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Underwriting Agreement

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Title:

Underwriting Agreement

Entities:

Deutsche Bank Securities Inc.; Digital River, Inc.; U.S. Bancorp Piper Jaffray Inc.; U.S. Bancorp; Wilson Sonsini Goodrich & Rosati

Date:

2003

Size:

Preview shows 11KB of 77KB total

Price:

$42

ID:

#1207554

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2,100,000 Shares of Common Stock

Digital River, Inc.

Common Stock

UNDERWRITING AGREEMENT

July 16, 2003

Deutsche Bank Securities Inc.

U.S. Bancorp Piper Jaffray Inc.

RBC Capital Markets

c/o Deutsche Bank Securities Inc.

60 Wall Street, 4th Floor

New York, NY 10005

Dear Sirs:

Digital River, Inc., a Delaware corporation (the Company), proposes to issue and sell 2,100,000 shares (the Firm Shares) of its common stock, par value $0.01 per share (Common Stock). The Company also proposes to issue and sell at the Underwriters option an aggregate of up to 310,000 additional shares of Common Stock (the Option Shares) as set forth below. The Firm Shares and the Option Shares (to the extent the aforementioned option is exercised) are herein collectively called the Offered Securities. The Company hereby agrees with the several Underwriters (the Underwriters) named in Schedule I hereto for whom you are acting as representatives, as follows:

1. Representations and Warranties of the Company. The Company represents and warrants to, and agrees with, the Underwriters that:

(a) A registration statement on Form S-3 (No. 333-81626) relating to the Offered Securities, including a form of prospectus (initial registration statement), has been filed with the Securities and Exchange Commission (Commission) and has been declared effective under the Securities Act of 1933 (Act) and is not proposed to be amended. For purposes of this Agreement, Effective Time with respect to the initial registration statement means the date and time the most recent post-effective amendment thereto filed prior to the execution and delivery of this Agreement was declared effective by the Commission; and with respect to any Additional Registration Statement (as defined below), Effective Time means, the date and time as of which such registration statement is filed and becomes effective pursuant to Rule 462(b) under the Act (Rule 462(b)). Effective Date with respect to the initial registration statement or any Additional Registration Statement (as defined below) means the date of the Effective Time thereof. The initial registration statement, as amended at its Effective Time, including all material incorporated by reference therein, and all information contained in any Additional Registration Statement and deemed to be a part of the initial registration statement as of the Effective Time of any Additional Registration Statement pursuant to the General Instructions of the Form on which it is filed and including all information (if any) deemed to be a part of the initial registration statement as of its Effective Time pursuant to Rule 430A(b)

(Rule 430A(b)) under the Act, is hereinafter referred to as the Initial Registration Statement. Any additional registration statement relating to the Offered Securities, which may be filed with the Commission pursuant to Rule 462(b), and as amended at its Effective Time, including the contents of the initial registration statement incorporated by reference therein (including the documents incorporated by reference in the Initial Registration Statement) and including all information (if any) deemed to be a part of the additional registration statement as of its Effective Time pursuant to Rule 430A(b), is hereinafter referred to as the Additional Registration Statement. The Initial Registration Statement and the Additional Registration Statement are herein referred to collectively as the Registration Statements and individually as a Registration Statement. After the execution of this Agreement and within the time required by Rule 424(b) under the Act (Rule 424(b)), the Company will file with the Commission pursuant to Rule 424(b) a prospectus supplement relating to the Offered Securities (Prospectus Supplement), together with the related prospectus dated February 12, 2002 (Base Prospectus), and the Company has previously advised you of all information that will be set forth therein. The Prospectus Supplement and the Base Prospectus, each in the form first furnished to the Underwriters for use in connection with the offering of the Offered Securities, including all material incorporated by reference therein, are hereinafter referred to, collectively, as the Prospectus. No document has been or will be prepared or distributed in reliance on Rule 434 under the Act. References herein to amendments or supplements to any Registration Statement or the Prospectus shall mean and include any document filed with the Commission on or after the date of this Agreement that are incorporated or deemed to be incorporated by reference in such Registration Statement or the Prospectus. The Company meets the requirements for the use of Form S-3 under the Act.

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