Exhibit 4.2


 


REGISTRATION
RIGHTS AGREEMENT


 


THIS REGISTRATION RIGHTS
AGREEMENT (this “Agreement”) is entered into as of September 3,
2004 by and between Liquidity Services, Inc., a Delaware corporation (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. (collectively, “Holder”).


 


WHEREAS, on the date hereof,
Holder has acquired an aggregate of 3,262,643 shares of Series C Preferred
Stock (the “Series C Preferred”) from the Company pursuant to a Stock
Purchase Agreement of even date herewith (the “Purchase Agreement”);


 


WHEREAS, the Company and the
Holder desire to enter into this Agreement in order to provide the Holder with
certain rights with respect to the registration of the Common Stock of the
Company issued or issuable upon conversion of the Series C Preferred; and


 


WHEREAS capitalized terms
used in this Agreement shall have the meanings ascribed to them in Article 2
hereof.


 


NOW, THEREFORE, for and in
consideration of the foregoing and of the mutual covenants and agreements
hereinafter set forth, the parties hereto agree as follows:


 


1.                                     REGISTRATION RIGHTS


 


1.1.                            Demand Registration Rights


 


1.1.1.        Request


 


At any time after six months
following the IPO, holders of at least 20% of the then outstanding Conversion
Shares may request registration for sale under the Act of all or part of the
Registrable Securities then held by them, and upon such request the Company
will promptly take the actions specified in Section 1.1.2.


 





















 


1.1.2.        Demand Procedures


 


Within ten (10) Business
Days after receipt by the Company of a written registration request under Section 1.1.1 (which request shall
specify the number of shares proposed to be registered and sold and the manner
in which such sale is proposed to be effected), the Company shall promptly give
written notice to all other Holders of the proposed demand registration, and
such other Holders shall have the right to join in the proposed registration and
sale, upon written request to the Company (which request shall specify the
number of shares proposed to be registered and sold) within five (5) Business
Days after receipt of such notice from the Company.  The Company shall thereafter, as
expeditiously as practicable, use commercially reasonable efforts to (i) file
with the SEC under the Act a registration statement on the appropriate form
concerning all Registrable Securities specified in the demand request and all
Registrable Securities with respect to which the Company has received the
written request from the other Holders and (ii) cause the registration
statement to be declared effective.  At
the request of the Holders requesting registration, the Company shall cause
each offering pursuant to Section 1.1.1 to
be managed, on a firm commitment basis, by a recognized regional or national
underwriter selected by the participating Holders and approved by the Company,
such approval not to be unreasonably withheld, conditioned or delayed.  All Holders proposing to distribute their
securities through such underwriting shall enter into an underwriting agreement
in customary form.  The Company shall not
be obligated to effect more than two registrations requested by the Holders
under Section 1.1.1(a), provided,
however, that any such request shall be deemed satisfied only when a
registration statement covering more than 75% of the Registrable Securities
specified in notices received as aforesaid, for sale in accordance with the
method of disposition specified by the Holders, has become effective.


 


1.1.3.        Delay by Company


 


The Company shall not be
required to effect a demand registration under the Act pursuant to Section 1.1.1 above if (i) the
Company receives a request for registration under Section 1.1.1 less than 90 days preceding the anticipated
effective date of a proposed underwritten public offering of securities of the
Company approved by the Company’s Board of Directors prior to the Company’s
receipt of the request and in such event the Company shall not be required to
effect any such requested registration until 120 days after the effective date
of such proposed underwritten public offering; (ii) within 120 days prior
to any such request for registration, a registration of securities of the
Company has been effected in which the Holders had the right to participate
pursuant to this Section 1.1 or Section 1.3
hereof; or (iii) the Board of


 


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Directors of the Company
reasonably determines in good faith that effecting such a demand registration
at such time would have a material adverse effect upon a proposed sale of all
(or substantially all) of the assets of the Company, or a merger,
reorganization, recapitalization, or similar transaction materially affecting
the capital structure or equity ownership of the Company, or would otherwise be
seriously detrimental to the Company because the Company was then in the
process of raising capital in the public or private markets; provided, however,
that the Company may only delay a demand registration pursuant to this Section 1.1.3 for a period not
exceeding 120 days (or until such earlier time as such transaction is
consummated or no longer proposed) and may only defer any such filing pursuant
to this Section 1.1.3 once per
calendar year.  The Company shall
promptly notify in writing the Holders requesting registration of any decision
not to effect any such request for registration pursuant to this Section 1.1.3, which notice shall set
forth in reasonable detail the reason for such decision and shall include an
undertaking by the Company promptly to notify such Holders as soon as a demand
registration may be effected.


 


1.1.4.        Reduction


 


If a demand registration is
an underwritten registration and the managing underwriters advise the Company
and the Holders participating in the demand registration in writing that in
their opinion the number of shares of Common Stock requested to be included in
such registration exceeds the number which can be sold in such offering, then
the amount of such shares that may be included in such registration shall first
be allocated pro rata among all of the Holders exercising demand rights under Section 1.1 in proportion to the
number of shares of Registrable Securities owned by them and then to the
Company or any other party seeking to participate in the offering.


 


1.1.5.        Withdrawal


 


Holders participating in any
demand registration pursuant to this Section 1.1
may withdraw at any time before a registration statement is declared
effective, and the Company may withdraw such registration statement if no
Registrable Securities are then proposed to be included (and if withdrawn by
the Company the Holders shall not be deemed to have requested a demand
registration for purposes of Section 1.1.1
hereof).  If the Company
withdraws a registration statement under this Section 1.1.5
in respect of a registration for which the Company would otherwise
be required to pay expenses under Section 1.6.2
hereof, the Holders that shall have withdrawn shall reimburse the
Company for all expenses of such registration in proportion to the number of
shares each such withdrawing Holder shall have requested to be registered


 


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unless the Holders withdrew
from the requested registration pursuant to the discovery of material
information adverse to the Company.


 


1.2.                            Piggyback Registration
Rights


 


1.2.1.        Request


 


If at any time after the
completion of the IPO, the Company proposes to file a registration statement
covering any of its securities under the Act (whether to be sold by it or by
one or more selling stockholders), other than pursuant to an offering pursuant
to a demand registration under Section 1.1.1
or Section 1.3 hereof
or an offering registered on Form S-8 or Form S-4, or successor forms
relating to employee stock plans and business combinations, the Company shall,
not less than 30 days prior to the proposed filing date of the registration
form, give written notice of the proposed registration to all Holders
specifying in reasonable detail the proposed transaction to be covered by the
registration statement, and at the written request of any Holder delivered to
the Company within 30 days after giving such notice, shall include in such
registration and offering, and in any underwriting of such offering, all
Registrable Securities as may have been designated in the Holder’s
request.  The Company shall have no
obligation to include shares of Common Stock owned by any Holder in a
registration statement pursuant to this Section 1.2,
unless and until such Holder (a) in connection with any
underwritten offering, agrees to enter into an underwriting agreement, a
custody agreement and power of attorney and any other customary documents
required in an underwritten offering all in customary form and containing
customary provisions and (b) shall have furnished the Company with all
information and statements about or pertaining to such Holder in such
reasonable detail and on such timely basis as is reasonably deemed by the
Company to be legally required with respect to the preparation of the
registration statement.


 


1.2.2.        Reduction


 


If a registration in which
any Holder has the right or is otherwise permitted to participate pursuant to
this Section 1.2 is an
underwritten registration, and the managing underwriters advise the Company in
writing that in their opinion the number of securities requested to be included
in such registration exceeds the number which can be sold in such offering, the
Company shall include in such registration (i) first, the shares proposed
to be sold by the Company, (ii) second, the shares proposed to be sold by
Holders exercising rights under Section 1.2.1,
allocated pro rata among such Holders in proportion to the number of
Registrable Securities owned by them, (iii) third, the shares proposed to
be sold by holders exercising rights pursuant to the


 


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Registration Rights Agreement
dated May 25, 2000 among the Company and such holders and (iv) fourth,
by any other stockholders proposing to sell shares of Common Stock pursuant to
such registration.


 


1.3.                            Registration on Form S-3


 


Subject to the limitations
set forth in Section 1.1.3, if
at any time the Company is eligible to use Form S-3 (or any successor
form) for secondary sales any Holder may request (by written notice to the
Company stating the number of Registrable Securities proposed to be sold and
the intended method of disposition) that the Company file a registration
statement on Form S-3 (or any successor form) for a public sale of all or
any portion of the Registrable Securities beneficially owned by it, provided
that the reasonably anticipated aggregate price to the public of such
Registrable Securities shall be at least $1 million.  At the written request of the Holder
requesting such registration, such registration shall be for a delayed or
continuous offering under Rule 415 under the Act.  Upon receiving such request, the Company
shall use commercially reasonable efforts to promptly file a registration statement
on Form S-3 (or any successor form) to register under the Act for public
sale in accordance with the method of disposition specified in such request,
the number of shares of Registrable Securities specified in such request and
shall otherwise carry out the actions specified in Section 1.1.2 and 1.4.  The
Company shall be obligated to effect unlimited registrations on Form S-3
under this Section 1.3.


 


1.4.                            Registration Procedures


 


Whenever any Holder has
requested that any shares of Common Stock be registered pursuant to Sections 1.1, 1.2 or 1.3 hereof, the Company shall, as
expeditiously as reasonably possible:


 


(1)                                 prepare and file with the SEC a registration
statement with respect to such shares and use commercially reasonable efforts
to cause such registration statement to become effective as soon as reasonably
practicable thereafter (provided that before filing a registration statement or
prospectus or any amendments or supplements thereto, the Company shall furnish
counsel for such Holder with copies of all such documents proposed to be
filed);


 


(2)                                 prepare and file with the SEC such amendments
and supplements to such registration statement and prospectus used in
connection therewith as may be necessary to keep such registration statement
effective for a period of not less than 90


 


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days (two (2) years in the
case of a registration pursuant to Section 1.3
hereof), or until such earlier time as Holder has completed the
distribution described in such registration statement, whichever occurs first;


 


(3)                                 furnish to such Holder such number of copies
of such registration statement, each amendment and supplement thereto, the
prospectus included in such registration statement (including each preliminary
prospectus), and such other documents as such Holder may reasonably request;


 


(4)                                 use commercially reasonable efforts to
register or qualify such shares under such other securities or blue sky laws of
such jurisdictions as such Holder requests (and to maintain such registrations
and qualifications effective for the applicable period of time set forth in Section 1.4(2) hereof, and to do
any and all other acts and things which may be necessary or advisable to enable
such Holder to consummate the disposition in such jurisdictions of such shares
(provided that the Company will not be required to (i) qualify generally
to do business in any jurisdiction where it would not be required but for this
subsection (4), (ii) subject itself to taxation in any such
jurisdiction, or (iii) file any general consent to service of process in
any such jurisdiction); provided that, notwithstanding anything to the contrary
in this Agreement with respect to the bearing of expenses, if any such
jurisdiction shall require that expenses incurred in connection with the
qualification of such shares in that jurisdiction be borne in part or full by
such Holder, then such Holder shall pay such expenses to the extent required by
such jurisdiction;


 


(5)                                 notify such Holder, at any time when a
prospectus relating thereto is required to be delivered under the Act within
the period that the Company is required to keep the registration statement
effective, of the happening of any event as a result of which the prospectus
included in any such registration statement contains an untrue statement of a
material fact or omits any fact necessary to make the statements therein not
misleading, and promptly prepare, file and furnish to the Holder a supplement
or amendment to such prospectus so that, as thereafter delivered to the
purchasers of such shares, such prospectus will not contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or, in light of the circumstances then existing, necessary to make the
statements therein not misleading;


 


(6)                                 cause all such shares to be listed on
securities exchanges, if any, on which similar securities issued by the Company
are then listed (or if not then listed, on such exchanges as are requested by a
majority of the participating Holders);


 


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(7)                                 provide a transfer agent and registrar for
all such shares not later than the effective date of such registration
statement;


 


(8)                                 enter into such customary agreements and take
all such other customary actions as such Holder reasonably requests (and
subject to its reasonable approval) in order to expedite or facilitate the
disposition of such shares;


 


(9)                                 make available for inspection by such Holder,
by any underwriter participating in any distribution pursuant to such
registration statement, and by any attorney, accountant or other agent retained
by such Holder or by any such underwriter, all financial and other records,
pertinent corporate documents, and properties (other than confidential
intellectual property) of the Company; and


 


(10)                          in connection with an underwritten offering
pursuant to a registration statement filed pursuant to Section 1.1 hereof, enter into an
underwriting agreement in customary form and containing reasonable customary
provisions, including provisions for indemnification of underwriters and
contribution, if so requested by any underwriter.


 


1.5.                            Holdback Agreement


 


(a)                                 Notwithstanding anything in this Agreement to
the contrary, if after any registration statement to which the rights hereunder
apply becomes effective (and prior to completion of any sales thereunder), the
Board of Directors determines in good faith that the failure of the Company to (i) suspend
sales of stock under the registration statement or (ii) amend or
supplement the registration statement, would have a material adverse effect on
the Company, the Company shall so notify each Holder participating in such
registration and each Holder shall suspend any further sales under such
registration statement until the Company advises the Holder that the
registration statement has been amended or that conditions no longer exist
which would require such suspension, provided that the Company may impose any
such suspension for no more than 30 days and no more than two (2) times
during any twelve month period.


 


(b)                                 In the event that the Company effects a
registration of any securities under the Act in its IPO, each Holder agrees not
to effect any sale, transfer, disposition or distribution, including any sale
pursuant to Rule 144 under the Act, of any Equity Securities (except as
part of such offering) during the 180-day period commencing with the effective
date of the registration statement for the IPO, provided


 


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that all holders of 5% or more
of the Company’s outstanding Equity Securities, and officers and directors of
the Company, to the extent that they hold Equity Securities and have been
requested by the managing underwriter to do so, enter into similar agreements
providing for similar restrictions on sales.


 


1.6.                            Registration Expenses


 


1.6.1.                  Holder Expenses


 


If, pursuant to Sections 1.1, 1.2 or 1.3 hereof, Registrable Securities are
included in a registration statement, then the Holder thereof shall pay all
transfer taxes, if any, relating to the sale of its shares, and any
underwriting discounts or commissions or the equivalent thereof applicable to
the sale of its shares.


 


1.6.2.                  Company Expenses


 


Except for the fees and
expenses specified in Section 1.6.1 hereof
and except as provided below in this Section 1.6.2,
the Company shall pay all expenses incident to the registration of
shares by the Company and any Holders pursuant to Sections 1.1, 1.2 or 1.3 hereof,
and to the Company’s performance of or compliance with this Agreement,
including, without limitation, all registration and filing fees, fees and
expenses of compliance with securities or blue sky laws, underwriting
discounts, fees and expenses (other than any Holder’s portion of any
underwriting discounts or commissions or the equivalent thereof), printing
expenses, messenger and delivery expenses, and reasonable fees and expenses of
counsel for the Company and a single counsel for all Holders selling shares and
all independent certified public accountants and other persons retained by the
Company.


 


1.6.3.                  Indemnity and Contribution


 


(a)                                 In the event that any shares owned by a
Holder are proposed to be offered by means of a registration statement pursuant
to Section 1.1, 1.2 or 1.3 hereof, to the extent permitted by law,
the Company agrees to indemnify and hold harmless such Indemnified Person from
and against all demands, claims, actions or causes of action, assessments,
losses, damages, liabilities, costs, and expenses, including, without
limitation, interest, penalties, and attorneys’ fees and disbursements,
asserted against, resulting to, imposed upon or incurred by such Indemnified
Person, directly or indirectly (hereinafter referred to in this Section 1.6.3 in the singular as a “claim”
and in the plural as “claims”), based upon, arising out of or resulting from
any breach of representation or warranty made by the Company in any
underwriting agreement or


 


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any untrue statement of a
material fact contained in the registration statement or any omission to state
therein a material fact necessary to make the statements made therein, in the
light of the circumstances under which they were made, not misleading (each, a “Violation”), except insofar as such claim is based
upon, arises out of or results from information furnished to the Company in
writing by such Indemnified Person for use in connection with the registration
statement.


 


(b)                                 To the extent permitted by law, each Holder
will, severally, and not jointly, if Registrable Securities held by such Holder
are included in the securities as to which such registration is being effected,
indemnify the Company, each of its directors and officers, each person who
controls the Company within the meaning of Section 15 of the Securities
Act, and any other Holder selling securities under such registration statement,
each of such Holder’s officers and directors and each person controlling such
Holder within the meaning of Section 15 of the Securities Act, against all
claims based upon, arising out of or resulting from any Violation, except
insofar as such claim is based upon, arises out of or results from information
furnished to the Holder in writing by an Indemnified Person for use in
connection with the registration statement, and will reimburse the Company,
such other Holders, and such directors, officers, persons, underwriters or
control persons for any legal or any other expenses reasonably incurred, as
such expenses are incurred, in connection with investigating or defending any
such claim if it is judicially determined that there was such a Violation, but
only to the extent that such Violation occurs in reliance upon and strictly in
conformity with written information furnished to the Company by such Holder
under an instrument duly executed by such Holder and stated specifically for
use in connection with such registration. 
Notwithstanding the foregoing, the liability of each Holder under this Section 1.6.3(b) shall
be limited in an amount equal to the net proceeds from the offering received by
such Holder, unless such liability arises out of or is based on willful
misconduct or fraud by such Holder.  In
addition, notwithstanding the foregoing, the indemnity agreement contained in
this Section 1.6.3(b) shall not apply to amounts paid in settlement
of any such claim if such settlement is effected without the consent of the
Holder, which consent shall not be unreasonably withheld.  Furthermore, no Holder selling securities
under a registration statement shall be liable in any case to the extent that,
prior to the filing of any such registration statement or prospectus or
amendment thereof or supplement thereto, such Holder selling securities has
furnished in writing to the Company information expressly for use in such registration
statement or prospectus or any amendment thereof or supplement thereto which
corrected or made not misleading information previously furnished to the
Company.


 


(c)                                  The indemnification provisions set forth
herein shall be in addition to any liability the Indemnifying Person may
otherwise have to the Indemnified


 


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Persons.  Promptly after receiving notice of any claim
in respect of which an Indemnified Person may seek indemnification under this Section 1.6.3, such Indemnified Person
shall submit written notice thereof to either the Company or the Holders, as
the case may be (sometimes being hereinafter referred to as an “Indemnifying Person”).  The
omission of the Indemnified Person so to notify the Indemnifying Person of any
such claim shall not relieve the Indemnifying Person from any liability it may
have hereunder except to the extent that (a) such liability was caused or
increased by such omission, or (b) the ability of the Indemnifying Person
to reduce such liability was materially adversely affected by such
omission.  In addition, the omission of
the Indemnified Person so to notify the Indemnifying Person of any such claim
shall not relieve the Indemnifying Person from any liability it may have otherwise
than hereunder.  The Indemnifying Person
shall have the right to undertake, by counsel or representatives of its own
choosing, the defense, compromise or settlement (without admitting liability of
the Indemnified Person) of any such claim asserted, such defense, compromise or
settlement to be undertaken at the expense of the Indemnifying Person, and the
Indemnified Person shall have the right to engage separate counsel, at its own
expense, whom counsel for the Indemnifying Person shall keep informed and
consult with in a reasonable manner.  In
the event the Indemnifying Person shall elect not to undertake such defense by
its own representatives, the Indemnifying Person shall give prompt written
notice of such election to the Indemnified Person, and the Indemnified Person
shall undertake the defense, compromise or settlement (without admitting
liability of the Indemnified Person) thereof on behalf of and for the account
of the Indemnifying Person by counsel or other representatives designated by
the Indemnified Person.  Notwithstanding
the foregoing, no Indemnifying Person shall be obligated hereunder with respect
to amounts paid in settlement of any claim if such settlement is effected
without the consent of such Indemnifying Person (such consent not to be
unreasonably withheld).


 


(d)                                 If the indemnification provided for in this Section 1.6 is held by a court of
competent jurisdiction to be unavailable to an Indemnified Person, then the
Indemnifying Person, in lieu of indemnifying such Indemnified Person hereunder,
shall contribute to the amount paid or payable by such Indemnified Person as a
result of any losses or claims in such proportion as is appropriate to reflect
the relative fault of the Indemnified Person on the one hand and the
Indemnifying Person on the other in connection with the statements or omissions
that resulted in such losses or claims as well as any other relevant equitable
considerations.  The relative fault of
the Indemnified Person and the Indemnifying Person shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission to state a material fact relates to information
supplied by the Indemnifying Person or by the Indemnified Person and the
parties’ relative intent,


 


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knowledge and access to
information and opportunity to correct or prevent such statement or
omission.  In no event will the liability
of any Holder for contribution exceed the net proceeds received by such Holder
in any sale of securities to which such liability relates.


 


1.7.                            Grant and Transfer of
Registration Rights


 


Except for registration
rights which have been granted by the Company as of the date hereof and
registration rights granted by the Company after the date hereof which are
subordinate to the rights of the Holders hereunder, the Company shall not grant
any registration rights to any other person or entity without the prior written
consent of a majority in interest of all Registrable Securities held by the
Holders.  Holders shall have the right to
transfer or assign the rights contained in this Agreement (i) to any
limited partner or affiliate of a Holder in connection with the transfer of any
Registrable Securities or (ii) to any third party transferee acquiring at
least 20% of the Registrable Securities issued to the Holder as of the date
hereof or the shares of Common Stock issued upon conversion of such Registrable
Securities; provided: (a) the Company is, within a reasonable time after
such transfer, furnished with written notice of the name and address of such
transferee or assignee and the securities with respect to which such
registration rights are being assigned; (b) such transferee or assignee
agrees in writing to be bound by and subject to the terms and conditions of
this Agreement; and (c) such assignment shall be effective only if
immediately following such transfer the further disposition of such securities
by the transferee or assignee is restricted under the Act.


 


1.8.                            Information from Holder


 


It shall be a condition
precedent to the obligations of the Company to take any action pursuant to this
Section 1 with respect to the Registrable
Securities of any selling Holder that such Holder shall furnish to the Company
such information regarding itself, the Registrable Securities held by it, and
the intended method of disposition of such securities as shall be required to
effect the registration of such Holder’s Registrable Securities.


 


2.                                     DEFINITIONS


 


The capitalized terms
contained in this Agreement shall have the following meanings unless otherwise
specifically defined:


 


“Act” shall mean the
Securities Act of 1933, as amended.


 


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“Agreement” shall mean this
Registration Rights Agreement.


 


“Business Day” shall mean
Monday through Friday and shall exclude any federal or bank holidays observed
in New York City.


 


“Company” shall mean
American Education System, Inc., a Delaware corporation, or any successor
thereto.


 


“Common Stock” shall mean
the common stock of the Company.


 


“Conversion Shares” shall
mean the Common Stock issued or issuable pursuant to the conversion of the Series C
Preferred.


 


“Equity Securities” shall
mean the Common Stock, the Series C Preferred and any warrants or other
rights to subscribe for or to purchase, or any options for the purchase of,
Common Stock, any stock or security convertible into or exchangeable for Common
Stock or any other stock, security or interest in the Company whether or not
convertible into or exchangeable for Common Stock.


 


“Holders” shall mean ABS and
any other person or entity that is a valid transferee of the rights granted
hereunder pursuant to Section 1.7 hereof.


 


“Indemnified Person” means,
with respect to a Holder, such Holder, any underwriter participating in such
offering, each officer, partner, manager and director of such person, each
person, if any, who controls or may control such Holder or underwriter within
the meaning of the Act and each representative of any Holder serving on the
Board of Directors of the Company and with respect to the Company, the Company,
any underwriter participating in such offering, each officer, partner, manager,
stockholder, director, employee or agent of the Company or such underwriter,
each person, if any who controls or may control the Company or such underwriter
within the meaning of the Act.


 


“Indemnifying Person” shall
have the meaning ascribed to that term in Section 1.6.3.


 


“IPO” shall mean the initial
public offering of the Company’s Equity Securities registered under the Act.


 


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“Registrable Securities”
shall mean (i) shares of Common Stock, including the Conversion Shares and
(ii) any equity securities issued as a distribution with respect to or in
exchange for or in replacement for any of the shares referred to in clause (i);
provided, however, that Registrable Securities shall not include any securities
that have been previously sold pursuant to a registration statement filed under
the Act or under Rule 144 promulgated under the Act, or which have
otherwise been transferred in a transaction in which the transferor’s rights
under this Agreement are not assigned, or, as to any Holder, all of such Holder’s
Equity Securities if all of such Equity Securities are then eligible for sale
in a single transaction under Rule 144(k), promulgated under the Act.


 


3.                                  MISCELLANEOUS


 


3.1.                            Entire Agreement; Amendment


 


This Agreement constitutes
the entire agreement among the parties hereto with respect to the matters
provided for herein, and it supersedes all prior oral or written agreements,
commitments or understandings with respect to the matters provided for
herein.  This Agreement may not be
amended without the written consent of the Company and the Holders.


 


3.2.                            Waiver


 


No delay or failure on the
part of any party hereto in exercising any right, power or privilege under this
Agreement or under any other instruments given in connection with or pursuant
to this Agreement shall impair any such right, power or privilege or be
construed as a waiver of any default or any acquiescence therein.  No single or partial exercise of any such
right, power or privilege shall preclude the further exercise of such right,
power or privilege, or the exercise of any other right, power or
privilege.  No waiver shall be valid
against any party hereto unless made in writing and signed by the party against
whom enforcement of such waiver is sought and then only to the extent expressly
specified therein.


 


3.3.                            Termination


 


This Agreement shall
forthwith become wholly void and of no effect upon the earlier to occur of the
following: (i) as to any Holder, at such time as all of such Holder’s
Equity Securities are then eligible for sale in a single transaction under Rule


 


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144(k), promulgated under the
Act, or (ii) seven years from the closing date of the Company’s IPO.


 


3.4.                            No Third Party Beneficiaries


 


Except to the extent that
the rights hereunder are assigned in accordance with Section 1.7, it is the
explicit intention of the parties hereto that no person or entity other than
the parties hereto is or shall be entitled to bring any action to enforce any
provision of this Agreement against any of the parties hereto, and the
covenants, undertakings and agreements set forth in this Agreement shall be
solely for the benefit of, and shall be enforceable only by, the parties hereto
or their respective successors, heirs, executors, administrators, legal
representatives and permitted assigns.


 


3.5.                            Binding Effect


 


This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors, heirs, executors, administrators, legal representatives
and permitted assigns.


 


3.6.                            Governing Law


 


This Agreement, the rights
and obligations of the parties hereto, and any claims or disputes relating
thereto, shall be governed by and construed in accordance with the laws of the
State of Delaware (excluding the choice of law rules thereof).


 


3.7.                            Notices


 


All notices, demands,
requests, or other communications which may be or are required to be given,
served, or sent by any party to any other party pursuant to this Agreement
shall be in writing and shall be hand-delivered, sent by overnight courier
service or mailed by first-class, registered or certified mail, return receipt
requested, postage prepaid, addressed as follows:


 


(i)                                     If to the Company:


 


2131 K Street, N.W

Washington, D.C. 20037

Attention: Chief Executive Officer


 


15





















 


with a copy (which shall not
constitute notice) to:


 


Hogan & Hartson,
L.L.P.

555 Thirteenth Street, N.W.

Washington, D.C. 20004

Attention: Michael C. Williams


 


(ii)                                  If to any Holder, such Holder’s address as
appearing on the records of the Company.


 


Each party may designate by
notice in writing a new address to which any notice, demand, request or
communication may thereafter be so given, served or sent.  Each notice, demand, request, or
communication which shall be hand-delivered or mailed in the manner described
above, shall be deemed sufficiently given, served, sent, received or delivered
for all purposes at such time as it is delivered to the addressee (with the
return receipt or the delivery receipt being deemed conclusive, but not
exclusive, evidence of such delivery) or at such time as delivery is refused by
the addressee upon presentation.


 


3.8.                            Execution in Counterparts


 


To facilitate execution,
this Agreement may be executed in as many counterparts as may be required; and
it shall not be necessary that the signatures of, or on behalf of, each party,
or that the signatures of all persons required to bind any party, appear on
each counterpart; but it shall be sufficient that the signature of, or on
behalf of, each party, or that the signatures of the persons required to bind
any party, appear on one or more of the counterparts.  All counterparts shall collectively
constitute a single agreement.  It shall
not be necessary in making proof of this Agreement to produce or account for
more than a number of counterparts containing the respective signatures of, or
on behalf of, all of the parties hereto.


 


16





















 


IN WITNESS WHEREOF, the
undersigned have duly executed this Agreement, or have caused this Agreement to
be duly executed on their behalf, as of the day and year first hereinabove set
forth.


 


	
   

  	
  LIQUIDITY SERVICES, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William P. Angrick, III

  	
   

  
	
   

  	
     Name:

  	
  William P. Angrick, III,

  
	
   

  	
     Title:

  	
  Chairman and Chief Executive Officer

  
						



 





















 


	
   

  	
  ABS CAPITAL PARTNERS IV, L.P.

  
	
   

  	
     By: ABS Partners IV,
  L.L.C.

  
	
   

  	
     Its General Partner

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Phillip A. Clough

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Phillip A. Clough

  	
   

  
	
   

  	
   

  	
   

  	
  Title: Managing Member

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ABS CAPITAL PARTNERS IV-A, L.P.

  
	
   

  	
     By: ABS Partners IV, L.L.C.

  
	
   

  	
     Its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Phillip A. Clough

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Phillip A. Clough

  	
   

  
	
   

  	
   

  	
   

  	
  Title: Managing Member

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ABS CAPITAL PARTNERS IV OFFSHORE L.P.

  
	
   

  	
     By: ABS Partners IV, L.L.C.

  
	
   

  	
     Its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Phillip A. Clough

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Phillip A. Clough

  	
   

  
	
   

  	
   

  	
   

  	
  Title: Managing Member

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ABS CAPITAL PARTNERS IV SPECIAL

  
	
   

  	
     OFFSHORE L.P.

  
	
   

  	
     By: ABS Partners IV, L.L.C.

  
	
   

  	
     Its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Phillip A. Clough

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Phillip A. Clough

  	
   

  
	
   

  	
   

  	
   

  	
  Title: Managing Member