performed. The second step compares the carrying amount of the reporting unit's goodwill to the fair value of the goodwill. If the fair value of the goodwill is less than the carrying amount, an impairment loss would be recorded in the statements of operations.

        The Company recognizes revenue when all of the following criteria are met:

        Revenue is also evaluated for reporting revenue of gross proceeds as the principal in the arrangement or net of commissions as an agent. In arrangements in which the Company is deemed to be the primary obligor and bears physical and general inventory risk, and credit risk, LSI recognizes as revenue the gross proceeds from the sale, including buyer's premiums. In arrangements in which the Company acts as an agent or broker on a consignment basis, without taking physical or general inventory risk, revenue is recognized based on the sales commissions that are paid to the Company by the sellers for utilizing LSI's services; in this situation, sales commissions represent a percentage of the gross proceeds from the sale that the seller pays to the Company upon completion of the transaction.

        The Company has evaluated its revenue recognition policy related to sales under LSI's profit-sharing model and determined it is appropriate to account for these sales on a gross basis. In the Company's evaluation, the Company relied most heavily upon its status as primary obligor in the sales relationship and the fact that the Company has general inventory risk.

        The Company collects and remits sales taxes on merchandise that it purchases and sells, and reports such amounts under the net method in its consolidated statements of operations.

        Cost of goods sold includes the costs of purchasing and transporting property for auction as well as credit card transaction fees. The Company purchases the majority of its inventory at a fixed percentage of the property's original acquisition cost. Title for the inventory passes to the Company at the time of purchase and the Company bears the risks and rewards of ownership. The Company does not have title to assets sold on behalf of its commercial or government customers when it receives only sales commission revenue and, as such, recognizes no cost of goods sold associated with those sales. Cost of goods sold also includes shipping and handling costs and amounts paid by customers for shipping and handling.

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Liquidity Services, Inc. and Subsidiaries

Notes to Consolidated Financial Statements (Continued)

2. Summary of Significant Accounting Policies (Continued)

        The Company does not perform credit evaluations for the majority of its buyers. However, substantially all sales are recorded subsequent to payment authorization being received. As a result, the Company is not subject to significant collection risk, as goods are generally not shipped before payment is received.

        For consignment sales transactions, funds are collected from buyers and are held by the Company on the sellers' behalf. The funds are included in cash and cash equivalents in the consolidated financial statements. The Company releases the funds to the seller, less the Company's commission and other fees due, after the buyer has accepted the goods or within 30 days, depending on the state where the buyer and seller conduct business. The amount of cash held on behalf of the sellers is recorded as customer payables in the accompanying consolidated balance sheets.

        Financial instruments that potentially subject the Company to significant concentrations of credit risk consist principally of cash and cash equivalents in banks over FDIC limits, short-term investments and accounts receivable. The Company deposits its cash with financial institutions that the Company considers to be of high credit quality.

        For the years ended September 30, 2011 and 2010, approximately 11% of the Company's Gross Merchandise Volume (GMV) was generated from one commercial seller under multiple contracts / programs.

        The Company accounts for income taxes using an asset and liability approach for measuring deferred taxes based on temporary differences between the financial statement and income tax bases of assets and liabilities existing at each balance sheet date using enacted tax rates for the years in which the taxes are expected to be paid or recovered. A valuation allowance is provided to reduce the deferred tax assets to a level that the Company believes will more likely than not be realized. The resulting net deferred tax asset reflects management's estimate of the amount that will be realized.

        The Company applies the authoritative guidance related to uncertainty in income taxes. The Company has concluded that there were no uncertain tax positions identified during its analysis.

        The Company estimates the fair value of share-based awards on the date of grant. The fair value of stock options is determined using the Black-Scholes option-pricing model. The fair value of restricted stock awards is based on the closing price of the Company's common stock on the date of grant. The determination of the fair value of the Company's stock option awards and restricted stock awards is based on a variety of factors including, but not limited to, the Company's common stock price, expected stock price volatility over the expected life of awards, and actual and projected exercise behavior. Additionally, the Company has estimated forfeitures for share-based awards at the dates of grant based on historical experience, adjusted for future expectation. The forfeiture estimate is revised as necessary if actual forfeitures differ from these estimates.

        The Company issues restricted stock awards where restrictions lapse upon either the passage of time (service vesting), achieving performance targets, or some combination of these restrictions. For

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Liquidity Services, Inc. and Subsidiaries

Notes to Consolidated Financial Statements (Continued)

2. Summary of Significant Accounting Policies (Continued)


those restricted stock awards with only service conditions, the Company recognizes compensation cost on a straight-line basis over the explicit service period. For awards with both performance and service conditions, the Company starts recognizing compensation cost over the remaining service period, when it is probable the performance condition will be met. For stock awards that contain performance vesting conditions, the Company excludes these awards from diluted earnings per share computations until the contingency is met as of the end of that reporting period.

        The Company presents the cash flows resulting from the tax benefits resulting from tax deductions in excess of the compensation cost recognized for those options (excess tax benefits) as a financing activity in the Consolidated Statements of Cash Flows.

        Advertising expenditures are expensed as incurred. Advertising costs charged to expense were $4,768,000, $4,012,000 and $3,643,000 for the years ended September 30, 2011, 2010 and 2009, respectively.

        Cash and cash equivalents, short-term investments, accounts receivable, accounts payable, profit-sharing distributions payable, and consignment payables reported in the consolidated balance sheets approximate their fair values.

        The functional currency for Liquidity Services, Ltd., the Company's foreign subsidiary, is the British pound. The translation of the subsidiary's financial statements into U.S. dollars is performed for balance sheet accounts using exchange rates in effect at the balance sheet date and for revenue and expense accounts using an average exchange rate during the period. The resulting translation adjustments are recognized in accumulated other comprehensive income, a separate component of stockholders' equity. Realized foreign currency transaction gains and losses are included in losses from discontinued operations, net in the consolidated statements of operations.

        Comprehensive income includes net income adjusted for foreign currency translation and unrealized gains and losses on available-for-sale securities, and is reflected as a separate component of stockholders' equity. For the years ended September 30, 2011, 2010 and 2009, respectively, comprehensive income was $13,209,000, $10,986,000, and $3,818,000.

        Basic net income attributable to common stockholders per share is computed by dividing net income attributable to common stockholders by the weighted average number of common shares outstanding for the period. Diluted net income attributable to common stockholders per share includes the potential dilution that could occur if securities or other contracts to issue common stock were exercised or converted into common stock. The Company had 462,836 unvested restricted shares, which were issued at prices ranging from $7.48 – $11.48, during the year ended September 30, 2009, of which

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Liquidity Services, Inc. and Subsidiaries

Notes to Consolidated Financial Statements (Continued)

2. Summary of Significant Accounting Policies (Continued)

only 87,462 shares have been included in the calculation of diluted income per share for the year ended September 30, 2009. The Company had 973,167 unvested restricted shares, which were issued at prices ranging from $7.48 – $13.96, during the years ended September 30, 2010 and 2009, of which only 308,867 shares have been included in the calculation of diluted income per share for the year ended September 30, 2010. The Company had 1,294,082 unvested restricted shares, which were issued at prices ranging from $7.48 – $25.52, during the years ended September 30, 2011, 2010, and 2009, of which all have been included in the calculation of diluted income per share for the year ended September 30, 2011, due to the significant difference between the issuance price and the average market price for the period in which they have been outstanding. The Company has also not included the following stock options in the calculation of diluted income per share because the option exercise prices were greater than the average market prices for the applicable periods:

        The following summarizes the potential outstanding common stock of the Company as of the dates set forth below:

 
  September 30,  
 
  2011   2010   2009  
 
  (dollars in thousands except
per share and share data)

 

Weighted average shares calculation:

                   

Basic weighted average shares outstanding

    27,736,865     27,098,016     27,699,223  

Treasury stock effect of options and restricted stock

    1,345,068     308,867     147,470  
               

Diluted weighted average common shares outstanding

    29,081,933     27,406,883     27,846,693  
               

Income from continuing operations

  $ 20,679   $ 15,074   $ 8,406  

Income from discontinued operations

    (12,167 )   (3,061 )   (2,687 )
               

Net income

  $ 8,512   $ 12,013   $ 5,719  
               

Basic income (loss) per common share:

                   
 

From continuing operations

  $ 0.75   $ 0.55   $ 0.30  
 

From discontinued operations

    (0.44 )   (0.11 )   (0.09 )
               

Basic income per common share

  $ 0.31   $ 0.44   $ 0.21  
               

Diluted income (loss) per common share:

                   
 

From continuing operations

  $ 0.71   $ 0.55   $ 0.30  
 

From discontinued operations

    (0.42 )   (0.11 )   (0.09 )
               

Diluted income per common share

  $ 0.29   $ 0.44   $ 0.21  
               

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Liquidity Services, Inc. and Subsidiaries

Notes to Consolidated Financial Statements (Continued)

2. Summary of Significant Accounting Policies (Continued)

        Basic net income attributable to common stockholders per share is computed by dividing net income attributable to common stockholders by the weighted average number of common shares outstanding for the period. Diluted net income attributable to common stockholders per share includes the potential dilution that could occur if securities or other contracts to issue common stock were exercised or converted into common stock only if an entity records earnings from continuing operations as such adjustments would otherwise be anti-dilutive to earnings per share from continuing operations.

        In September 2011, the FASB amended its guidance for testing goodwill for impairment by allowing an entity to use a qualitative approach to test goodwill for impairment. The amended guidance, included in ASU 2011-08, "Testing Goodwill for Impairment" is effective for the Company for its annual reporting period beginning on October 1, 2012. The amended guidance is intended to reduce complexity and costs by allowing an entity the option to make a qualitatiave evaluation about the likelihood of goodwill impairment to determine whether it should calculate the fair value of a reporting unit. The Company has not completed its assessment of the impact of this amended guidance.

        In June 2011, the FASB issued ASU 2011-05, Comprehensive Income (Topic 220)—Presentation of Comprehensive Income, to require an entity to present the total of comprehensive income, the components of net income, and the components of other comprehensive income either in a single continuous statement of comprehensive income or in two separate but consecutive statements. ASU 2011-05 eliminates the option to present the components of other comprehensive income as part of the statement of equity. ASU 2011-05 is effective for the Company in its first quarter of fiscal 2013 (quarter ended December 31, 2012) and should be applied retrospectively. The Company currently believes there will be no significant impact on its consolidated financial statements.

3. Significant Contracts

        The Company had a Surplus Contract with the DLA Disposition Services, which expired on December 17, 2008. Under the terms of the original Contract, the Company distributed to the DLA Disposition Services a fixed percentage of the profits realized from the ultimate sale of the inventory, after deduction for allowable expenses and profit-sharing distributions, as provided for under the terms of the Contract. Profit-sharing distributions to the DLA Disposition Services for the years ended September 30, 2011, 2010 and 2009 were $0, $385,000, and $18,009,000, respectively, including accrued amounts of $0, 169,000 and $207,000 as of September 30, 2011, 2010 and 2009, respectively.

        The Company responded to a RFP and was awarded the new Surplus Contract. Significant operations began under the new Surplus Contract during February 2009. The new Contract has a base term expiring in February 2012 with two one year renewal options. The DoD has exercised the first renewal option. Under the new Surplus Contract, the Company is required to purchase all usable surplus property offered to the Company by the Department of Defense at a fixed percentage equal to 1.8% of the DoD's original acquisition value. The Company retains 100% of the profits from the resale of the property and bears all of the costs for the merchandising and sale of the property. The new Surplus Contract contains a provision providing for a mutual termination of the contract for convenience.

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Notes to Consolidated Financial Statements (Continued)

3. Significant Contracts (Continued)

        As a result of the Surplus Contract, the Company is the sole remarketer of all DoD surplus turned into the DLA Disposition Services available for sale within the United States, Puerto Rico, and Guam.

        The Company has a Scrap Contract with the DLA Disposition Services in which the base term expires in June 2012 with three one year renewal options. The DoD has exercised the first renewal option. Under the terms of the Scrap Contract, the Company is required to purchase all scrap government property referred to it by the DLA Disposition Services. The Company distributes to the DLA Disposition Services 77% of the profits realized from the ultimate sale of the inventory, after deduction for allowable expenses, as provided for under the terms of the contract. The Contract also has a performance incentive that allows it to receive up to an additional 2% of the profit sharing distribution. This incentive is measured annually on June 30th, and is applied to the prior 12 months. The Company earned a performance incentive for the years ended September 30, 2011, 2010 and 2009 of approximately $1,601,000, $1,286,000, and $975,000, respectively. For the years ended September 30, 2011, 2010 and 2009, profit-sharing distributions to the DLA Disposition Services under the Scrap Contract were $49,318,000, $40,926,000, and $25,713,000, including accrued amounts, as of September 30, 2011, 2010, and 2009, of $7,203,000, $5,349,000 and $4,407,000, respectively. The Scrap Contract may be terminated by either the Company or the DLA Disposition Services if the rate of return performance ratio does not exceed specified benchmark ratios for two consecutive quarterly periods and the preceding twelve months. The Company has performed in excess of the benchmark ratios throughout the contract period through September 30, 2011.

        As a result of the Scrap Contract, the Company is the sole remarketer of all U.S. Department of Defense scrap turned into the DLA Disposition Services available for sale within the United States, Puerto Rico, and Guam.

4. Acquisitions

        On June 15, 2010, the Company acquired the stock of Network International, Inc. for approximately $10,305,000. The acquisition price includes an upfront cash payment of $7,500,000 and an earn-out payment. Under the terms of the agreement, the earn-out is based on EBITDA earned by Network International, Inc. during each of the three six month periods after the closing date of the acquisition through December 31, 2011. The Company's estimate of the fair value of the earn-out as of September 30, 2010 was $2,805,000 out of a possible total earn out payment of $7,500,000. During 2011, the entire earn out was accrued for and payments were made for the first two six month measurement periods for a total of approximately $4,338,000. Network International is a leading online marketplace for the sale of idle, surplus and used equipment in the oil and gas, petrochemical and power generation industries. Network International conducts sales of client assets on a consignment basis. The Company incurred $524,000 of acquisition costs which were expensed as incurred. The operating results of Network International have been included in the consolidated financial statements from the date of acquisition.

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Notes to Consolidated Financial Statements (Continued)

4. Acquisitions (Continued)

        Goodwill was created as part of the acquisition as the Company acquired an experienced and knowledgeable workforce. The purchase consideration was allocated to acquired tangible assets, identifiable intangible assets, liabilities assumed and goodwill as follows:

 
  Consideration
Amount
 
 
  (in thousands)
 

Cash

  $ 3,913  

Goodwill

    5,991  

Receivables and other assets

    648  

Deferred tax assets

    3,753  

Covenants not to compete

    500  

Property and equipment

    133  

Deferred tax liability

    (196 )

Other liabilities

    (4,437 )
       

Total consideration

  $ 10,305  
       

        On June 1, 2011, the Company acquired the assets of Truckcenter.com, LLC. (TC) for approximately $15,989,000. The acquisition price includes an upfront cash payment of $9,000,000 and an earn-out payment. Under the terms of the agreement, the earn-out is based on EBITDA earned by TC during the trailing 12 months ending August 31, 2012, and the revenue earned by TC during each of the two 12 month periods after the closing date of the acquisition through May 31, 2013. The Company's estimate of the fair value of the earn-out as of September 30, 2011 was $6,989,000 out of a possible total earn out payment of $9,000,000. TC is a leading marketplace for the sale of idle, surplus and used fleet and transportation equipment. TC conducts sales of client assets on a consignment basis. The Company incurred $246,000 of acquisition costs which were expensed as incurred. The operating results of TC have been included in the consolidated financial statements from the date of acquisition.

        Goodwill was created as part of the acquisition as the Company acquired an experienced and knowledgeable workforce. The purchase consideration was allocated to acquired tangible assets, identifiable intangible assets, and liabilities assumed at fair value and goodwill as follows:

 
  Consideration
Amount
 
 
  (in thousands)
 

Current assets

  $ 239  

Goodwill

    14,167  

Brand assets

    623  

Intangible technology assets

    250  

Covenants not to compete

    700  

Property and equipment

    48  

Current liabilities

    (38 )
       

Total consideration

  $ 15,989  
       

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Notes to Consolidated Financial Statements (Continued)

5. Summary of Discontinued Operations

        Our United Kingdom (UK) subsidiary, Liquidity Services Ltd, (LSL) has ceased its operations and has substantially liquidated its assets and liabilities. Through the acquisition of Geneva Industries (Geneva) in 2008, Liquidity Services Limited conducted sales of surplus assets and retail merchandise. Following the acquisition of Geneva, the economic downturn, and a low buyer adoption rate of online inventory sourcing created ongoing losses that were not sustainable.

        The components discontinued operations are as follows:

 
  Years ended September 30,  
 
  2011   2010   2009  
 
  (in thousands)
 

Revenue

  $ 9,976   $ 13,776   $ 17,272  

Expense

    (16,159 )   (16,818 )   (19,342 )

Depreciation and amortization

    (637 )   (516 )   (454 )

Interest income (expense)

    1,078     497     9  

Income tax benefit (provision)

    11,039         (172 )

Goodwill impairment and currency translation

    (17,464 )        
               

Loss from discontinued operations

  $ (12,167 ) $ (3,061 ) $ (2,687 )
               

        The impairment charge of $17.5 million includes the reversal of currency translation adjustments of $3.9 million previously recorded in Other Comprehensive Income since the time of acquisition and is included in the calculation of loss from discontinued operations. The remaining assets consist primarily of cash and the liabilities consist primarily of trade payables and accrued severance costs.

6. Property and Equipment

        Property and equipment, including equipment under capital lease obligations, consists of the following:

 
  September 30,  
 
  2011   2010  
 
  (in thousands)
 

Computers and purchased software

  $ 9,229   $ 6,521  

Office/Operational equipment

    3,398     3,837  

Furniture and fixtures

    504     621  

Vehicles

    559     463  

Leasehold improvements

    2,298     2,655  
           

    15,988     14,097  

Less: accumulated depreciation and amortization

    (8,946 )   (7,810 )
           

  $ 7,0421   $ 6,287  
           

        Depreciation and amortization expense related to property and equipment for the years ended September 30, 2011, 2010 and 2009 was $4,180,000, $3,087,000, and $2,261,000, respectively.

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Notes to Consolidated Financial Statements (Continued)

7. Intangible Assets

        Intangible assets at September 30, 2011 consisted of the following:

 
  Useful
Life
(in years)
  Gross
Carrying
Amount
  Accumulated
Amortization
  Net
Carrying
Amount
 
 
  (dollars in thousands)
 

Contract intangible

    7   $ 5,694   $ (5,016 ) $ 678  

Brand and technology

    5     1,447     (490 )   957  

Covenants not to compete

    5     2,500     (1,336 )   1,164  

Patent and trademarks

    3 - 10     289     (95 )   194  
                         

Total intangible assets, net

                    $ 2,993  
                         

        Future expected amortization of intangible assets at September 30, 2011 was as follows:

Years ending September 30,
   
 
 
  (in thousands)
 

2012

  $ 1,454  

2013

    469  

2014

    298  

2015

    298  

2016 and after

    474  

        Amortization expense related to intangible assets for the years ended September 30, 2011, 2010 and 2009 was $1,514,000, $1,335,000, and $1,214,000, respectively.

8. Debt

        In December 2002, and as subsequently amended, the Company entered into a senior credit facility with a bank, which provided for borrowings up to $30.0 million. This senior credit facility expired on April 30, 2010. The Company had no outstanding borrowings under this facility as of September 30, 2009 or April 30, 2010.

        On April 30, 2010, the Company entered into a new senior credit facility (the Agreement) with a bank, which provides for borrowings up to $30.0 million and expires on April 30, 2013. Borrowings under the Agreement bear interest at an annual rate equal to the 30 day LIBOR rate plus 1.25% (1.481% at September 30, 2011) due monthly. As of September 30, 2011, the Company had no outstanding borrowings under the Agreement.

        Borrowings under the Agreement are secured by substantially all of the assets of the Company. The Agreement contains certain financial and non-financial restrictive covenants including, among others, the requirements to maintain a minimum level of earnings before interest, income taxes, depreciation and amortization (EBITDA) and a minimum debt coverage ratio. As of September 30, 2011, the Company was in compliance with these covenants.

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Notes to Consolidated Financial Statements (Continued)

9. Commitments

        The Company leases certain office space and equipment under non-cancelable operating lease agreements, which expire at various dates through 2018. Certain of the leases contain escalation clauses and provide for the pass-through of increases in operating expenses and real estate taxes. Rent related to leases that have escalation clauses is recognized on a straight-line basis. Resulting deferred rent charges are included in other long-term liabilities and were $513,000and $499,000 at September 30, 2011 and 2010, respectively. Future minimum payments under the leases as of September 30, 2011 are as follows:

Years ending September 30,
  Operating  
 
  (in thousands)
 

2012

  $ 5,621  

2013

    4,953  

2014

    2,963  

2015

    1,757  

2016

    1,342  

2017 and after

    2,258  
       

Total future minimum lease payments

  $ 18,894  
       

        Amortization of fixed assets acquired through capital leases is included in depreciation and amortization expense.

        Rent expense for the years ended September 30, 2011, 2010 and 2009 was $6,800,000, $6,684,000, and $7,047,000, respectively.

10. 401(k) Benefit Plan

        The Company has a retirement plan (the Plan), which is intended to be a qualified plan under Section 401(k) of the Internal Revenue Code. The Plan is a defined contribution plan available to all eligible employees and allow participants to contribute up to the legal maximum of their eligible compensation, not to exceed the maximum tax-deferred amount allowed by the Internal Revenue Service. The Plan also allows the Company to make discretionary matching contributions. For the years ended September 30, 2011, 2010 and 2009, the Company contributed and recorded expense of approximately $703,000, $554,000, and $579,000, respectively, to the Plan.

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Notes to Consolidated Financial Statements (Continued)

11. Income Taxes

        The components of the provision for income taxes of continuing operations are as follows:

 
  Years ended September 30,  
 
  2011   2010   2009  
 
  (in thousands)
 

Current tax provision:

                   

U.S. Federal

  $ 13,019   $ 9,833   $ 7,128  

State

    2,374     3,254     2,367  

Foreign

             
               

    15,393     13,087     9,495  

Deferred tax benefit (expense):

                   

U.S. Federal

    (194 )   (958 )   (1,358 )

State

    260     65     (349 )

Foreign

             
               

    66     (893 )   (1,707 )
               

Total provision

  $ 15,459   $ 12,194   $ 7,788  
               

        Deferred taxes reflect the net tax effect of temporary differences between the carrying amounts of assets and liabilities for financial reporting purposes and the amounts used for income tax purposes. Significant components of the Company's deferred tax assets and liabilities are as follows:

 
  September 30,  
 
  2011   2010  
 
  (in thousands)
 

Deferred tax assets:

             

Net operating losses—Foreign

  $ 3,341   $ 1,780  

Net operating losses—US

    3,408     3,588  

Accrued vacation and bonus

    952     903  

Inventory capitalization

    1,810     1,863  

Allowance for doubtful accounts

    200     129  

Stock compensation expense

    4,672     4,025  

Depreciation

         

Other

    1,441     661  
           

Total deferred tax assets before valuation allowance

    15,824     12,949  

Less: valuation allowance

    (3,341 )   (1,733 )
           

Net deferred tax assets

    12,483     11,216  

Deferred tax liabilities:

             

Amortization of goodwill and intangibles

    1,556     1,306  

Depreciation

    1,781     963  

Other

    110     204  
           

Total deferred tax liabilities

    3,447     2,473  
           

Net deferred taxes

  $ 9,036   $ 8,743  
           

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Notes to Consolidated Financial Statements (Continued)

11. Income Taxes (Continued)

        The reconciliation of the U.S. federal statutory rate to the effective rate for continuing operations is as follows:

 
  Years ended September 30,  
 
  2011   2010   2009  

U.S. statutory rate

    35.0 %   35.0 %   35.0 %

Permanent items

    3.5 %   2.2 %   1.3 %

State taxes

    4.3 %   7.6 %   6.1 %

Changes in valuation allowance and other

        (0.1 %)   5.1 %

Net foreign rate differential

            0.6 %
               

Provision for income taxes

    42.8 %   44.7 %   48.1 %
               

        At September 30, 2011 and 2010, the Company had available foreign net operating loss (NOL) carryforwards of approximately $3,341,000 and $1,780,000 related to its UK subsidiary, which do not expire. Due to the discontinuation of its UK operations, the Company does not believe that it is more likely than not that the related deferred tax assets will be realized and a full valuation allowance has been recorded. In addition, the Company also recorded a deferred tax asset of $3,753,000 related to NOL carryforwards related to its acquisition of Network International, Inc. in 2010. These NOL carryforwards expire in 2023.

        The Company applies the authoritative guidance related to uncertainty in income taxes. The Company has concluded that there were no uncertain tax positions identified during its analysis. The Company's policy is to recognize interest and penalties in the period in which they occur in the income tax provision. The Company and its subsidiaries file income tax returns in the U.S. federal jurisdiction, various state and local jurisdictions and in foreign jurisdictions, primarily the U.K. Currently, the Company is not subject to any income tax examinations. The statute of limitations for years prior to fiscal 2008 is now closed. However, certain tax attribute carryforwards that were generated prior to fiscal 2008 may be adjusted upon examination by tax authorities if they are utilized.

12. Stockholders' Equity

        In conjunction with the Company's initial public offering, the board of directors and the Company's shareholders approved the 2006 Omnibus Long-Term Incentive Plan, or the 2006 Plan, on December 2, 2005. The 2005 Stock Option and Incentive Plan was terminated when the 2006 Plan became effective, immediately after the closing of the initial public offering.

        A portion of the options and restricted shares granted to employees vest based on certain performance conditions being satisfied by the Company. Performance-based stock options are tied to the Company's annual performance against pre-established internal targets and the actual payout under these awards may vary from zero to 100% of an employee's target payout, based upon the Company's actual performance during the previous twelve months. The performance-based stock options are also subject to vesting requirements and generally vest when the performance condition has been satisfied. The fair value for stock options granted during the period was estimated at the grant date using the Black-Scholes option pricing model, as described in Note 2, and the fair value of restricted shares granted is based on the closing price of the shares on the grant date. Compensation cost is recognized when the performance condition has been satisfied or when it becomes probable that the performance condition will be satisfied.

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Notes to Consolidated Financial Statements (Continued)

12. Stockholders' Equity (Continued)

        Under the 2006 Plan, 5,000,000 shares of common stock were initially reserved for issuance. In February 2009, at the Company's annual meeting of stockholders, the stockholders approved an increase of 5,000,000 shares of the Company's common stock to the shares available for issuance under the 2006 Plan. At September 30, 2009, there were 5,189,996 shares remaining reserved for issuance in connection with awards under the 2006 Plan. During fiscal year 2010, the Company granted options to purchase 624,566 shares to employees and directors with exercise prices between $9.05 and $13.96, and options to purchase 75,467 shares were forfeited. During fiscal year 2010, the Company granted 699,410 restricted shares to employees and directors at prices ranging from $9.05 to $13.96, and 45,026 restricted shares were forfeited. At September 30, 2010, there were 3,986,513 shares remaining reserved for issuance in connection with awards under the 2006 Plan. During fiscal year 2011, the Company granted options to purchase 321,072 shares to employees and directors with exercise prices between $14.30 and $17.02, and options to purchase 73,591 shares were forfeited. During fiscal year 2011, the Company granted 736,340 restricted shares to employees and directors at prices ranging from $12.88 to $25.52, and 150,112 restricted shares were forfeited. At September 30, 2011, there were 3,152,804 shares remaining reserved for issuance in connection with awards under the 2006 Plan. The maximum number of shares subject to options or stock appreciation rights that can be awarded under the 2006 Plan to any person is 1,000,000 per year. The maximum number of shares that can be awarded under the 2006 Plan to any person, other than pursuant to an option or stock appreciation right, is 700,000 per year. These shares and options generally vest over a period of one to four years conditioned on continued employment for the incentive period.

        The 2006 Plan permits the granting of options to purchase shares of common stock intended to qualify as incentive stock options under the Internal Revenue Code and stock options that do not qualify as incentive stock options ("non-qualified stock options"). The exercise price of each stock option may not be less than 100% of the fair market value of the common stock on the date of grant. However, if a grant recipient, who holds at least 10% of the common stock of the Company, receives an incentive stock option, the exercise price of such incentive stock option may not be less than 110% of the fair market value of the common stock on the date of grant. The term of each stock option is fixed by the compensation committee and may not exceed 10 years from the date of grant.

        The compensation committee may also award under the 2006 Plan:

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Notes to Consolidated Financial Statements (Continued)

12. Stockholders' Equity (Continued)

        On December 2, 2008, the Company's Board of Directors approved a $10.0 million share repurchase program. Under the program, the Company is authorized to repurchase the issued and outstanding shares of common stock. Share repurchases may be made through open market purchases, privately negotiated transactions or otherwise, at times and in such amounts as management deems appropriate. The timing and actual number of shares repurchased will depend on a variety of factors including price, corporate and regulatory requirements and other market conditions. The repurchase program may be discontinued or suspended at any time, and will be funded using our available cash. On February 2, 2010, the Company's Board of Directors approved an additional $10.0 million for the share repurchase program. On November 30, 2010, our Board of Directors approved an additional $10.0 million for the share repurchase program. On May 3, 2011, the Company's Board of Directors approved an additional $10.0 million for the share repurchase program. The Company's Board of Directors reviews the share repurchase program periodically, the last such review having occurred in May 2011. During the year ended September 30, 2009, 707,462 shares were purchased under the program for approximately $3,874,000. During the year ended September 30, 2010, 1,225,019 shares were purchased under the program for approximately $14,471,000. During the year ended September 30, 2011, 229,575 shares were purchased under the program for approximately $3,541,000. As of September 30, 2011, approximately $18,114,000 may yet be expended under the program.

        A summary of the Company's stock option activity for the years ended September 30, 2011 and 2010 is as follows:

 
  Options   Weighted-
Average
Exercise Price
 

Options outstanding at September 30, 2009

    4,609,226   $ 10.95  

Options granted

    624,566     10.92  

Options exercised

    (411,036 )   7.88  

Options canceled

    (75,467 )   12.24  
             

Options outstanding at September 30, 2010

    4,747,289     11.20  

Options granted

    321,072     15.21  

Options exercised

    (2,100,223 )   11.26  

Options canceled

    (73,591 )   13.18  
             

Options outstanding at September 30, 2011

    2,894,547     11.55  
             

Options exercisable at September 30, 2011

    1,536,884     12.05  
             

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Notes to Consolidated Financial Statements (Continued)

12. Stockholders' Equity (Continued)

        The following table summarizes information about options outstanding at September 30, 2011:

 
  Options Outstanding  
Range of Exercise Price
  Number Outstanding   Weighted-
Average
Remaining
Contractual Life
  Weighted-
Average
Exercise Price
 

$2.00 – 8.00

    456,090     6.99   $ 7.34  

$8.23 – $20.88

    2,438,457     6.99     12.33  
                   

    2,894,547     6.99     11.54  
                   

        Volatility rates from 40% – 72%, a dividend rate of 0%, risk free interest rates that ranged from 0.26% – 5.05% and a forfeiture rate of 19.0%,

        The intrinsic value of outstanding and exercisable options at September 30, 2011 is approximately $59,403,000 and $30,766,000, respectively, based on a stock price of $32.07 on September 30, 2011.

        The weighted average grant date fair value of options granted during 2011, 2010 and 2009 was $15.21, $4.02, and $3.51, respectively.

        The intrinsic value of options exercised at September 30, 2011, 2010, and 2009 was $43,706,000, $3,342,000, and $1,090,000, respectively.

        A summary of the Company's restricted share activity for the years ended September 30, 2011 and 2010 is as follows:

 
  Restricted
Shares
  Weighted-
Average
Fair Value
 

Unvested restricted shares at September 30, 2009

    462,836   $ 8.88  

Restricted shares granted

    699,410     10.00  

Restricted shares vested

    (144,053 )   8.47  

Restricted shares canceled

    (45,026 )   9.30  
             

Unvested restricted shares at September 30, 2010

    973,167     9.73  

Restricted shares granted

    736,340     16.20  

Restricted shares vested

    (265,313 )   9.77  

Restricted shares canceled

    (150,112 )   12.06  
             

Unvested restricted shares at September 30, 2011

    1,294,082     13.13  
             

        For the years ended September 30, 2011, 2010 and 2009, the Company recorded stock-based compensation of $9,136,000, $7,891,000 and $6,465,000, respectively. The total costs related to unvested awards, not yet recognized, as of September 30, 2011 was $19,068,000, which will be recognized over the weighted average vesting period of 29 months.

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Notes to Consolidated Financial Statements (Continued)

13. Fair Value Measurement

        The Company measures and records in the accompanying consolidated financial statements certain assets and liabilities at fair value on a recurring basis. Authoritative guidance issued by the FASB establishes a fair value hierarchy for those instruments measured at fair value that distinguishes between assumptions based on market data (observable inputs) and the Company's assumptions (unobservable inputs). The hierarchy consists of three levels:

Level 1   Quoted market prices in active markets for identical assets or liabilities;
Level 2   Inputs other than Level 1 inputs that are either directly or indirectly observable; and
Level 3   Unobservable inputs developed using estimates and assumptions developed by the Company, which reflect those that a market participant would use.

        As of September 30, 2011 and 2010, the Company's Level 1 short-term investments of $0 and $33,405,000, respectively, are the only financial assets measured at fair value. As of September 30, 2011 and 2010, the Company's liability for earn-outs related to the Network International and TruckCenter.com acquisitions of $10,151,000 and $2,805,000, respectively, is the only liability measured at fair value on a recurring basis and is classified as Level 3 within the fair value hierarchy. The changes in liabilities measured at fair value for which the Company has used Level 3 inputs to determine fair value for the year ended September 30, 2011 are as follows ($ in thousands):

 
  Level 3
Liabilities
 

Balance at September 30, 2009

     

Acquisition contingent consideration

  $ 2,805  

Purchases and issuances

     

Settlements

     

Unrealized gains (losses), net

     
       

Balance at September 30, 2010

    2,805  

Acquisition contingent consideration

    11,684  

Purchases and issuances

     

Settlements

    (4,338 )

Unrealized gains (losses), net

     
       

Balance at September 30, 2011

  $ 10,151  
       

        The Company did not have any Level 3 assets or liabilities prior to fiscal year 2010.

        When valuing its Level 3 liability, the Company gives consideration to operating results, financial condition, economic and/or market events, and other pertinent information that would impact its estimate of the expected earn-out payment. The valuation procedures are primarily based on management's projection of EBITDA for Network International, and of EBITDA and revenue for TruckCenter.com, and applying a discount to the expected proceeds to estimate fair value. Because of the inherent uncertainty, this estimated value may differ significantly from the value that would have been used had a ready market for the liability existed, and it is reasonably possible that the difference could be material.

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Liquidity Services, Inc. and Subsidiaries

Notes to Consolidated Financial Statements (Continued)

14. Quarterly Results (Unaudited)

        The following table sets forth for the eight most recent quarters the selected unaudited quarterly consolidated statement of operations data. The unaudited quarterly consolidated statement of operations data has been prepared on the same basis as the Company's audited consolidated financial statements and, in the opinion of management, includes all adjustments, consisting only of normal recurring adjustments, necessary for the fair presentation of this data.

 
  Three months ended  
 
  Dec. 31,
2009
  Mar. 31,
2010
  June 30,
2010
  Sept. 30,
2010
  Dec. 31,
2010
  Mar. 31,
2011
  June 30,
2011(1)
  Sept. 30,
2011(2)
 
 
  (in thousands, except share and per share data)
 

Revenue from continuing operations

  $ 60,645   $ 72,106   $ 70,075   $ 70,189   $ 75,450   $ 89,413   $ 83,310   $ 79,205  
                                   

Income before provision for income taxes from continuing operations

  $ 6,036   $ 7,130   $ 8,736   $ 5,794   $ 3,773   $ 11,488   $ 12,454   $ 9,613  
                                   

Income from continuing operations

  $ 3,391   $ 4,158   $ 4,745   $ 2,780   $ 2,147   $ 6,158   $ 5,691   $ 6,683  

Loss from discontinued operations(1)(2)

    (451 )   (581 )   (1,755 )   (274 )   (764 )   (1,099 )   (6,747 )   (3,557 )
                                   

Net income (loss)

  $ 2,940   $ 3,577   $ 2,990   $ 2,506   $ 1,383   $ 5,059   $ (1,056 ) $ 3,126  
                                   

Basic earnings (loss) per common share:

                                                 
 

From continuing operations

  $ 0.12   $ 0.15   $ 0.18   $ 0.10   $ 0.08   $ 0.22   $ 0.20   $ 0.23  
 

From discontinued operations

    (0.01 )   (0.02 )   (0.07 )   (0.01 )   (0.03 )   (0.04 )   (0.24 )   (0.12 )
                                   

Basic earnings (loss) per common share

  $ 0.11   $ 0.13   $ 0.11   $ 0.09   $ 0.05   $ 0.18   $ (0.04 ) $ 0.11  
                                   

Diluted earnings (loss) per common share:

                                                 
 

From continuing operations

  $ 0.12   $ 0.15   $ 0.17   $ 0.10   $ 0.08   $ 0.22   $ 0.19   $ 0.22  
 

From discontinued operations:

    (0.01 )   (0.02 )   (0.06 )   (0.01 )   (0.03 )   (0.04 )   (0.23 )   (0.12 )
                                   

Diluted earnings (loss) per common share

  $ 0.11   $ 0.13   $ 0.11   $ 0.09   $ 0.05   $ 0.18   $ (0.04 ) $ 0.10  
                                   

Basic weighted average shares outstanding

    27,539,308     27,046,617     26,959,713     26,846,424     27,207,288     27,798,989     27,928,750     28,512,433  
                                   

Diluted weighted average shares outstanding

    27,673,241     27,228,908     27,371,132     27,354,250     28,291,022     28,068,461     29,440,811     30,527,438  
                                   

(1)
The Company recorded in discontinued operations an impairment charge of $16.6 million related to goodwill from the Company's UK operations and a worthless stock deduction benefit of $9.2 million.

(2)
The Company recorded in income from discontinued operations currency translation adjustment losses of $0.8 million related to its investment in its UK subsidiary.

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Liquidity Services, Inc. and Subsidiaries

Notes to Consolidated Financial Statements (Continued)

15. Subsequent Events

        On October 1, 2011, LSI completed its acquisition of the assets of Jacobs Trading, LLC. The acquisition price includes an upfront cash payment of $80.0 million, a seller subordinated 5% note of $40.0 million, stock consideration of $24.5 million and an earn-out payment. Under the terms of the agreement, the earn-out is based on EBITDA earned by Jacobs during the trailing 12 months ending December 31, 2012 and 2013. The Company's estimate of the fair value of the earn-out as of October 1, 2011 is $8.2 million out of a possible total earn out payment of $30.0 million. As of September 30, 2011, the Company has incurred $1.7 million of acquisition costs, which were expensed as incurred. Jacobs is a leading remarketer for the sale of surplus and returned consumer goods. Jacobs conducts its sales on a purchase model basis using its marketplace, an extensive global buyer base and product domain expertise.

        Under the acquisition method of accounting, the total estimated purchase price is allocated to Jacobs' net tangible and intangible assets acquired and liabilities assumed based on their estimated fair values as of October 1, 2011, the effective date of the acquisition of Jacobs. Based on management's preliminary valuation of the fair value of tangible and intangible assets acquired and liabilities assumed, which are based on estimates and assumptions that are subject to change, and other factors, the preliminary estimated purchase price is allocated as follows:

 
  Consideration
Amount
 
 
  (in thousands)
 

Accounts receivable

  $ 4,710  

Inventory

    6,059  

Prepaid expenses

    120  

Goodwill

    110,226  

Vendor contract intangible asset

    33,300  

Covenants not to compete

    2,400  

Property and equipment

    847  

Accounts payable

    (1,837 )

Accrued liabilities

    (3,101 )
       

Total consideration

  $ 152,724  
       

        Goodwill was created as part of the acquisition as the Company acquired an experienced and knowledgeable workforce, all of which is expected to be tax deductable as a result of the asset purchase structure of the transaction. The pro forma revenue and earnings of the Company, including the Jacobs acquisition, was $352.0 million and $15.2 million, respectively.

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LIQUIDITY SERVICES, INC.
SCHEDULE II—VALUATION AND QUALIFYING ACCOUNTS
(dollars in thousands)

 
  Balance at
beginning
of period
  Charged to
expense
  Reductions   Balance at
end of
period
 

Deferred tax valuation allowance (deducted from net deferred tax assets)

                         

Year ended September 30, 2009

  $ 208   $ 1,287       $ 1,495  

Year ended September 30, 2010

    1,495     857     619     1,733  

Year ended September 30, 2011

    1,733     1,608         3,341  

Allowance for doubtful accounts (deducted from accounts receivable)

                         

Year ended September 30, 2009

  $ 519   $ 464   $ 370   $ 613  

Year ended September 30, 2010

    613     34     319     328  

Year ended September 30, 2011

    328     290     104     514  

Inventory allowance (deducted from inventory)

                         

Year ended September 30, 2009

  $ 314   $ 500   $ 314   $ 500  

Year ended September 30, 2010

    500     512         1,012  

Year ended September 30, 2011

    1,012     194     216     990  

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EXHIBIT INDEX

Exhibit No.   Description
  2.1   Share Purchase Agreements, dated as of April 5, 2008 and April 6, 2008, by and between Liquidity Services, Inc., and its wholly-owned subsidiary, Liquidity Services, Ltd., on the one hand, and David Mark Jacobs, Simon Jacobs, Darren Lee Innocent and Darren Malcolm Dorrington, on the other, incorporated herein by reference to Exhibit 2.1 to the Company's Quarterly Report on Form 10-Q filed with the SEC on August 8, 2008.

 

2.2

 

Agreement and Plan of Merger, dated June 8, 2010, by and among Liquidity Services, Inc., Leon Kennedy Acquisition Corp., Network International, Inc. and Eton Venture Services, Ltd. Co. incorporated herein by reference to Exhibit 2.1 to the Company's Current Report on Form 8-K, filed with the SEC on June 21, 2010.

 

2.3

 

Asset Purchase Agreement, dated May 24, 2011, among Youk Acquisition Partners, LLC, TruckCenter.com, LLC, Corey P. Schlossmann, Samantha Schlossmann, Jessica Schlossmann and Katie Schlossmann, incorporated herein by reference to Exhibit 2.1 to the Company's Quarterly Report on Form 10-Q, filed with the SEC on August 9, 2011.

 

2.4

 

Asset Purchase Agreement dated as of September 1, 2011, among Liquidity Services, Inc., Profar Acquisition Partners, LLC and Jacobs Trading, LLC, incorporated herein by reference to the Company's Current Report on Form 8-K, filed with the SEC on September 1, 2011.

 

3.1

 

Fourth Amended and Restated Certificate of Incorporation, incorporated herein by reference to Exhibit 3.1 to Amendment No. 2 to the Company's Registration Statement on Form S-1 (Registration No. 333-129656), filed with the SEC on January 17, 2006.

 

3.2

 

Amended and Restated Bylaws, incorporated herein by reference to Exhibit 3.2 to Amendment No. 2 to the Company's Registration Statement on Form S-1 (Registration No. 333-129656), filed with the SEC on January 17, 2006.

 

4.1

 

Form of Certificate of Common Stock of the Company, incorporated herein by reference to Exhibit 4.1 to Amendment No. 5 to the Company's Registration Statement on Form S-1 (Registration No. 333-129656), filed with the SEC on February 21, 2006.

 

4.2

 

Registration Rights Agreement, dated September 3, 2004, by and between the Company and ABS Capital Partners IV, L.P., ABS Capital Partners IV-A, L.P., ABS Capital Partners IV Offshore L.P. and ABS Capital Partners IV Special Offshore L.P., incorporated herein by reference to Exhibit 4.2 to Amendment No. 2 to the Company's Registration Statement on Form S-1 (Registration No. 333-129656), filed with the SEC on January 17, 2006.

 

10.1

 

Defense Logistics Agency, Surplus Commercial Property, Defense Reutilization and Marketing Service, Invitation for Bids, No. 99-0001, December 2000, incorporated herein by reference to Exhibit 10.1 to the Company's Registration Statement on Form S-1 (Registration No. 333-129656), filed with the SEC on November 14, 2005

 

10.2

 

Defense Logistics Agency, Multi-Year Sale of Surplus Scrap Material at Locations Nationwide, Defense Reutilization and Marketing Service, Invitation for Bids, No. 99-4001, December 7, 2004, incorporated herein by reference to Exhibit 10.2 to the Company's Registration Statement on Form S-1 (Registration No. 333-129656), filed with the SEC on November 14, 2005.

 

10.3.1

 

Executive Employment Agreement, dated September 2, 2004, between the Company and William P. Angrick, III, incorporated herein by reference to Exhibit 10.3.1 to Amendment No. 3 to the Company's Registration Statement on Form S-1 (Registration No. 333-129656), filed with the SEC on February 1, 2006.#

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Exhibit No.   Description
  10.3.2   Amendment to Executive Employment Agreement between the Company and William P. Angrick, III, dated January 26, 2006, incorporated herein by reference to Exhibit 10.3.2 to Amendment No. 3 to the Company's Registration Statement on Form S-1 (Registration No. 333-129656), filed with the SEC on February 1, 2006.#

 

10.3.3

 

Amendment to Executive Employment Agreement between the Company and William P. Angrick, III, dated January 9, 2007, incorporated herein by reference to Exhibit 10.1 to the Company's Current Report on Form 8-K, filed with the SEC on January 16, 2007.#

 

10.4.1

 

Executive Employment Agreement, dated September 2, 2004, between the Company and Jaime Mateus-Tique, incorporated herein by reference to Exhibit 10.4.1 to Amendment No. 3 to the Company's Registration Statement on Form S-1 (Registration No. 333-129656), filed with the SEC on February 1, 2006.#

 

10.4.2

 

Amendment to Executive Employment Agreement between the Company and Jaime Mateus-Tique, dated January 25, 2006, incorporated herein by reference to Exhibit 10.4.2 to Amendment No. 3 to the Company's Registration Statement on Form S-1 (Registration No. 333-129656), filed with the SEC on February 1, 2006.#

 

10.5.1

 

Executive Employment Agreement, dated January 27, 2005, between the Company and James M. Rallo, incorporated herein by reference to Exhibit 10.6.1 to Amendment No. 3 to the Company's Registration Statement on Form S-1 (Registration No. 333-129656), filed with the SEC on February 1, 2006.#

 

10.5.2

 

Amendment to Executive Employment Agreement between the Company and James M. Rallo, dated January 25, 2006, incorporated herein by reference to Exhibit 10.6.2 to Amendment No. 3 to the Company's Registration Statement on Form S-1 (Registration No. 333-129656), filed with the SEC on February 1, 2006.#

 

10.6.1

 

Executive Employment Agreement, dated June 13, 2001, between Government Liquidation.com, LLC and Thomas Burton, incorporated herein by reference to Exhibit 10.7.1 to Amendment No. 3 to the Company's Registration Statement on Form S-1 (Registration No. 333-129656), filed with the SEC on February 1, 2006.#

 

10.6.2

 

Amendment to Executive Employment Agreement between Government Liquidation.com, LLC and Thomas Burton, dated January 25, 2006, incorporated herein by reference to Exhibit 10.7.2 to Amendment No. 3 to the Company's Registration Statement on Form S-1 (Registration No. 333-129656), filed with the SEC on February 1, 2006.#

 

10.7.1

 

Executive Employment Agreement, dated November 11, 2005, between the Company and James E. Williams, incorporated herein by reference to Exhibit 10.8.1 to Amendment No. 3 to the Company's Registration Statement on Form S-1 (Registration No. 333-129656), filed with the SEC on February 1, 2006.#

 

10.7.2

 

Amendment to Executive Employment Agreement between the Company and James E. Williams, dated January 26, 2006, incorporated herein by reference to Exhibit 10.8.2 to Amendment No. 3 to the Company's Registration Statement on Form S-1 (Registration No. 333-129656), filed with the SEC on February 1, 2006.#

 

10.8

 

Executive Employment Agreement, dated October 15, 2007, between the Company and Eric C. Dean, incorporated herein by reference to Exhibit 10.9 to the Company's Annual Report on Form 10-K filed with the SEC on December 7, 2007.#

 

10.9

 

Executive Employment Agreement, dated August 25, 2008, between the Company and G. Charles Roy, incorporated herein by reference to Exhibit 99.1 to the Company's Current Report on Form 8-K, filed with the SEC on September 8, 2008.#

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Table of Contents

Exhibit No.   Description
  10.10   2005 Stock Option and Incentive Plan, incorporated herein by reference to Exhibit 10.8 to the Company's Registration Statement on Form S-1 (Registration No. 333-129656), filed with the SEC on November 14, 2005.#

 

10.11

 

2006 Omnibus Long-Term Incentive Plan, incorporated by reference to Exhibit 10.2 to the Company's Quarterly Report on Form 10-Q, filed with the SEC on May 6, 2009.#

 

10.12

 

Form of Indemnification Agreement for directors and officers, incorporated herein by reference to Exhibit 10.11 to Amendment No. 3 to the Company's Registration Statement on Form S-1 (Registration No. 333-129656), filed with the SEC on February 1, 2006.#

 

10.13.1

 

Amendment to Commercial Venture II (CV-II) (Sales Contract Number 99-0001-0002), dated as of September 12, 2006, between Surplus Acquisition Venture, LLC (a wholly-owned subsidiary of Liquidity Services,  Inc.) and Defense Reutilization and Marketing Service of the U.S. Department of Defense, incorporated herein by reference to Exhibit 10.1 to the Company's Current Report on Form 8-K, filed with the SEC on September 13, 2006.

 

10.13.2

 

Supplemental Agreement, dated as of May 13, 2008, relating to Commercial Venture II (CV-II) (Sales Contract Number 99-0001-0002) between Surplus Acquisition Venture, LLC (a wholly-owned subsidiary of Liquidity Services, Inc.) and the Defense Reutilization and Marketing Service of the U.S. Department of Defense, incorporated herein by reference to Exhibit 10.1 to the Company's Quarterly Report on Form 10-Q filed with the SEC on August 8, 2008.

 

10.13.3

 

Notice of Termination of Commercial Venture II (CV-II) (Sales Contract Number 99-0001-0002), incorporated herein by reference to Exhibit 10.1 to the Company's Current Report on Form 8-K filed with the SEC on September 5, 2008.

 

10.13.4

 

Supplemental Agreement 18 (Sales Contract Number 99-0001-0002), incorporated herein by reference to Exhibit 10.1 to the Company's Current Report on Form 8-K filed with the SEC on November 12, 2008.

 

10.14

 

LSI Non-Employee Director Compensation Plan, incorporated herein by reference to Exhibit 10.1 to the Company's Current Report on Form 8-K, filed with the SEC on August 9, 2006.

 

10.15

 

Form of Notice of Stock Option Grant, incorporated herein by reference to Exhibit 99.1 to the Company's Current Report on Form 8-K, filed with the SEC on April 4, 2006.#

 

10.16

 

Amendment No. 1 to Sales Contract Number 99-4001-0004, dated as of May 21, 2007, between DOD Surplus, LLC (a wholly-owned subsidiary of Liquidity Services, Inc.) and the Defense Reutilization and Marketing Service of the U.S. Department of Defense, incorporated herein by reference to Exhibit 10.1 to the Company's Current Report on Form 8-K filed with the SEC on May 29, 2007.

 

10.17

 

Amendment No. 2 to Sales Contract Number 99-4001-0004, dated as of May 21, 2007, between DOD Surplus, LLC (a wholly-owned subsidiary of Liquidity Services, Inc.) and the Defense Reutilization and Marketing Service of the U.S. Department of Defense, incorporated herein by reference to Exhibit 10.2 to the Company's Current Report on Form 8-K filed with the SEC on May 29, 2007.

 

10.18

 

Surplus Usable Property Sales Contract (Sales Contract Number 08-0001-0001) between Liquidity Services, Inc. and the Defense Reutilization and Marketing Service of the U.S. Department of Defense, incorporated herein by reference to Exhibit 10.1 to the Company's Current Report on Form 8-K filed with the SEC on August 6, 2008.

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Exhibit No.   Description
  10.19   Supplemental Agreement 1 (Sales Contract Number 08-0001-0001), incorporated herein by reference to Exhibit 10.1 to the Company's Current Report on Form 8-K filed with the SEC on February 5, 2009.

 

10.20

 

Form of Notice of Restricted Stock Grant, incorporated herein by reference to Exhibit 10.27 to the Company's Annual Report on Form 10-K filed with the SEC on December 8, 2008.#

 

10.21

 

Financing and Security Agreement, dated April 30, 2010, by and between Liquidity Services, Inc. and Bank of America, N.A., incorporated herein by reference to Exhibit 10.1 to the Company's Current Report on Form 8-K, filed with the SEC on May 6, 2010.

 

10.22

 

First Amendment to Financing and Security Agreement dated as of September 1, 2011 between Liquidity Services, Inc. and Bank of America, N.A., incorporated herein by reference to Exhibit 10.2 to the Company's Current Report on Form 8-K, filed with the SEC on September 1, 2011.

 

10.23

 

Revolving Credit Note, dated April 30, 2010, issued by Liquidity Services, Inc. to Bank of America, N.A., incorporated herein by reference to Exhibit 10.2 to the Company's Current Report on Form 8-K, filed with the SEC on May 6, 2010.

 

10.24

 

Guaranty of Payment Agreement, dated April 30, 2010, by GovDeals, Inc. for the benefit of Bank of America, N.A., incorporated herein by reference to Exhibit 10.3 to the Company's Current Report on Form 8-K, filed with the SEC on May 6, 2010.

 

10.25

 

Security Agreement, dated April 30, 2010, by GovDeals, Inc. for the benefit of Bank of America., N.A., incorporated herein by reference to Exhibit 10.4 to the Company's Current Report on Form 8-K, filed with the SEC on May 6, 2010.

 

10.26

 

Pledge, Assignment and Security Agreement (GovDeals), dated April 30, 2010, by Liquidity Services, Inc. for the benefit of Bank of America, N.A., incorporated herein by reference to Exhibit 10.5 to the Company's Current Report on Form 8-K, filed with the SEC on May 6, 2010.

 

10.27

 

Guaranty of Payment Agreement, dated April 30, 2010, by Surplus Acquisition Venture, LLC for the benefit of Bank of America, N.A., incorporated herein by reference to Exhibit 10.6 to the Company's Current Report on Form 8-K, filed with the SEC on May 6, 2010.

 

10.28

 

Security Agreement, dated April 30, 2010, by Surplus Acquisition Venture, LLC for the benefit of Bank of America., N.A., incorporated herein by reference to Exhibit 10.7 to the Company's Current Report on Form 8-K, filed with the SEC on May 6, 2010.

 

10.29

 

Pledge, Assignment and Security Agreement (Surplus Acquisition Venture), dated April 30, 2010, by Liquidity Services, Inc. for the benefit of Bank of America, N.A., incorporated herein by reference to Exhibit 10.8 to the Company's Current Report on Form 8-K, filed with the SEC on May 6, 2010.

 

10.30

 

Shareholders' Agreement dated as of September 1, 2011 among Liquidity Services, Inc., Jacobs Trading, LLC, WGD, Inc., Irwin L. Jacobs and Howard Grodnick, incorporated herein by reference to Exhibit 10.1 to the Company's Current Report on Form 8-K, filed with the SEC on September 1, 2011.

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Exhibit No.   Description
  10.31   Supplemental Agreement to Contract for Multi-Year Sale of Surplus Scrap Material at Locations Nationwide (Contract Number 99-4001-0004), dated as of September 22, 2011, between Liquidity Services, Inc. and the Defense Logistics Agency Disposition Services, incorporated herein by reference to Exhibit 10.1 to the Company's Current Report on Form 8-K, filed with the SEC on September 26, 2011.

 

10.32

 

Master Merchandise Salvage Contract between Profar Acquisition Partners, LLC and Wal-Mart Stores, Inc. ("Wal-Mart"), dated May 13, 2011.*

 

21.1

 

List of Subsidiaries

 

23.1

 

Consent of Ernst & Young LLP

 

24.1

 

Power of Attorney (included on signature page)

 

31.1

 

Certification of Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.

 

31.2

 

Certification of Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.

 

32.1

 

Certification of Chief Executive Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.

 

32.2

 

Certification of Chief Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.

 

101

 

The following materials from the Registrant's Annual Report on Form 10-K for the year ended September 30, 2011, formatted in Extensible Business Reporting Language (XBRL): (i) Consolidated Balance Sheets, (ii) Consolidated Statements of Operations, (iii) Consolidated Statements of Changes in Stockholders' Equity, (iv) Consolidated Statements of Cash Flows, and (v) Notes to Consolidated Financial Statements.

#
Designates management or compensation plans.

*
Confidential treatment has been requested for portions of this document. The omitted portions of this document have been filed with the Securities and Exchange Commission.

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SIGNATURES

        Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized on December 9, 2011.

  LIQUIDITY SERVICES, INC.

 

By:

 

/s/ WILLIAM P. ANGRICK, III


William P. Angrick, III
Chairman of the Board of Directors
and Chief Executive Officer

        We, the undersigned directors and officers of Liquidity Services, Inc., hereby severally constitute William P. Angrick, III and James E. Williams, and each of them singly, our true and lawful attorneys with full power to them and each of them to sign for us, in our names in the capacities indicated below, any and all amendments to this Annual Report on Form 10-K filed with the Securities and Exchange Commission.

        Pursuant to the requirements of the Securities Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities indicated on December 9, 2011.

Signature
 
Title

 

 

 
/s/ WILLIAM P. ANGRICK, III

William P. Angrick, III
  Chairman of the Board of Directors and Chief Executive Officer (Principal Executive Officer)

/s/ JAMES M. RALLO

James M. Rallo

 

Chief Financial Officer and Treasurer (Principal Financial Officer and Principal Accounting Officer)

/s/ JAIME MATEUS-TIQUE

Jaime Mateus-Tique

 

Director

/s/ PHILIP A. CLOUGH

Phillip A. Clough

 

Director

/s/ PATRICK W. GROSS

Patrick W. Gross

 

Director

/s/ FRANKLIN D. KRAMER

Franklin D. Kramer

 

Director

/s/ F. DAVID FOWLER

F. David Fowler

 

Director

/s/ DAVID A. PERDUE, JR.

David A. Perdue, Jr

 

Director

/s/ GEORGE H. ELLIS

George H. Ellis

 

Director

89




Exhibit 10.32

 

Pursuant to 17 CFR 240.24b-2, confidential information has been omitted in places marked ‘[***]’ and has been filed separately with the Securities and Exchange Commission pursuant to a Confidential Treatment Application filed with the Commission.

 

MASTER MERCHANDISE SALVAGE CONTRACT

 

This Master Merchandise Salvage Contract (“Master Contract”) is made on May 13, 2011 (“Effective Date”), by and between Wal-Mart Stores, Inc., a Delaware corporation, having its principal office at 702 SW 8th St., Bontonville, AR 72716 and (hereinafter referred to as “Wal-Mart”), and Jacobs Trading, LLC, a Minnesota limited liability company, having its principal office at 8090 Excelsior Blvd., Hopkins, MN 55343 (hereinafter referred to as “Contractor”). “Party” or “Parties” shall mean, individually, Wal-Mart or Contractor as the context requires and, collectively, Wal-Mart and Contractor.

 

RECITALS

 

WHEREAS, Wal-Mart and its subsidiaries and affiliates as part of their respective retail business operations own, operate and conduct business through numerous distribution centers and retail units, (collectively, the “Facilities”) throughout the United States;

 

WHEREAS, consumer products are received and shipped to and from these Facilities in the normal course of business;

 

WHEREAS, Wal-Mart regularly has need to liquidate or salvage quantities of consumer products that have been removed from the sales stream of its retail operations (the “Merchandise”) and sent to its Return Center(s);

 

WHEREAS, Wal-Mart desires to liquidate and salvage this Merchandise and from time to time make such Merchandise available for purchase by Contractor; and

 

WHEREAS, Contractor desires to purchase such Merchandise.

 

NOW, THEREFORE, In consideration of their mutual promises set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Wal-Mart and Contractor agree as follows.

 

1.                                       Agreement to Sell Merchandise.  This Master Contract sets forth the general terms and conditions of the business relationship between Wal-Mart and Contractor. Wal-Mart agrees to sell Merchandise to Contractor as described in the form set forth in Exhibit A, Scope of Salvaged Merchandise. The Parties may execute one or more Exhibit A(s), each of which will be a separate Scope of Salvaged Merchandise. Upon the Parties executing and delivering a Scope of Salvaged Merchandise, such Scope of Salvaged Merchandise shall be incorporated herein and be deemed to part of this Master Contract. All Merchandise offered for sale to Contractor pursuant to this Master Contract shall be covered by and subject to the terms of this Master Contract; any conflict in the terms of a Scope of Salvaged Merchandise with the terms of this Master Contract set forth herein shall be resolved in favor of the terms of that Scope of Salvaged Merchandise.

 

2.                                       Prices; Payment.  The price to be paid by Contractor for any Merchandise purchased pursuant to this Master Contract is listed on the respective Exhibit A, Scope of Salvaged Merchandise and incorporated by reference into this Master Contract. Promptly following Contractor taking possession of the Merchandise upon the pick up or shipment of the trailer, but in no event later than seven (7) calendar days after taking such possession and receiving the appropriate Wal-Mart shipping and invoicing documentation in substantially the form attached as Exhibit C, Load Summary Sheet or as the Parties otherwise agree, Contractor shall pay Wal-Mart in full for Merchandise, by wire transfer or other method acceptable to Wal-Mart.

 

3.                                       Tender; Pick Up by Contractor; Level of Service.  As the parties may agree, Contractor shall provide and maintain an adequate number of trailers at each Return Center onto which Wal-Mart will load the Merchandise. If trailers are not available when needed by a Return Center, the Contractor agrees that it will provide any trailers requested by a Return Center within twenty-four (24) hours of notification by Wal-Mart. Wal-Mart will use commercially reasonable efforts to maximize the physical load capacity of each trailer. Wal-Mart

 

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shall notify Contractor by email/telephone/fax when any trailer(s) are loaded and available for transport. Contractor agrees that it will pick up and transport trailer(s) within forty-eight (48) hours of such notice (“Level of Service”). Wal-Mart shall tender the Merchandise to Contractor at the Return Center(s), at which time Contractor shall take and accept possession of the Merchandise. [***]. [***]. [***].

 

4.                                       Title and Risk of Loss.   Unless otherwise agreed to by the Parties on an Exhibit A, Scope of Salvaged Merchandise, title and risk of loss with respect to the Merchandise shall pass to Contractor upon transfer of possession of such Merchandise to Contractor at the Facility.

 

5.                                       As-Is, Where-Is, With All Faults.   Contractor understands and acknowledges that Merchandise is being sold on a liquidation or salvage basis by Wal-Mart, and therefore, such Merchandise will be damaged, defective, impaired and/or expired to varying degrees affecting marketing, sale, distribution and disposal. Accordingly, Contractor’s purchases of Merchandise pursuant to this Master Contract is on an “As-Is, Where-Is, With All Faults” basis. WAL-MART MAKES NO WARRANTIES AND SPECIFICALLY DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED, AS TO THE MERCHANDISE OR ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO IMPLIED WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE IS GIVEN BY WAL-MART OR SHALL ARISE BY OR IN CONNECTION WITH THIS MASTER CONTRACT AND/OR WAL-MART AND/OR CONTRACTOR’S CONDUCT IN RELATION THERETO OR TO EACH OTHER AND IN NO EVENT SHALL WAL-MART BE LIABLE ON ANY SUCH WARRANTY WITH RESPECT TO ANY MERCHANDISE. CONTRACTOR ACCEPTS ALL MERCHANDISE IN ACCORDANCE WITH THIS MASTER CONTRACT ON AN “AS IS, WHERE IS, WITH ALL FAULTS” BASIS. Contractor further acknowledges and agrees that the warranties and/or guaranties of any supplier that provided the Merchandise shall not transfer with the Merchandise. Notwithstanding the above, Wal-Mart warrants that its has good title to the Merchandise, free of liens and encumbrances.

 

6.                                       Restriction on Disposition of Merchandise.   (a) Contractor shall not transport, store, market, sell, distribute or dispose of any Merchandise in any country in violation of U.S. law or anywhere in violation of local, state or federal law. It is the sole responsibility of Contractor to adhere to all state and federal requirements for transport and storage of the Merchandise and further marketing, sale, distribution and disposal of the Merchandise.

 

(b)   Contractor shall not sell, lease or otherwise transfer, market, distribute or dispose of any of the Merchandise, unless Contractor first demanufactures such Merchandise, including any Merchandise to be sold outside of the United States. For purposes of this Master Contract, “demanufacture” means, In accordance Wal-Mart’s specifications, either (a) to remove all of the identifying marks, including, but not limited to, manufacturer’s or retailer’s names, logos, serial numbers, UPC numbers, RA numbers, and other identifying marks (including but not limited to tags, labels, price stickers, bar codes, or other carton or packaging markings) from the packaging, or (b) to clearly and conspicuously mark the packaging so that it is readily apparent and obvious that the Merchandise has been through a salvage process. Contractor agrees to further demanufacture the Merchandise by making a vertical mark through the bar code of the Merchandise. The failure of Contractor to demanufacture any of the Merchandise shall be considered a material breach and default by Contractor of this Master Contract and grounds for termination of this Master Contract by Wal-Mart pursuant to section 8 below.

 

(c)   With regard to electronic Merchandise purchased under this Master Contract, Contractor shall not sell, lease or otherwise transfer, market, distribute or dispose of electronic Merchandise without first reformatting or otherwise totally crasing any personal data stored in the memory of the electronic device based on the Department

 

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of Defense (DOD) regulation 5220-22.M, paragraph 8-306. The failure of Contractor to erase or otherwise remove electronic Merchandise of any and all date, personal or otherwise, stored thereon shall be considered a material breach of this Master Contract and grounds for immediate termination of this Master Contract by Wal-Mart.

 

7.                                       Restriction on Advertising.    Unless otherwise required by law or by order of the court, Contractor shall not under any circumstances (i) identify Wal-Mart or any of its affiliates or divisions as the source of the Merchandise; (ii) advertise or market the Merchandise using any name relating to Wal-Mart or any of its divisions or affiliates, including but not limited to Sam’s Club, or any of its or their private labels, in any manner; (iii) make reference to Wal-Mart or any of its affiliates or divisions in any signing or advertising; (iv) make reference to a membership warehouse as the source of the Merchandise; or (v) advertise or market the Merchandise using any name related to Wal-Mart’s suppliers.

 

8.                                       Term: Termination.      The term of this Master Contract shall commence on the Effective Data stated above and shall continue for a period of five (5) years from the Effective Date (the “Term), subject to termination pursuant to subsection 8(a) or (b) below. Absent any affirmative action by the parties, at the end of the Term, this Master Contract shall continue on a month to month basis until terminated by either Party in accordance with this Master Contract.

 

(a)                                  For Cause.  Either Party may terminate one or more Scopes of Salvaged Merchandise or the Master Contract immediately upon default by the other Party (the “Defaulting Party”). Events of default by the Defaulting Party shall include, but not be limited to:

 

(1)                                  Failure by the Defaulting Party to pay any undisputed amount within five (5) days of written notice of the late payment by the Non-Defaulting Party;

 

(2)                                  The filing by the Defaulting Party or its parent company of any petition or answer seeking, consenting to, or acquiescing in reorganization, arrangement, adjustment, composition, liquidation, dissolution or similar relief or proceedings under any bankruptcy act, insolvency law or any law for the relief of debtors, or the filing by a third party of any involuntary proceedings under any bankruptcy act, insolvency law which is not dismissed within 30 days (collectively “Insolvency Default”);

 

(3)                                  The Defaulting Party or its parent company makes an assignment for the benefit of its creditors;

 

(4)                                  The Defaulting Party or its parent company institutes proceedings for the appointment or application of a receiver for a majority of its assets or substantial part of its business;

 

(5)                                  A material breach or failure by the Defaulting Party of its respective obligations, covenants, duties, representations or warranties under any Scope of Salvaged Merchandise or this Master Contract, which either (i) is not cured in a timely manner pursuant to subsection 8(b) below, (ii) cannot be cured, or (iii) is not subject to being cured hereunder, including clauses (1), (2), (3) or (4) above or pursuant to section 3 regarding the failure by Contractor to pick up trailers or pursuant to section 6 (c) regarding the failure by Contractor to handle electronic Merchandise as specified. Upon any material breach or failure by Contractor under any Scope of Salvaged Merchandise or this Master Contract, Wal-Mart may (i) immediately terminate one or more of the Scopes of Salvaged Merchandise and/or this Master Contract, in whole or in part (including, without limitation, one or more Scopes of Salvaged Merchandise), upon written notice to Contractor and/or (ii) pursue any legal remedies it may have under applicable law or principles of equity relating to such breach or failure by Contractor.

 

(b)                                 Notice and Opportunity to Cure.   Upon written notice of default under clause (5) of subsection 8(a) above (but excluding sub-clauses (ii) and (iii) of such clause (5)), the Defaulting Party shall have thirty (30) days after receipt of such notice to cure such default; provided, however, that where such default cannot reasonably be cured within such thirty (30) day period, if the Defaulting Party has been proceeding promptly to cure such default and prosecute such cure with due diligence, the time for curing such default shall be extended for a reasonable period of time as may be necessary to complete such cure. Any default pursuant to clauses (1), (2), (3) or (4) shall not be subject to cure. The Non-Defaulting Party at its option may waive any event of default in writing. Upon the failure by the Defaulting Party to timely cure any such default after notice thereof, the Non-Defaulting Party may

 

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(i) take such action as it determines, in its sole discretion, to be necessary to correct the default, (ii) terminate one or more Scopes of Salvaged Merchandise or this Master Contract, as amended herein, and/or (iii) pursue any legal remedies it may have under applicable law or principles of equity relating to such breach.

 

(e)                                  Effect of Termination. A termination of this Master Contract in its entirety shall, automatically and without further notice, be deemed a termination of all outstanding Scopes of Salvaged Merchandise hereunder, Subject to section 12, termination of one or more Scopes of Salvaged Merchandise or this Master Contract is without prejudice to any other rights or remedies of the Parties and is without liability for any loss or damage occasioned by the termination. Termination of one or more Scopes of Salvaged Merchandise or this Master Contract does not release either party from any liability which, at the time of termination, has already accrued to the other Party, or which may accrue as a result of any act or omission prior to termination or from any obligation which is expressly stated to survive the termination.

 

9.                                       No Exclusives; No Guaranty of Volumes: No Reliance on Oral Representations or Promises. Except as otherwise agreed to by the Parties on a particular Exhibit A, Scope of Salvaged Merchandise, Contractor acknowledges and agrees that the offer of Merchandise by Wal-Mart is on a non-exclusive basis. Contractor further acknowledges and agrees that Wal-Mart is not guaranteeing a minimum quantity or a continuous flow of Merchandise to Contractor. Except as may be agreed to by the Parties on a particular Exhibit A, Scope of Salvaged Merchandise, this Master Contract does not create any exclusive right in favor of Contractor, or any obligation on the part of Wal-Mart to make available to Contractor any particular Merchandise or volume of Merchandise, or any obligation on the part of Contractor to purchase any particular Merchandise or volume of Merchandise.  Any expenditures, Investments, or commitments made by Contractor in reliance on any present or future business from Wal-Mart pursuant to this Master Contract, any Scope of Salvaged Merchandise or otherwise are done at Contractor’s own risk and without any obligation whatsoever from Wal-Mart.

 

10.                                 Insurance.   Contractor shall keep in force and effect at all times during this Master Contract, with a company or companies acceptable to Wal-Mart, the following minimum insurance coverages:

 

(a)                                  Workers’ Compensation and Employers’ Liability coverage as required by law;

 

(b)                                 Commercial General Liability coverage including Contractual Liability on an occurrence basis with minimum limits of $1,000,000 per occurrence and $2,000,000 aggregate; and

 

(c)                                  Business Automobile Liability coverage for all vehicles (including owned, non-owned, and hired vehicles) on an occurrence basis with combined single limit per occurrence of not less than $2,000,000.

 

Each policy listed in subsections b, and c. above shall name Wal-Mart Stores, Inc., its subsidiaries and its affiliates as additional insureds and contain a waiver of subrogation. Contractor shall provide at least thirty (30) days’ written notice prior to any cancellation of any policy of insurance maintained hereunder. Contractor’s insurance shall be primary, non-contributory, and not excess coverage. Contractor shall provide Wal-Mart with evidence satisfactory to Wal-Mart of the existence of insurance in compliance with the provisions of this Master Contract. Contractor shall also provide Wal-Mart with one or more certificates of insurance evidencing the coverages required by this Agreement upon the renewal of replacement of a required insurance policy in effect during the term of this Agreement and at any other time as Wal-Mart may request. The failure to comply with this Section 10 shall be considered a material breach.

 

11.                                 Indemnity.   Contractor shall at all times indemnity, defend and hold harmless Wal-Mart and any subsidiaries and affiliates, and its and their respective successors, assigns, transferees, officers, directors, agents and employees (“Indemnified Parties”) against and from any and all lawsuits, claims, actions, expenses (including reasonable attorney’s fees and costs), damages (including punitive, consequential and exemplary damages), losses, obligations, fines, penalties, corrective action costs, liabilities, and liens (including, without limitation, claims for personal injury (even if solely emotional in nature), death and damage to property) (“Claims”) arising out of or related to any Merchandise, this Master Contract or the acts or omissions of Contractor, its employees, agents, subcontractors or representatives, including without limitation (1) any acts, omissions, negligence or willful

 

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misconduct of Contractor, its employees, agents, representatives, suppliers or subcontractors in connection with the sale of the Merchandise, (2) any breach, violation or default by Contractor of this Master Contract or any Scope of Salvaged Merchandise, or (3) any lien, security interest, claim or encumbrance in favor of any person or entity by reason of having provided labor, materials or equipment relating to Contractor’s obligations under this Master Contract, except to the extent that such Claims arise solely out of the negligence or willful misconduct of the Indemnified Parties. The provisions of this Paragraph shall survive cancellation, termination, or expiration of this Agreement and until all matters are fully and finally barred by applicable law.

 

The Indemnified Parties shall notify Contractor of the assertion, filing or service of any Claim that is or may be covered by this indemnity; and Contractor shall Immediately take such action as may be necessary or appropriate to protect the interests of the Indemnified Parties. If Contractor unreasonably delays in its acceptance of the tender of defense and indemnity, Wal-Mart may engage counsel to defend its interest and Contractor agrees to pay for such fees and costs incurred. If the Indemnified Parties, in their reasonable discretion, shall determine that counsel selected by Contractor has not or cannot adequately represent the Indemnified Parties’ interests or appears unwilling or unable to do so, the Indemnified Parties may replace such counsel with other counsel of the Indemnified Parties’ own choosing. In such event, any and all fees and expenses of the Indemnified Parties’ new counsel, together with any and all expenses or costs incurred on account of the change of counsel, shall be paid or reimbursed by Contractor as part of its indemnity obligation hereunder. The Indemnified Parties shall at all times have the right to direct the defense of, and to accept or reject any offer to compromise or settle, any Claim asserted against the Indemnified Parties. Contractor’s indemnification obligations set forth in this Agreement (i) are independent of, and will not be limited by, each other or any insurance obligations in this Agreement (whether or not compiled with) or damages or benefits payable under workers’ compensation or other statutes, and (ii) are not diminished or limited in any way by any insurance carried in whole or in part by Wal-Mart, which shall in all cases function in excess of these indemnification obligations.

 

Further, Contractor agrees to execute a release related to the Merchandise attached hereto as Exhibit B.

 

The failure to comply with this Section 11 shall be considered a material breach.

 

12.                                 Limitation on Damages.  In no event shall Wal-Mart be liable for any incidental or consequential damages, including without limitation loss of profits or business or other consequential or indirect damages, even if Wal-Mart has been advised by Contractor of the possibility of such damages.

 

13.                                 Inspections and Audits.  Wal-Mart shall have the right, but not the obligation, to conduct inspections of Contractor’s business records and premises without notice. Contractor agrees to permit Wal-Mart and its employees or agents to conduct such scheduled or unannounced inspections of Contractor’s operations, provided however that Wal-Mart shall not be obligated to perform such inspections.

 

Contractor shall maintain records of Merchandise detailing Merchandise received, shipped, sold, damaged, inventory on hand, and any other information Wal-Mart deems appropriate relating to Contractor’s activities under this Master Contract, including but not limited to just and true books, records and accounts on its facility, showing the actual costs and expenses incurred by Contractor in connection with its services and the work to be performed hereunder. Wal-Mart shall have the right, but not the obligation, from time to time to review all such books, records and accounts of Contractor relating to purchases of Merchandise by Contractor pursuant to this Master Contract. Upon request, Contractor shall make any and all such records available to Wal-Mart and its auditors, attorneys or other representatives and shall otherwise cooperate fully with Wal-Mart and its representatives in connection with any such audits. Wal-Mart’s audit rights shall extend two years after termination of this Master Contract. The failure to reasonably comply with notice of a request to examine or audit books shall be considered a material breach. For purposes of this clause “reasonable” shall mean providing access to such books, records and accounts within twenty-four (24) hours of receipt of notice from Wal-Mart.

 

14.                                 Compliance with Laws.  Contractor shall comply with all federal, state, and local laws applicable to providing the Services and its obligations hereunder, including but not limited to, all applicable immigration laws, child labor laws, and any other applicable labor or employment law. Contractor shall obtain all necessary

 

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permits and licenses required by law to handle and sell the Merchandise and will keep same in effect throughout the pendency of this Agreement. In the event that Contractor is unable to sell the Merchandise, Contractor shall dispose of the Merchandise in compliance with all applicable federal, state and local laws and regulations, including but not limited to applicable environmental laws and regulations. The failure to comply with this Section 15 shall be considered a material breach.

 

15.           Independent Contractors. The relationship between the Parties is that of independent contractor business entities dealing with each other at arms’ length. It is understood and agreed to by the Parties hereto that nothing in this Master Contract shall be interpreted as forming a joint venture, partnership or association between the Parties. Neither Party has, and neither party shall seek to exercise, any control or any right of control over the employees of the other Party. Each Party shall be solely responsible for the hiring, firing, promotion, demotion, rates of pay, benefits and other terms and conditions of employment of its employees, and the other Party shall have no rights or obligations whatever in that regard.

 

16.           Reporting.             At the conclusion of each calendar quarter of the Master Contract, Contractor will provide to Wal-Mart a report specifying by each month of that quarter the total volume by per cent (%) of tonnage that has been processed to any waste stream. In the same manner, Contractor will also delineate the per cent (%) of tonnage by type of waste stream, i.e. solid, hazardous waste to energy or incineration, etc.

 

17.           Miscellaneous Terms and Conditions.

 

a.             Notices. All notices and other communications required or permitted under this Master Contract shall be in writing delivered by hand, prepaid commercial courier or certified mall, return receipt requested, postage prepaid, to the address of the other Party as printed above.

 

b.             Modification. No conditions, usage of trade, course of dealing or performance, understanding or agreement purporting to modify, vary the terms or conditions of this Master Contract shall be binding unless hereafter made in writing and signed by an authorized representative of each Party. This Master Contract may be amended or modified only by a writing signed by both Parties.

 

c.             No Assignment. Contractor may not factor, pledge or otherwise assign any of its rights or its payment obligations under this Master Contract without the express written consent of Wal-Mart prior to any such assignment. Any actual or attempted assignment, factoring, hypothecation or pledge by Contractor of this Master Contract shall be deemed a material breach. Any change in the direct or indirect ownership or control of more than fifty percent (50%) of the outstanding stock or ownership interests of Contractor during any twelve (12) consecutive calendar month period shall be deemed an assignment for purposes of this Agreement. Wal-Mart may assign this Master Contract to any subsidiary or affiliate entity. This Master Contract shall be binding upon and inure to the benefit of and be enforceable by the respective successors and permitted assigns of the Parties hereto.

 

d.             Severability. If any provision of this Master Contract is determined to be invalid or unenforceable by any court of competent jurisdiction or any governmental authority, such provision will be treated as severable and shall neither invalidate nor render unenforceable any other provision of this Master Contract, whether similar or not. Upon such determination the invalid or unenforceable provision shall be modified or amended, if possible, in a manner to affect the intent of the Parties and accomplish the purpose of this Master Contract.

 

e.             Non-Waiver. No delay or failure to exercise any right under this Master Contract shall impair any such right or be construed to be a waiver thereof. No waiver shall be effective unless in writing signed by the Party waiving. A waiver of a right on one occasion shall not be deemed to be a waiver of such right on any other occasion.

 

f.              Force Majeure. Contractor and Wal-Mart shall be excused for the period of any delay in the performance of any obligations when prevented from so doing by causes beyond their control, including

 

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civil commotion, governmental regulations or controls (but excluding failures to comply with applicable law and labor disputes), fire or other casualty, inability to obtain any material or services or acts of God. If either Party relies on this clause as a reason for delay, they must notify the other Party in writing and provide an action plan intended to mitigate any occasioned delay.

 

g.             Governing Law; Jurisdiction; Venue,  This Master Contract shall be governed by and construed in accordance with the laws of the State of Arkansas, without regard to the internal law of Arkansas regarding conflicts of laws. The Parties mutually consent and submit to the jurisdiction of the federal and state courts of Arkansas, and agree that any action, salt or proceeding concerning this Master Contract shall be brought only in the federal or state courts of Arkansas. The Parties mutually acknowledge and agree that they will not raise, in connection with any such suit, action or proceeding brought in any federal or state court of Arkansas, any defense or objection based upon lack of personal jurisdiction, improper venue, inconvenience of forum. The Parties acknowledge that they have read and understand this clause and agree willingly to its terms.

 

h.             Counterparts. This Master Contract may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Any counterpart may be executed by facsimile signature and such facsimile signature shall be deemed an original.

 

i.              Publicity. Contractor shall not use the name, logo, trademarks or trade names of  Wal-Mart in publicity releases, promotional material, customer lists, advertising, marketing or business-generating efforts, whether written or oral, without obtaining Wal-Mart’s prior written consent, which consent shall be given at Wal-Mark’s sole discretion.

 

j.              Confidentiality. The Parties recognize that, in the course of their dealings, each may come into possession of information relating to the business of the other which is not generally known in the industry, which reasonably or logically may be considered to be confidential or proprietary and which might reasonably be expected to do harm to the other if divulged (“Confidential Information”). The Parties agree that this Confidential Information will be used only for purposes of this Master Contract and that no such Confidential Information, Including without limitation the provisions of the Master Contract, will be disclosed by the Receiving Party, its agents or employees without the prior written consent of the other Disclosing Party, except as may be necessary by reason of legal, accounting or regulatory requirements beyond the reasonable control of the Resolving Party, Confidential Information of a Disclosing Party shall no longer be subject to the foregoing restrictions if it is or becomes available to the public through no fault of the Receiving Party or the Receiving Party’s directors, officers, employees, agents, attorneys, accountants or representatives, or if it is otherwise known to the Receiving Party as shown by written records of the Receiving Party at the time or disclosure of the Confidential Information through the relationship between the Parties. In the event the Receiving Party is required by law, regulation, stock exchange requirement or legal process to disclose any of the Confidential Information, the Receiving Party agrees to (i) give Disclosing Party, to the extent possible, advance notice prior to disclosure so the Disclosing Party may contest the disclosure or seek a protective order, and (ii) limit the disclosure to minimum amount that is legally required to be disclosed. The provision of this Section 17 (i) will survive termination, for any reason, of this Master Contract. The failure to comply with this Section 17 (j) shall be considered a material breach.

 

k.             Total Aggregate Business. Wal-Mart may request at any time a statement from Contractor which specifies the percentage of its total revenues for any relevant time period from services provided to Wal-Mart or any of its subsidiaries.

 

l.              Survival of Provisions. The expiration or termination of this Master Contract or any Scope of Salvaged Merchandise shall not affect the provisions, and the rights and obligations set forth therein, which  either (i) by their terms state or evidence the intent of the Parties that the provisions survive the expiration or termination, or (ii) must survive to give effect to the provisions.

 

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m.            Attorney’s Fees.  In the event of any action or proceeding brought by either Party against the other under this Agreement or any Scope of Work, the prevailing Party will be entitled to recover reasonable costs and expenses, including court costs and reasonable attorneys’ fees.

 

n.             Subcontractors. Contractor shall not subcontract or delegate to any person the right or obligation to perform any Services, without the prior written consent of Wal-Mart.

 

o.             Cross Default. If Contractor is in material breach of this Agreement or any Scope of Salvaged Merchandise, Contractor shall be deemed to be in material breach of any other contract that Contractor may have with Wal-Mart or any of its affiliates. If Contractor is in material breach of any other contract that it has with Wal-Mart or any of its affiliates, Contractor shall be deemed to be in material breach of this Agreement and all of the Scopes of Work then outstanding. In each case, Wal-Mart may pursue against Contractor any and all remedies that Wal-Mart has at law or in equity.

 

p.             Captions and Headings. The captions and headings used in this Agreement are used for convenience only and are not to be given and legal effect.

 

q.             Interpretation. The Parties acknowledge that they have participated jointly in the negotiation and drafting of this Agreement. In the event and ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. Unless the context requires otherwise, all words used in this Agreement in the singular number shall extend to and include the plural, all words in the plural number shall extend to and include the singular and all words in any gender shall extend to and include all genders.

 

r.              Further Assurances. Each Party agrees that it shall, from and after the date of this Agreement, execute and deliver such other documents and take such other actions as may  reasonably be requested to affect the transactions contemplated hereunder.

 

s.             Injunctive Relief. Unless otherwise specified in this Agreement, all rights, remedies and powers of a Party are irrevocable and cumulative, and not alternative or exclusive, and shall be in addition to all other rights, remedies and powers given hereby or any laws now existing or hereafter enacted. Each Party acknowledges and agrees that if it breaches any obligations hereunder, the other Party may suffer immediate and irreparable harm for which monetary damages alone shall not be a sufficient remedy, and that in addition to all other remedies that the nonbreaching Party may have, the nonbreaching Party shall be entitled to seek injunctive relief, specific performance or any other form of relief in a court of competent jurisdiction, including, but not limited to, equitable relief, to remedy a breach or threatened breach hereof by the breaching Party and to enforce this Agreement, and the breaching Party hereby waives any and all defenses and objections it may have on grounds of  jurisdiction and venue, including, but not limited to, lack of personal jurisdiction and improper venue, and waives and requirement for the securing or posting of any bond in connection with such remedy.

 

t.              Authority No Third Party Beneficiaries. By signing this Master Contract, each signatory represents they have the actual authority to bind themselves. Except for the Indemnified Parties, no Third Party Beneficiaries are created by this Master Contract or any Scope of Salvaged Merchandise.

 

u.             Entire Agreement. This Master Contract constitutes the entire agreement between the Parties with respect to the subject matter of this Master Contract, and all prior and contemporaneous negotiations, agreements, course of dealings and understandings are hereby superseded, merged and integrated into this Master Contract. No oral statements, representations or prior written matter relating to the subject matter of this Master Contract shall give rise to any duties or covenants on the part of a Party, express or implied, other than the duties and covenants expressly set forth herein. Any representation of a Party’s employees

 

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or agents or any third party which is not incorporated in this Master Contract shall not be binding upon such Party and should be considered as unauthorized.

 

IN WITNESS WHEREOF, the Parties have executed this Master Contract on the date and year set forth below.

 

 

Wal-Mart Stores, Inc.

 

Contractor Jacobs Trading, LLC

 

 

 

By:

/s/ Tom Mars

 

By:

/s/ Howard Grodnick

Printed Name:

Tom Mars

 

Printed Name:

Howard Grodnick

Title:

EVP & CAO

 

Title:

President

Date:

5/27/11

 

Date:

MAY 13, 2011

 

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Exhibit A

To

Master Merchandise Salvage Contract

 

Scope of Salvaged Merchandise - Exclusive

 

Merchandise Description/Prices

 

This Scope of Salvaged Merchandise (the “Scope”) is made this 13th day of May, 2011, (“Scope Effective Date”) by and between Wal-Mart Stores, Inc. (“Wal-Mart”), a Delaware corporation, with its principal place of business at 702 SW 8th St., Bentonville, AR 72716, and Jacobs Trading, LLC, with offices at 8090 Excelsior Blvd., Hopkins, MN 55343 (“Contractor”).

 

Wal-Mart and Contractor agree and contract as follows:

 

I.              This Scope of Salvaged Merchandise is subject to the terms of that certain Master Merchandise Salvage Contract dated May 13, 2011, between Wal-Mart and Contractor, which is incorporated by reference into and made a part of this Scope (the “Contract”).

 

II.            Term. Unless otherwise agreed to by the Parties, this Scope shall have a term of five (5) years and shall expire five (5) years from the Scope Effective Date.

 

III.           Exclusivity. Subject to the terms of the Contract and for the term of this Scope, Contractor shall have the exclusive right to purchase at the prices listed the Merchandise described below in Section IV.

 

IV.           Wal-Mart agrees to sell and Contractor agrees to purchase as follows:

 

MERCHANDISE DESCRIPTION

 

PRICES

[***]

 

$[***]

 

 

[***] – [***] $[***]

 

 

[***] – [***] $[***]

 

 

[***] – [***] $[***]

 

 

[***] – [***] $[***]

 

 

[***] – [***] $[***]

 

IN WITNESS WHEREOF, the Parties have executed this Scope on the date and year set forth below.

 

Contractor: Jacobs Trading, LLC

 

Wal-Mart Stores, Inc.

By:

/s/ Howard Grodnick

 

By:

/s/ Tom Mars

Printed Name:

Howard Grodnick

 

Printed Name:

Tom Mars

Title:

President

 

Title:

EVP & CAO

Date:

May 13, 2011

 

Date:

5/27/11

Wal-Mart Supplier No.:

[***]

 

 

 

10



 

Exhibit A

To

Master Merchandise Salvage Contract

 

Scope of Salvaged Merchandise–Exclusive

 

Merchandise Description/Prices

 

This Scope of Salvaged Merchandise (the “Scope”) is made this 13th day of May, 2011, (“Scope Effective Date”) by and between Wal-Mart Stores, Inc. (“Wal-Mart”), a Delaware corporation, with its principal place of business at 702 SW 8th St., Bentonville, AR 72716, and Jacobs Trading, LLC, with offices at 8090 Excelsior Blvd., Hopkins, MN 55343 (“Contractor”).

 

Wal-Mart and Contractor agree and contract as follows:

 

I.              This Scope of Salvaged Merchandise is subject to the terms of that certain Master Merchandise Salvage Contract dated May 13, 2011, between Wal-Mart and Contractor, which is incorporated by reference into and made a part of this Scope (the “Contract”).

 

II.            Term. Unless otherwise agreed to by the Parties, this Scope shall have a term of five (5) years and shall expire five (5) years from the Scope Effective Date.

 

III.           Exclusivity. Subject to the terms of the Contract and for the term of this Scope, Contractor shall have the exclusive right to purchase at the prices listed the Merchandise described below in Section IV.

 

IV.           Wal-Mart agrees to sell and Contractor agrees to purchase as follows:

 

MERCHANDISE DESCRIPTION

 

PRICES

[***]

 

$[***]

 

 

[***] – [***] $[***]

 

 

[***] – [***] $[***]

 

 

[***] – [***] $[***]

 

 

[***] – [***] $[***]

 

 

[***] – [***] $[***]

 

IN WITNESS WHEREOF, the Parties have executed this Scope on the data and year set forth below.

 

Contractor: Jacobs Trading, LLC

 

Wal-Mart Stores, Inc.

By:

/s/ Howard Grodnick

 

By:

/s/ Tom Mars

Printed Name:

Howard Grodnick

 

Printed Name:

Tom Mars

Title:

President

 

Title:

EVP & CAO

Date:

May 13, 2011

 

Date:

5/27/11

Wal-Mart Supplier No.:

[***]

 

 

 

11



 

Exhibit A

To

Master Merchandise Salvage Contract

 

Scope of Salvaged Merchandise - Exclusive

 

Merchandise Description/Prices

 

This scope of Salvaged Merchandise (the “Scope”) is made this 13th day of May, 2011, (“Scope effective Date”) by and between Wal-Mart Stores, Inc. (“Wal-Mart”), a Delaware corporation, with its principal place of business at 702 SW 8th  St., Bentonville, AR 72716, and Jacobs trading, LLC, with offices at 8090 Excelsior Blvd., Hopkins, MN 55343 (“Contractor”).

 

Wal-Mart and Contractor agree and contract as follows:

 

I.              This Scope of Salvaged Merchandise is subject to the terms of that certain Master Merchandise Salvage Contract dated May 13, 2011, between Wal-Mart and Contractor, which is incorporated by reference into and made a part of this Scope (the “Contract”).

 

II.            Term. Unless otherwise agreed to by the Parties, this Scope shall have a term of five (5) years and shall expire five (5) years from the Scope Effective Date.

 

III.           Exclusivity. Subject to the terms of the Contract and for the term of this Scope, Contractor shall have the exclusive right to purchase at the prices listed the Merchandise described below in Section IV.

 

IV.           Wal-Mart agrees to sell and Contractor agrees to purchase as follows:

 

MERCHANDISE DESCRIPTION

 

PRICES

[***]

 

$[***]

 

 

[***] – [***] $[***]

 

 

[***] – [***] $[***]

 

 

[***] – [***] $[***]

 

 

[***] – [***] $[***]

 

 

[***] – [***] $[***]

 

IN WITNESS WHEREOF, the Parties have executed this Scope on the date and year set forth below.

 

Contractor: Jacobs Trading, LLC

 

Wal-Mart Stores, Inc.

By:

/s/ Howard Grodnick

 

By:

/s/ Tom Mars

Printed Name:

Howard Grodnick

 

Printed Name:

Tom Mars

Title:

President

 

Title:

EVP & CAO

Date:

May 13, 2011

 

Date:

5/27/11

Wal-Mart Supplier No.:

[***]

 

 

 

12



 

Exhibit A

To

Master Merchandise Salvage Contract

 

Scope of Salvaged Merchandise - Exclusive

 

Merchandise Description/Prices

 

This Scope of Salvaged Merchandise (the “Scope”) is made this 13th day of May, 2011, (“Scope Effective Date”) by and between Wal-Mart Stores, Inc. (“Wal-Mart”), a Delaware corporation, with its principal place of business at 702 SW 8th St., Bentonville, AR 72716, and Jacobs Trading, LLC, with offices at 8090 Excelsior Blvd., Hopkins, MN 55343 (“Contractor”).

 

Wal-Mart and Contractor agree and contract as follows:

 

I.              This Scope of Salvaged merchandise is subject to the terms of that certain Master Merchandise Salvage Contract dated May 13, 2011, between Wal-Mart Contractor, which is incorporated by reference into and made a part of this Scope (the “Contract”).

 

II.            Term. Unless otherwise agreed to by the Parties, this Scope shall have a term of five (5) years and shall expire five (5) years from the Scope Effective Date.

 

III.           Exclusivity. Subject to the terms of the Contract and for the term of this Scope, Contractor shall have the exclusive right to purchase at the prices listed the Merchandise described below in Section IV.

 

IV.           Wal-Mart agrees to sell and Contractor agrees to purchase as follows:

 

MERCHANDISE DESCRIPTION

 

PRICES

[***]

 

$[***]

 

 

[***] – [***] $[***]

 

 

[***] – [***] $[***]

 

 

[***] – [***] $[***]

 

 

[***] – [***] $[***]

 

 

[***] – [***] $[***]

 

IN WITNESS WHEREOF, the Parties have executed this Scope on the date and year set forth below.

 

Contractor: Jacobs Trading, LLC

 

Wal-Mart Stores, Inc.

By:

/s/ Howard Grodnick

 

By:

/s/ Tom Mars

Printed Name:

Howard Grodnick

 

Printed Name:

Tom Mars

Title:

President

 

Title:

EVP & CAO

Date:

May 13, 2011

 

Date:

5/27/11

Wal-Mart Supplier No.:

[***]

 

 

 

13



 

Exhibit A

To

Master Merchandise Salvage Contract

 

Scope of Salvaged Merchandise - Exclusive

 

Merchandise Description/Prices

 

This Scope of Salvaged Merchandise (the “Scope”) is made this 13th day of May, 2011, (“Scope Effective Date”) by and between Wal-Mart Stores, Inc. (“Wal-Mart”), a Delaware corporation, with its principal place of business at 702 SW 8th St., Bentonville, AR 72716, and Jacobs Trading, LLC, with offices at 8090 Excelsior Blvd, Hopkins, MN 55343 (“Contractor”).

 

Wal-Mart and Contractor agree and contract as follows:

 

I.              This Scope of Salvaged Merchandise is subject to the terms of that certain Master Merchandise Salvage Contract dated May 13, 2011, between Wal-Mart and Contractor, which is incorporated by reference into and made a part of this Scope (the “Contract”).

 

II.            Term. Unless otherwise agreed to by the Parties, this Scope shall have a term of five (5) years and shall expire five (5) years from the Scope Effective Date.

 

III.           Exclusivity. Subject to the terms of the Contract and for the term of this Scope, Contractor shall have the exclusive right to purchase at the prices listed the Merchandise described below in Section IV.

 

IV.           Wal-Mart agrees to sell and Contractor agrees to purchase as follows:

 

MERCHANDISE DESCRIPTION

 

PRICES

[***]

 

[***]

 

 

[***] – [***]

 

 

[***] – [***]

 

 

[***] – [***]

 

 

[***] – [***]

 

 

[***] – [***]

 

IN WITNESS WHEREOF, the Parties have executed this Scope on the date and year set forth below.

 

Contractor: Jacobs Trading, LLC

 

Wal-Mart Stores, Inc.

By:

/s/ Howard Grodnick

 

By:

/s/ Tom Mars

Printed Name:

Howard Grodnick

 

Printed Name:

Tom Mars

Title:

President

 

Title:

EVP & CAO

Date:

May 13, 2011

 

Date:

5/27/11

Wal-Mart Supplier No.:

[***]

 

 

 

14



 

Exhibit A

 

To

Master Merchandise Salvage Contract

 

Scope of Salvaged Merchandise - Exclusive

 

Merchandise Description/Prices

 

This Scope of Salvaged Merchandise (the “Scope”) is made this 13th day of May, 2011, (“Scope Effective Date”) by and between Wal-Mart Stores, Inc, (“Wal-Mart”), a Delaware corporation, with its principal place of business at 702 SW 8th St., Bentonville, AR 72716, and Jacobs Trading, LLC, with offices at 8090 Excelsior Blvd, Hopkins, MN 55343 (“Contractor”).

 

Wal-Mart and Contractor agree and contract as follows:

 

I.              This Scope of Salvaged Merchandise is subject to the terms of that certain Master Merchandise Salvage Contract dated May 13, 2011, between Wal-Mart and Contractor, which is incorporated by reference into and made a part of this Scope (the “Contract”).

 

II.            Term. Unless otherwise agreed to by the Parties, this Scope shall have a term of five (5) years and shall expire five (5) years from the Scope Effective Date.

 

III.           Exclusivity. Subject to the terms of the Contract and for the term of this Scope, Contractor shall have the exclusive right to purchase at the price listed the Merchandise described below in Section IV.

 

IV.           Wal-Mart agrees to sell and Contractor agrees to purchase as follows:

 

MERCHANDISE DESCRIPTION

 

PRICES ([***])

[***]

 

[***] / [***]

 

 

[***] – [***] / [***]

 

 

[***] – [***] / [***]

 

 

[***] – [***] / [***]

 

 

[***] – [***] / [***]

 

 

[***] – [***] / [***]

 

IN WITNESS WHEREOF, the Parties have executed this Scope on the date and year set forth below.

 

Contractor: Jacobs Trading, LLC

 

Wal-Mart Stores, Inc.

By:

/s/ Howard Grodnick

 

By:

/s/ Tom Mars

Printed Name:

Howard Grodnick

 

Printed Name:

Tom Mars

Title:

President

 

Title:

EVP & CAO

Date:

May 13, 2011

 

Date:

5/27/11

Wal-Mart Supplier No.:

[***]

 

 

 

15


 

Exhibit A

To

Master Merchandise Salvage Contract

 

Scope of Salvaged Merchandise - Exclusive

 

Merchandise Description/Prices

 

Tallied Products

 

This Scope of Salvaged Merchandise (the “Scope”) is made this 13th day of May, 2011, (“Scope Effective Date”) by and between Wal-Mart Stores, Inc. (“Wal-Mart”), a Delaware corporation, with its principal place of business at 702 SW 8th St., Bentonville, AR 72716, and Jacobs Trading, LLC, with offices at 8090 Excelsior Blvd, Hopkins, MN 55343 (“Contractor”).

 

Wal-Mart and Contractor agree and contract as follows:

 

I.              This Scope of Salvaged Merchandise is subject to the terms of that certain Master Merchandise Salvage Contract dated May 13, 2011, between Wal-Mart and Contractor, which is incorporated by reference into and made a part of this Scope (the “Contract”).

 

II.            Term. Unless otherwise agreed to by the Parties, this Scope shall have a term of five (5) years and shall expire five (5) years from the Scope Effective Date.

 

III.           Exclusivity. Subject to the terms of the Contract and for the term of this Scope, Contractor shall have the exclusive right to purchase at the prices listed the Merchandise described below in Section IV.

 

IV.           Wal-Mart agrees to sell and Contractor agrees to purchase as follows:

 

MERCHANDISE DESCRIPTION

 

PRICES - See Attached Schedule 1

[***]

 

 

 

 

[***] – [***]

 

 

[***] – [***]

 

 

[***] – [***]

 

 

[***] – [***]

 

 

[***] – [***]

 

IN WITNESS WHEREOF, the Parties have executed this Scope on the date and year set forth below.

 

Contractor: Jacobs Trading, LLC

 

Wal-Mart Stores, Inc.

By:

/s/ Howard Grodnick

 

By:

/s/ Tom Mars

Printed Name:

Howard Grodnick

 

Printed Name:

Tom Mars

Title:

President

 

Title:

EVP & CAO

Date:

May 13, 2011

 

Date:

5/27/11

Wal-Mart Supplier No.:

[***]

 

 

 

16



 

Schedule 1 to Exhibit A

To

Master Merchandise Salvage Contract

 

Scope of Salvaged Merchandise - Exclusive

 

Tallied Liquidation

 

Description

 

Cost

[***]

 

 

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

 

 

 

[***]

 

 

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

 

 

 

[***]

 

 

[***]

 

$[***]

[***]

 

$[***]

 

 

 

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

 

 

 

 

 

 

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

 

 

 

[***]

 

 

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

 

 

 

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

 

[***]

 

Description

 

Cost

[***]

 

 

[***]

 

$[***]

 

17



 

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

 

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

[***]

 

$[***]

 

18



 

Exhibit B

Release

 

FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of which are hereby acknowledged, Jacobs Trading, LLC (“Releasor”) does hereby forever release, relinquish, and discharge Wal-Mart Stores, Inc., its subsidiaries, and affiliates (collectively, “Wal-Mart”), and its and their respective officers, directors, partners, stockholders, members, managers, employees, successors, and assigns from any and all claims, demands, damages, actions, proceedings, causes of action, and or suits relating to or arising out of any business dealing between Wal-Mart and Releasor related to the purchase of salvaged merchandise from Wal-Mart and/or the Master Merchandise Salvage Contract dated May 13, 2011, by and between Wal-Mart and Releasor, except that Releasor shall be entitled to pursue any and all available remedies at law or in equity arising out of Wal-Mart’s breach of its obligations to (1) provide good title to the Merchandise, (2) comply with Sections 8, Term; Termination and 17 j., Confidentiality, (3) and provide exclusively as to the availability of the Merchandise as agreed to in one or more Scopes of Salvaged Merchandise.

 

This release shall be binding upon and inure to the benefit of the Parties, their successors and assigns.

 

Signed this 13th day of May, 2011.

 

 

Jacobs Trading, LLC (“Releasor”)

 

 

By:

/s/ Howard Grodnick

 

Printed Name:

Howard Grodnick

 

Title:

President

 

 

19



 

Exhibit C

To

Master Merchandise Salvage Contract

 

Load Summary Sheet

 

PO #

 

Edit Link

 

RC #

 

Liquidator Name

 

Ship Date

 

Shipment Type

 

Carrier Name

 

Trailer Number

 

# of Pallets

 

Case Count

 

Units

 

Weight (lbs)

 

Liquidation BOL #

 

Bill of Lading #

 

Retail Value

 

Liquidator Charge

 

 

Walmart Confidential

 

20




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EXHIBIT 21.1

SUBSIDIARIES OF LIQUIDITY SERVICES, INC.

Company
  Jurisdiction of Organization
Surplus Acquisition Venture, LLC   Delaware

Government Liquidation.com, LLC(1)

 

Delaware

Liquidity Services, LTD.

 

United Kingdom

DOD Surplus, LLC(2)

 

Delaware

GovDeals, Inc.

 

Delaware

Network International, Inc.

 

Delaware

SAV Services, LLC

 

Delaware

LSI Commercial Services, LLC

 

Delaware

Youk Acquisition Partners, LLC (TruckCenter.com, LLC)

 

Delaware

Asset Recovery Division, LLC(3)

 

Delaware

Profar Acquisition Partners, LLC (Jacobs Trading, LLC)(4)

 

Delaware

JTC Prison Industries, LLC(5)

 

Minnesota

2298567 Ontario Inc.(6)

 

Canada

(1)
Government Liquidations.com, LLC is a subsidiary of Surplus Acquisition Venture, LLC

(2)
DOD Surplus is a subsidiary of Surplus Acquisition Venture, LLC

(3)
Asset Recovery Division, LLC is a subsidiary of Surplus Acquisition Venture, LLC

(4)
Profar Acquisition Partners, LLC (Jacobs Trading, LLC) is a subsidiary of Surplus Acquisition Venture, LLC

(5)
JTC Prison Industries, LLC is a subsidiary of Profar Acquisition Partners, LLC (Jacobs Trading, LLC)

(6)
2298567 Ontario Inc. is a subsidiary of Asset Recovery Division, LLC



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EXHIBIT 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

        We consent to the incorporation by reference in the Registration Statement (Form S-8 No. 333-132192) and Form S-8 No. 333-159004) pertaining to the 2005 Stock Option and Incentive Plan and the 2006 Omnibus Long-Term Incentive Plan of Liquidity Services, Inc. of our reports dated December 9, 2011, with respect to the consolidated financial statements and schedule of Liquidity Services, Inc. and the effectiveness of internal control over financial reporting of Liquidity Services, Inc., included in this Annual Report (Form 10-K) for the year ended September 30, 2011.

McLean, Virginia
December 9, 2011




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EXHIBIT 31.1

CERTIFICATION PURSUANT TO RULE 13a-14(a)
OF THE SECURITIES EXCHANGE ACT OF 1934

I, William P. Angrick, III, certify that:

1.
I have reviewed this annual report on Form 10-K of Liquidity Services, 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 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 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: December 9, 2011

  /s/ WILLIAM P. ANGRICK, III

  By:   William P. Angrick, III

  Title:   Chairman of the Board of Directors and
Chief Executive Officer



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EXHIBIT 31.2

CERTIFICATION PURSUANT TO RULE 13a-14(a)
OF THE SECURITIES EXCHANGE ACT OF 1934

I, James M. Rallo, certify that:

1.
I have reviewed this annual report on Form 10-K of Liquidity Services, 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 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 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: December 9, 2011

  /s/ JAMES M. RALLO

  By:   James M. Rallo

  Title:   Chief Financial Officer and Treasurer



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EXHIBIT 32.1

CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

        In connection with the annual report of Liquidity Services, Inc. (the "Company") on Form 10-K for the period ended September 30, 2011 as filed with the Securities and Exchange Commission, I, William P. Angrick, III, Chief Executive Officer of the Company, certify, to the best of my knowledge, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:

December 9, 2011   /s/ WILLIAM P. ANGRICK, III

William P. Angrick, III
Chairman of the Board of Directors and
Chief Executive Officer

        THE FOREGOING CERTIFICATION IS BEING FURNISHED SOLELY PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 AND IS NOT BEING FILED AS PART OF THE FORM 10-K OR AS A SEPARATE DISCLOSURE DOCUMENT.

        A SIGNED ORIGINAL OF THIS WRITTEN STATEMENT REQUIRED BY SECTION 906, OR OTHER DOCUMENT AUTHENTICATING, ACKNOWLEDGING, OR OTHERWISE ADOPTING THE SIGNATURE THAT APPEARS IN TYPED FORM WITHIN THE ELECTRONIC VERSION OF THIS WRITTEN STATEMENT REQUIRED BY SECTION 906, HAS BEEN PROVIDED TO LIQUIDITY SERVICES, INC. AND WILL BE RETAINED BY LIQUIDITY SERVICES, INC. AND FURNISHED TO THE SECURITIES AND EXCHANGE COMMISSION OR ITS STAFF UPON REQUEST.




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EXHIBIT 32.2

CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

        In connection with the annual report of Liquidity Services, Inc. (the "Company") on Form 10-K for the fiscal year ended September 30, 2011 as filed with the Securities and Exchange Commission, I, James M. Rallo, Chief Financial Officer of the Company, certify, to the best of my knowledge, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:

December 9, 2011   /s/ JAMES M. RALLO

James M. Rallo
Chief Financial Officer and Treasurer

        THE FOREGOING CERTIFICATION IS BEING FURNISHED SOLELY PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 AND IS NOT BEING FILED AS PART OF THE FORM 10-K OR AS A SEPARATE DISCLOSURE DOCUMENT.

        A SIGNED ORIGINAL OF THIS WRITTEN STATEMENT REQUIRED BY SECTION 906, OR OTHER DOCUMENT AUTHENTICATING, ACKNOWLEDGING, OR OTHERWISE ADOPTING THE SIGNATURE THAT APPEARS IN TYPED FORM WITHIN THE ELECTRONIC VERSION OF THIS WRITTEN STATEMENT REQUIRED BY SECTION 906, HAS BEEN PROVIDED TO LIQUIDITY SERVICES, INC. AND WILL BE RETAINED BY LIQUIDITY SERVICES, INC. AND FURNISHED TO THE SECURITIES AND EXCHANGE COMMISSION OR ITS STAFF UPON REQUEST.




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