10-K 1 c24304e10vk.htm FORM 10-K e10vk
Table of Contents

 
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
Form 10-K
 
     
(Mark One)    
þ
  ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
    For the fiscal year ended December 31, 2007.
OR
o
  TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934.
 
Commission File Number: 000-24643
 
DIGITAL RIVER, INC.
(Exact name of registrant as specified in its charter)
 
     
DELAWARE   41-1901640
(State or other jurisdiction of   (I.R.S. Employer
Incorporation or organization)   Identification No.)
 
9625 WEST 76TH STREET
EDEN PRAIRIE, MINNESOTA 55344
(Address of principal executive offices)
 
(952) 253-1234
(Registrant’s telephone number, including area code)
 
Securities registered pursuant to Section 12(b) of the Act:
Name of each Exchange on which registered:
Common Stock $0.01 par value Nasdaq Global Select Market
 
Securities registered pursuant to Section 12(g) of the Act:
None
 
Indicate by checkmark if the registrant is a well-known seasoned issuer as defined in Rule 405 of the Securities Act.  Yes þ     No o
 
Indicated by checkmark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act.  Yes o     No þ
 
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 filing requirements for the past 90 days.  Yes þ     No o
 
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K 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 þ
  Accelerated filer o   Non-accelerated filer o   Smaller reporting company o
(Do not check if a smaller reporting company)
 
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act).  Yes o     No þ
 
As of June 30, 2007, there were 41,489,018 shares of Digital River, Inc. common stock, issued and outstanding. As of such date, based on the closing sales price as quoted by The NASDAQ Stock Market, 40,191,937 shares of common stock, having an aggregate market value of approximately $1,818,685,000 were held by non-affiliates. For purposes of the above statement only, all directors and executive officers of the registrant are assumed to be affiliates.
 
The number of shares of common stock outstanding at February 1, 2008 was 40,580,644 shares.
 
DOCUMENTS INCORPORATED BY REFERENCE
 
Certain sections of the Registrant’s definitive Proxy Statement for the 2008 Annual Meeting of Stockholders are incorporated by reference in Part III of this Form 10-K to the extent stated herein.
 


 

 
TABLE OF CONTENTS
 
                 
      Business     3  
      Risk Factors     13  
      Unresolved Staff Comments     27  
      Properties     27  
      Legal Proceedings     27  
      Submission of Matters to a Vote of Security Holders     28  
 
      Market for Registrant’s Common Equity, Related Stockholder Matters, and Issuer Purchases of Equity Securities     29  
      Selected Financial Data     31  
      Management’s Discussion and Analysis of Financial Condition and Results of Operations     32  
      Qualitative and Quantitative Disclosures about Market Risk     41  
      Financial Statements and Supplementary Data     43  
      Changes In and Disagreements With Accountants on Accounting and Financial Disclosure     43  
      Controls and Procedures     43  
      Other Information     45  
 
      Directors, Executive Officers and Corporate Governance     46  
      Executive Compensation     46  
      Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters     46  
      Certain Relationships and Related Transactions, and Director Independence     46  
      Principal Accountant Fees and Services     46  
 
      Exhibits and Financial Statement Schedules     47  
 2007 Equity Incentive Plan
 Computation of Ratio of Earnings to Fixed Charges
 Subsidiaries
 Consent of Independent Registered Public Accounting Firm
 Certification of CEO Pursuant to Section 302
 Certification of CFO Pursuant to Section 302
 Certification of CEO and CFO Pursuant to Section 906


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CAUTIONARY STATEMENT PURSUANT TO THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995
 
This Annual Report on Form 10-K contains certain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. All statements, other than statements of historical fact, regarding our strategy, future operations, financial position, estimated revenue, projected costs, projected savings, prospects, plans, opportunities and objectives constitute “forward-looking statements.” The words “may,” “will,” “expect,” “plan,” “anticipate,” “believe,” “estimate,” “potential,” or “continue” and similar types of expressions identify forward-looking statements, although not all such statements contain these identifying words. These forward-looking statements are based upon information that is currently available to us and/or management’s current expectations, speak only as of the date hereof, and are subject to risks and uncertainties. We expressly disclaim any obligation, except as required by law, or undertaking to update or revise any forward-looking statements contained or incorporated by reference herein to reflect any change or expectations with regard thereto or to reflect any change in events, conditions, or circumstances on which any such forward-looking statement is based, in whole or in part. Our actual results may differ materially from the results discussed in or implied by such forward-looking statements. We are subject to a number of risks, some of which may be similar to those of other companies of similar size in our industry, including pre-tax losses, rapid technological changes, competition, limited number of suppliers, customer concentration, failure to successfully integrate acquisitions, adverse government regulations, failure to manage international activities, and loss of key individuals. Risks that may affect our operating results include, but are not limited to, those discussed in Part I Item 1A, titled “Risk Factors.” Readers should carefully review the risk factors described in this document and in other documents that we file from time to time with the Securities and Exchange Commission.
 
PART I
 
ITEM 1.   BUSINESS.
 
Overview
 
We provide end-to-end global e-commerce solutions to a wide variety of companies in software, consumer electronics, computer and video games, and other markets. We were incorporated in 1994 and began building and operating online stores for our clients in 1996. We offer our clients a broad range of services that enable them to quickly and cost effectively establish an online sales channel capability and to subsequently manage and grow online sales on a global basis. Our offerings help our clients mitigate risk and grow their online revenues. Our services include design, development and hosting of online stores, store merchandising and optimization, order management, denied parties screening, export controls and management, tax compliance and management, digital product delivery via download, physical product fulfillment, subscription management, multi-lingual customer service, online marketing including e-mail marketing, management of paid search programs, website optimization, web analytics and reporting.
 
Our products and services allow our clients to focus on promoting and marketing their brands while leveraging our investments in technology and infrastructure to facilitate the purchase of products from their online stores. When shoppers visit the store on one of our clients’ websites, they are transferred to our e-commerce platform. Once on our system, shoppers can browse for products and make purchases online. After a purchase is made, we either deliver the product digitally via download over the Internet or transmit instructions to a third party for physical fulfillment of the order. We also process the buyer’s payment, including collection and remittance of applicable taxes, and can provide customer service in multiple languages to handle order-related questions. We believe we are an example of an emerging trend known as “Software as a Service” (SaaS). We have invested substantial resources to develop our e-commerce software platform and we provide access and use of it to our clients as a service as opposed to selling the software to be operated on their own in-house computer hardware.
 
In addition to the services we provide that facilitate the completion of an online transaction, we also offer services designed to increase traffic to our clients’ online stores and improve the sales productivity of those


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stores. Our services include paid search advertising, search engine optimization, affiliate marketing, store optimization, and e-mail optimization. All of our services are designed to help our clients acquire customers more effectively, sell to those customers more often and more efficiently, and increase the lifetime value of each customer.
 
Our clients include many of the largest software, consumer electronics, and computer and video game companies and major retailers of these products, including Allume Systems, Inc., Autodesk, Inc., CompUSA, Inc., Computer Associates, Canon Inc., Electronic Arts, Inc., Hewlett Packard Company, Lexmark, Inc., Microsoft Corporation, Nuance Communications Inc, Symantec Corporation, and Trend Micro, Inc.
 
General information about us can be found at www.digitalriver.com under the “Company/Investor Relations” link. Our annual report on Form 10-K, quarterly reports on Form 10-Q and current reports on Form 8-K, as well as any amendments or exhibits to those reports, are available free of charge through our website as soon as reasonably practicable after we file them with the Securities and Exchange Commission.
 
Industry Background
 
Growth of the Internet and E-Commerce.  E-Commerce sales continue to grow at a rapid rate. The U.S. Commerce Department reported that e-commerce sales in the fourth quarter of 2007 rose 18.0% compared to the fourth quarter of 2006, continuing a series of strong quarterly growth reports. We believe there are a number of factors that are contributing to the continued growth of e-commerce: (i) adoption of the Internet continues to increase globally; (ii) broadband technology is increasingly being used to deliver Internet service enabling the delivery of richer content as well as larger files to consumers; (iii) Internet users are becoming increasingly comfortable with the process of buying products online; (iv) the functionality of online stores continues to improve, offering a broader assortment of payment options with more promotion alternatives; (v) businesses are placing more emphasis on their online channel, reaching a larger audience at comparatively lower costs than the methods used to drive traffic to traditional bricks-and-mortar retail stores; and (vi) concerns about conflicts between online and traditional sales channels continue to subside.
 
Growing Interest in Direct Sales of Products to Consumers.  Increasingly, companies are selling their products directly to consumers via online sales channels. This is due to increased competition for shelf space in the traditional retail channels as well as recognition that direct sales channels can co-exist with traditional sales channels.
 
Opportunities for Outsourced E-Commerce.  We believe the market for outsourced e-commerce will continue to grow as there are advantages to outsourced e-commerce that will continue to make it an attractive alternative to building and maintaining this capability in-house. These advantages include: (i) eliminating the substantial up-front and ongoing costs of computer hardware, network infrastructure, specialized application software and training and support costs; (ii) reducing the time it takes to get online stores live and productive; (iii) shifting the ongoing technology, financial, regulatory and compliance risks to a proven service provider; (iv) leveraging the direct marketing expertise of an e-commerce service provider to accelerate growth of an online business; and (v) allowing businesses to focus on their specific core competencies.
 
Once an online store is established, it is immediately accessible to Internet users around the world. Web pages must be presented and customer service inquiries handled in multiple languages, and a variety of currencies and payment options must be accepted. The appropriate taxes must be collected and paid, payment fraud risk mitigated, fulfillment provided, and assurances made that products are not shipped to banned locations. These and other requirements of a global e-commerce system make it an expensive and potentially risky undertaking for any business. These factors also make a comprehensive outsourced offering, such as that provided by Digital River, an attractive alternative.
 
Shift from Physical to Electronic Delivery of Software.  Consumers have grown increasingly comfortable with the electronic delivery of digital products, such as software, computer and video games, music, and video. This shift from physical to electronic delivery is being driven by benefits to both buyers and sellers of these products. For buyers, downloaded products are immediately available for use and a wider variety of products are available than can be found in most retail stores. For sellers, electronic delivery eliminates


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inventory-stocking requirements, shipping, handling, storage and inventory-carrying costs as well as the risk of product obsolescence.
 
The Digital River Solution
 
Our solution combines a robust e-commerce technology platform and a suite of services to help businesses worldwide grow their online revenues and avoid the costs and risks of running a global e-commerce operation in-house. We offer a comprehensive e-commerce solution that operates seamlessly as part of a client’s website. We provide services that facilitate e-commerce transactions and drive traffic to our clients’ online stores. Our services include design, development and hosting of online stores, store merchandising, order management, fraud prevention, popular online payment methods, export controls, tax compliance and management, digital product delivery via download, physical product fulfillment, multi-lingual customer service, subscription management, online marketing services including e-mail marketing, management of paid search programs, web analytics and reporting. We also provide our clients with increased product visibility and sales opportunities through our large network of online channel partners, including retailers and affiliates. We generate a substantial majority of our revenue on a revenue-share basis, meaning that we are paid a percentage of the selling price of each product sold at a clients’ online store that is being managed by Digital River. We believe this revenue share model aligns our interests with those of our clients.
 
Benefits to Clients
 
Reduced Total Cost of Ownership and Risk
 
Utilizing the Digital River solution, businesses can dramatically reduce or eliminate upfront and ongoing hardware, software, maintenance and support costs associated with developing, customizing, deploying, maintaining and upgrading an in-house global e-commerce solution. They can have a global e-commerce presence without assuming the costs and risks of internal development and leverage the investments we make in our e-commerce system. In addition, we help mitigate the risks of global e-commerce, including risks associated with payment fraud, tax compliance, and regulatory compliance. Our ongoing investments in the latest technologies and e-commerce functionality help ensure our clients maintain pace with industry advances.
 
Revenue Growth
 
We can assist our clients in growing their online businesses by (i) facilitating the acquisition of new customers, improving the retention of existing customers, and increasing the lifetime value of each customer; (ii) extending their businesses into international markets; and (iii) expanding the visibility and sales of their products through new online sales channels. We have developed substantial expertise in online marketing and merchandising which we apply to help our clients increase traffic to their online stores, and improve order close ratios, average order sizes and repeat purchases, all of which result in higher revenues for our clients’ and Digital River.
 
We provide the technology and services required to establish, grow and support international sales, both for U.S-based clients seeking to reach customers overseas, and non-U.S.-based clients looking to access the U.S. and other markets. Our technology platform enables transactions to be completed in numerous currencies using a variety of payment methods. In addition, we provide localized online content and offer customer service in a variety of languages, extending our clients’ reach beyond their home markets.
 
Through our large online marketplace, which we call Digital River oneNetworktm (described in more detail in the section titled “Strategy”), we provide our clients access to new online sales channels which can help grow their online businesses. Clients can offer any part of their product catalogs to our network of online channel partners, including online retailers and affiliates. This increases the exposure these products receive and can result in higher sales volumes. Our channel partners benefit because we eliminate the need for each of them to manage hundreds of relationships with product developers while increasing the depth and breadth of products they can sell, all without requiring the management of physical product inventory.


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Deployment Speed
 
Businesses can reduce the time required to develop an e-commerce presence by utilizing our outsourced business model. Typically, a new client can have an online store live in a matter of weeks compared with months or longer if they decide to build, test and deploy the e-commerce capability in-house. Once they are operational on our platform, most clients can utilize our remote control toolset to make real-time changes to their online store, allowing them to address issues and take advantage of opportunities without technical assistance from Digital River.
 
Focus on Core Competency
 
By utilizing our outsourced e-commerce services, clients can focus on developing, marketing and selling their products rather than devoting time and resources to building and maintaining an e-commerce infrastructure. This allows client management time to focus on what they know best while ensuring they have access to the latest technologies, tools and expertise for running a successful e-commerce operation.
 
Benefits to Buyers
 
Our solution emphasizes convenience as it enables products to be purchased online at anytime from anywhere in the world via a connection to the Internet. In the case of software, PC games and other digital products, buyers can immediately download their purchase and, depending on file size, begin using it in a matter of minutes. Search technology allows shoppers to browse our entire catalog to find the products they are looking for quickly and easily. Our extended download service, which guarantees replacement of products accidentally destroyed through computer error or malfunction, and our 24/7 customer service provided on behalf of our clients, offer shoppers additional assurance that their e-commerce experience will be a positive one. Our CD2Go service gives buyers the ability to obtain, for a fee, a copy on CD of the product they have purchased and downloaded, providing additional assurances to buyers.
 
Strategy
 
Our objective is to be the global leader in outsourced e-commerce services for software and digital products developers, high-tech product manufacturers, computer and video games, and related online retailers. Our strategy for achieving this objective includes the following key components:
 
Attract New Clients and Expand Relationships with Existing Clients.  We have focused our efforts on securing new clients and expanding our relationships with existing clients primarily in the software, digital products, high-tech products, consumer electronics, and computer and video game markets. Our clients include software publishers, other digital content providers, high-tech product manufacturers, and online channel partners such as retailers. In 2007, we entered into more than 100 new contracts with new and existing clients.
 
We believe we can attract new clients and gain additional business with existing clients by expanding the range of services we offer. This includes services to enhance the e-commerce transaction as well as additional online marketing services. We believe that by expanding the size and breadth of the catalog of products we offer, we will attract additional online retailers and affiliates seeking to offer their customers a wide range of quality products. As of February 1, 2008, we were providing e-commerce services for thousands of software and digital products publishers, high-tech products manufacturers, online retailers and affiliates.
 
We believe we have amassed the largest catalog of digital software titles available anywhere online, which we offer to online retailers and affiliates. We generate revenue when web traffic is directed to a site for which we provide e-commerce services and a purchase transaction occurs. We will continue to expand the content available in our catalog, which we believe will make that catalog increasingly attractive to online retailers, affiliates and other online channel partners. We believe the Digital River oneNetwork is a unique marketplace and provides opportunities to grow our revenues and strengthen our relationships with clients and partners.


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Expand International Sales.  We believe there is a substantial opportunity to grow our business by enabling our clients to expand their sales through international online stores. Internet adoption and broadband deployment continue to increase rapidly, especially in the European and Asia Pacific regions. We have seen significant growth in sales for clients that have created international online stores. We intend to continue to enhance our technology platform, payment options and localized service offerings to increase sales in international markets.
 
Provide Clients with Strategic Marketing Services.  We proactively develop and deliver new products and services, called strategic marketing services that are designed to help our clients improve customer acquisition and retention and maximize the lifetime value of customers. These services currently include paid search advertising, search engine optimization, affiliate marketing, store optimization, and e-mail marketing and optimization. In general, we manage these programs for our clients and have achieved significant increases in client revenue, return-on-investment or both, compared to what clients experienced when running these programs and supporting technologies in-house. We intend to continue to develop and/or acquire new value-added strategic marketing services and technologies to create additional sources of revenue for our clients and for Digital River.
 
Maintain Technology Leadership.  We believe our technology platform and infrastructure afford us a competitive advantage in the market for outsourced e-commerce solutions. We intend to continue to invest in and enhance our platform to improve scalability, efficiency, reliability, security and performance as well as reduce costs. By leveraging our fixed cost structure, we can improve our ability to provide low-cost, high-value services while continuing to deploy the latest technologies. Additionally, we plan to continue investing in our infrastructure to enable our clients to further penetrate international markets, enhance their relationships with their customers, better manage the return-on-investment across all their online marketing activities, successfully adopt new selling models such as subscriptions, “software-as-a-service,” “try-before-you-buy” and volume licensing.
 
Continue to Seek Strategic Acquisitions.  Historically, we have been an active acquirer of businesses, and we expect to continue actively pursuing acquisitions that further our business strategy. Some of the strategic factors we consider when evaluating an acquisition opportunity include: expanding our base of clients, improving the breadth and depth of our product offering, improving the catalog of content, extending our strategic marketing and other services offerings, expanding our geographic reach and diversifying our revenue stream into complementary or adjacent market segments.
 
Expand the Digital River oneNetwork Marketplace.  We have developed a global marketplace we call Digital River oneNetwork which enables our clients to efficiently offer their products to a broad range of online retailers and affiliates. Affiliates are entities (individuals, organizations, companies, etc.) that generate online traffic to specific websites. On those websites, there are links, advertisements and other offers to sell various products and services. If a visitor clicks one of the links or advertisements and subsequently makes a purchase, the affiliate receives a commission in the form of a fixed fee or a percentage of the selling price of the product(s) purchased. Affiliates are an increasingly important source of website traffic as they can target specific types of Internet users.
 
Services
 
We provide a broad range of services to our clients, including design, development and hosting of online stores, merchandising, order management, fraud prevention screening, popular online payment methods, denied parties screening, tax compliance and management, digital and physical product fulfillment, multi-lingual customer service, subscription management, online marketing services including email marketing and paid search program management, and analytics and reporting. Most of these offerings can be managed through client-facing, remote control self-service tools that are easily used by business users without specialized training. Since clients utilize our centralized system and processes, we can consistently offer best practices across our entire client base.
 
Store Design, Development and Hosting.  We offer our clients website design services utilizing our experience and expertise to create efficient and effective online stores. Our e-commerce solutions can be


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deployed quickly and implemented in a variety of ways from fully-functioning shopping carts through completely merchandised online stores. The online stores we operate for our clients match their branding and website design to provide a seamless experience for shoppers. When a shopper navigates from a client’s website (operated by them) to their store (operated by us), the transition is seamless and the customer is unaware they are then being served by our technology platform. We manage the order process through payment processing, fraud screening, and fulfillment (either digital or physical) and notify the buyer via e-mail once the transaction is completed. Transaction information is captured and stored in our database systems, an increasingly valuable source of information used to create highly targeted merchandising programs, e-mail marketing campaigns, product offers and test marketing programs.
 
For many of our clients, the solution we provide is critical to their businesses and therefore we operate global data centers that perform and scale for continuous e-commerce operation in a high-demand environment. We operate multiple data centers globally, which feature fully redundant high-speed connections to the Internet, server capacity to handle unpredictable spikes in traffic and transactions, 24/7 security and monitoring, back-up electric generators and dedicated power supplies.
 
Store Merchandising.  Our technology platforms support a wide range of merchandising activities. This enables our clients to effectively execute promotions, up-sell, and cross-sell activities and to feature specific products and services during any phase of the shopping process. From the home page of our clients’ online stores through the checkout and “thank you” pages, our solution allows clients to deliver targeted offers designed to increase order close ratios and average order sizes.
 
Order Management and Fraud Screening.  We manage all phases of a shopper’s order on our clients’ e-commerce stores. We process payment transactions for orders placed through our technology platform and support a wide variety of payment types, including credit cards, wire transfers, purchase orders, money orders, direct debit cards and many other payment methods popular both in the United States and around the world. As part of the payment process, we ensure that the correct taxes are displayed, collected, remitted and reported.
 
The fraud screening component of our platform uses both rules-based and heuristic scoring methods which use observations of known fraudulent activities to make a determination regarding the validity of the order, buyer and payment information. As the order is entered, hundreds of data reviews can be processed in real time. We also provide denied-parties screening and export controls, which are designed to ensure that persons and/or organizations appearing on government denied-parties lists are blocked from making purchases through our system. Once a transaction is approved and the digital product has been delivered via download or the physical product(s) has been shipped, we submit the transaction for payment.
 
Digital and Physical Fulfillment Services.  We provide both digital and physical fulfillment services to our clients. We offer our clients a broad array of electronic delivery capabilities that enable delivery of digital products directly to customers’ computers via the Internet. Delivery is completed when a copy of the purchased digital product is made from a master generally stored on our technology platform and then securely downloaded to the purchaser. Optionally, buyers can, for an additional fee, request that a CD be created and shipped as a backup for their order.
 
In addition to electronic fulfillment via download, we offer physical distribution services to our clients as well. We have contracted with third-party fulfillment agents that maintain inventories of physical products for shipment to buyers. These products are held by the fulfillment agent on consignment from our clients. We provide notification of product shipment to the buyer as well as shipment tracking, order status, and inventory information. We also provide a service called “Physical on Demand” (POD), which utilizes robotic systems to create a client-branded product CD and packaging materials after a POD order has been placed. This eliminates the requirement for inventory to be stored in a warehouse as physical product is created only when needed. We provide extended download services for digital products for an additional fee, which enables buyers to download the products they have purchased more than once in the event of a computer failure or other unexpected problem. We believe physical fulfillment services are important to providing a complete e-commerce solution to our clients, particularly for non-digital products market where digital fulfillment is not possible.


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Customer Service.  At our client’s option and for an additional fee, we provide telephone and e-mail customer support for products sold through our platforms. We provide assistance to buyers regarding ordering and delivery questions on a 24/7 basis in multiple languages. We continue to invest in technology and infrastructure to provide fast and efficient responses to customer inquiries as well as provide online self-help options.
 
Advanced Reporting and Analytics.  We capture and store detailed information about visitor traffic, for sales in the online stores we manage for our clients. This information is stored in our database systems where it is available for analysis and reporting. We provide clients access to a large collection of standard and customizable reports as well as our web analytics technology. This enables our clients to track and analyze sales, products, transactions, customer behavior and the results of marketing campaigns so they can optimize their marketing efforts to increase traffic, order close ratios and average order values.
 
Strategic Marketing Services.  We offer a range of strategic marketing services designed to increase customer acquisition, improve customer retention and enhance the lifetime value of each customer. Through a combination of web analytics, analytics-based statistical testing, optimization and proven direct marketing practices, our team of strategic marketing experts develops, delivers and manages programs such as paid search advertising, search engine optimization, affiliate marketing, store optimization and e-mail optimization on behalf of our clients. We generally charge an incremental percentage of the selling price of merchandise for sales driven by our strategic marketing services activities. We believe our ability to capture and analyze integrated traffic and e-commerce sales data enhances the value of our strategic marketing services as we can precisely determine the effectiveness of specific marketing activities, website changes, and other actions taken by our clients.
 
Clients
 
We serve distinct groups of clients: (1) software, consumer electronics, and computer and video game product manufacturers; and (2) online channel partners including retailers and affiliates. We believe that the breadth of our catalog of products is a competitive advantage in selling e-commerce services to online channel partners as they can access a huge volume of products to sell without negotiating contract terms with every product provider. At the same time, we believe the breadth of our channel partner group is attractive to product developers and manufacturers as it gives them access to broad distribution through a single source.
 
Sales and Marketing
 
We sell products and services primarily to consumers through the Internet. We sell and market our services for clients through a direct sales force located in offices in the United States, Europe and Asia Pacific. These offices include staff dedicated to pre-sales, sales and sales support activities. Our client sales organization sells to executives within software companies, consumer electronics and high-tech product manufacturers, game manufacturers and online channel partners who are looking to create or expand their e-commerce businesses. During the sales process, our sales staff delivers demonstrations, presentations, collateral material, return-on-investment analyses, proposals and contracts.
 
We also design, implement and manage marketing and merchandising programs to help our clients drive traffic to their online stores and increase order close ratios, average order values and repeat purchases at those stores. Our strategic e-marketing team delivers a range of marketing and merchandising programs such as paid search advertising, search engine optimization, affiliate marketing, site and store optimization, e-mail marketing and optimization and site merchandising, which includes promotions, cross-sells and up-sells. This team combines their marketing domain expertise with our suite of technology, including reporting, analytics, optimization and e-mail to drive increased sales for our clients.
 
We market our products and services directly to clients and prospective clients. We focus our efforts on generating awareness of our brand and capabilities, establishing our position as a global leader in e-commerce outsourcing, generating leads in our target markets, and providing sales tools for our direct sales force. We conduct a variety of highly integrated marketing programs to achieve these objectives in an efficient and effective manner. We currently market our products and services to clients and prospects via direct marketing,


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print and electronic advertising, trade shows and events, public relations, media events and speaking engagements.
 
Technology
 
We deliver our outsourced e-commerce solutions on several platforms, each of which has been architected to solve our clients multi-faceted e-commerce needs. The following is a brief description of the technology standards utilized by the family of Digital River commerce platforms:
 
Architecture.  Our platforms are highly scalable and designed to handle tens of thousands of individual e-commerce stores and millions of products available for sale within those stores. These platforms consist of Digital River developed proprietary software applications running on multiple pods of Sun Microsystems and Dell servers that serve dynamic web pages using Oracle, SQL server and MySQL databases, .net Microsoft IIS and Oracle 9iAS application servers. We use Akamai, Limelight and Mirror Image’s worldwide caching technology to enable our platform engines to serve web pages with consistent load times around the world. Our platforms are designed to support growth by adding servers, CPUs, memory and bandwidth without substantial changes to the software applications. We believe this level of scalability is a competitive advantage. The application software is written in modular layers, enabling us to quickly respond to industry changes, payment processing changes, changes to international requirements for taxes and export screening, banking procedures, encryption technologies, and new and emerging web technologies, including AJAX, Web Services, DHTML, and web Caches.
 
The platforms include search capabilities that allow shoppers to search for items across millions of products and thousands of categories based on specific product characteristics or specifications while maintaining page response times acceptable to the user. We use database indexing combined with a dynamic cache system to provide flexibility and speed. The platforms have been designed to index, retrieve and manipulate all transaction data that flows through the system, including detailed commerce transactions and end-user interaction data. This enables us to create proprietary market profiles of each shopper and groups of shoppers that can then be used to create merchandising campaigns that are better targeted and more successful. We also use our platforms internally for fraud detection and prevention, management of physical shipping, return authorizations, backorder processing, transaction auditing and reporting.
 
E-Commerce System Maintenance.  Our platforms have a centralized maintenance management system that we use to build and manage our clients’ e-commerce systems. Changes that affect all of our clients’ e-commerce sites or groups of e-commerce sites can be made centrally, dramatically reducing maintenance time and complexity. Most of our clients’ e-commerce sites include a central store and many have additional web pages where highly targeted traffic is routed. Clients also may choose to link specific locations on their e-commerce stores to detailed product or category information within their stores to more effectively address a shopper’s specific areas of interest.
 
Security.  We have security systems in place to control access to our internal systems and commerce data. Log-ins and passwords are required for all systems with additional levels of log-in, password and Internet Protocol security in place to control access on an individual basis. Access only is granted to commerce areas for which an individual is responsible. Multiple levels of firewalls prevent unauthorized access from the outside or access to confidential data from the inside. Our security system does not allow direct access to any client or customer data. We license certain encryption and authentication technology from third parties to provide secure transmission of confidential information such as credit card data. The security system is designed not to interfere with the end-user’s experience on our clients’ e-commerce sites.
 
Data Center Operations.  Continuous data center operations are crucial to our success. We currently maintain major data center operations in eight facilities: California and Minnesota, USA; and Germany, Ireland and Sweden. All major data center locations are currently processing transactions and serving downloads.


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All data centers currently utilize multiple levels of redundant systems, including load balancers managing traffic volumes across web and application server farms, database servers, and enterprise disk storage arrays. For the majority of these systems, we have automatic failover procedures in place such that when a fault is detected, a process automatically takes that portion of the system offline and processing continues on the remaining redundant portions of the system, or in an alternate datacenter. In the event of an electrical power failure, we have redundant power generators and uninterruptible power supplies that protect our facilities. Fire suppression systems are present in each data center.
 
Our network software constantly monitors our clients’ e-commerce sites and internal system functions, and notifies systems engineers if any unexpected conditions arise. We lease multiple lines from diverse Internet service providers and maintain a policy of adding additional capacity if more than 40 percent of our capacity is consistently utilized. Accordingly, if one line fails, the other lines are able to assume the traffic load of the failed line. We also utilize content distribution networks operated by our vendors to serve appropriate types of traffic; currently, the majority of our image traffic and a substantial portion of our download traffic is served via the Akamai, Limelight and Mirror Image networks.
 
Product Research and Development
 
Our primary product research and development strategy is to continually enhance the technology and feature set of our commerce platforms and related technologies. To this end, we continually have numerous development projects in process, including ongoing enhancement of our commerce platforms, improvements in our remote control capabilities, enhanced international support, advanced product distribution capabilities, sophisticated reporting functionality and new marketing technologies. Product research and development expenses were $39.2 million, $32.3 million, and $20.7 million, in 2007, 2006, and 2005 respectively.
 
We believe that the functionality and capabilities of our commerce platforms are a competitive advantage and that we must continue to invest in them to maintain our competitive position. The Internet and e-commerce, in particular, are subject to rapid technological change, changes in user and client requirements and expectations, new technologies and evolving industry standards. To remain successful, we must continually adapt to these and other changes. We rely on internally developed, acquired and licensed technologies to maintain the technological sufficiency of our e-commerce platforms.
 
Competition
 
The market for e-commerce solutions is highly competitive. We compete with e-commerce solutions that our customers develop internally or contract with third parties to develop on their behalf. We also compete with other outsourced e-commerce providers. The competition we encounter includes:
 
  •  In-house development of e-commerce capabilities using tools or applications from companies such as Art Technology Group, Inc. and IBM Corporation;
 
  •  E-Commerce capabilities custom-developed by companies such as IBM Global Services and Accenture, Inc.;
 
  •  Other providers of outsourced e-commerce solutions, such as GSI Commerce, Inc. and asknet Inc.;
 
  •  Providers of technologies, services or products that support a portion of the e-commerce process, such as payment processing, including CyberSource Corporation and PayPal Corp.;
 
  •  Companies that offer various online marketing services, technologies and products, including ValueClick, Inc. and a Quantive, Inc.;
 
  •  High-traffic branded websites that generate a substantial portion of their revenue from e-commerce and may offer or provide to others the means to offer products for sale, such as Amazon.com, Inc.; and
 
  •  Web hosting, web services and infrastructure companies that offer portions of our solution and are seeking to expand the range of their offerings, such as Network Solutions, LLC, Akamai Technologies, Inc., Yahoo! Inc., eBay Inc. and Hostopia.com, Inc.


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We believe that the principal competitive factors in our market are the breadth of consumer products and services offered, the number of clients and online channel partnerships, brand recognition, system reliability and scalability, price, customer service, ease of use, speed to market, convenience, and quality of delivery. Some of the companies described above are clients or potential clients, but they may choose to compete with us by adopting a similar business model.
 
Intellectual Property
 
We believe the protection of our trademarks, copyrights, trade secrets and other intellectual property is critical to our success. We rely on patent, copyright and trademark enforcement, contractual restrictions, service mark and trade secret laws to protect our proprietary rights. We have entered into confidentiality and invention assignment agreements with our employees and contractors, and nondisclosure agreements with certain parties with whom we conduct business in order to limit access to and disclosure of our proprietary information. We also seek to protect our proprietary position by filing U.S. and foreign patent applications related to our proprietary technology, inventions and improvements that are important to our business. We currently have sixteen U.S patents issued with seven to sixteen years remaining prior to expiration. We also have over seventy U.S. and foreign patent applications pending. We pursue the registration of our trademarks and service marks in the U.S. and internationally. We have a number of registered trademarks in the U.S., European Union and other countries.
 
Employees
 
As of February 1, 2008, we employed 1265 associates. We also employ independent contractors and other temporary employees. None of our employees are represented by a labor union, and we consider our employee relations to be good. Competition for qualified personnel in our industry is intense. We believe that our future success will continue to depend, in part, on our continued ability to attract, hire and retain qualified personnel.
 
Executive Officers
 
The following table sets forth information regarding our executive officers at February 1, 2008:
 
             
Name
 
Age
 
Position
 
Joel A. Ronning
    51     Chief Executive Officer
Thomas M. Donnelly
    43     Chief Financial Officer
Kevin L. Crudden
    52     VP/General Counsel
 
Mr. Ronning founded Digital River in February 1994 and has been our Chief Executive Officer and a director since that time. From February 2001 through February 2004, Mr. Ronning also was a member of the Office of the President. From February 1994 to July 1998, Mr. Ronning served as President of Digital River. From May 1995 to December 1999, Mr. Ronning served as Chairman of the Board of Directors of Tech Squared, Inc., a direct catalog marketer of software and hardware products. From May 1995 to July 1998, Mr. Ronning served as Chief Executive Officer, Chief Financial Officer and Secretary of Tech Squared. From May 1995 to August 1996, Mr. Ronning also served as President of Tech Squared. Mr. Ronning founded MacUSA, Inc., formerly a wholly-owned subsidiary of Tech Squared, and served as a director of MacUSA, Inc. from April 1990 to December 1999. From April 1990 to July 1998, Mr. Ronning also served as the Chief Executive Officer of MacUSA, Inc.
 
Mr. Donnelly joined Digital River in February 2005 as Vice President of Finance and Treasurer and was named Chief Financial Officer and Secretary in July 2005. From March 1997 to May 2004, he held various positions, including President, Chief Operating Officer and Chief Financial Officer with Net Perceptions, Inc., a developer of software systems used to improve the effectiveness of various customer interaction systems. From March 1995 to March 1997, Mr. Donnelly served as a financial and management consultant in the capacity of chief financial officer or corporate controller for various public and private companies and partnerships. Prior to 1995, Mr. Donnelly served as an investment analyst for Marshall Financial Group, a merchant banking company, Chief Financial Officer of Medical Documentation Systems, Inc., a medical software company, and Controller of Staats International, Inc., a defense subcontractor.


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Mr. Crudden joined Digital River in January 2006 as Vice President and General Counsel. For more than five years prior to joining Digital River, Mr. Crudden was a partner in the law firm of Robins, Kaplan, Miller & Ciresi L.L.P., Minneapolis, Minnesota, practicing in the areas of corporate finance, mergers and acquisitions, and corporate governance.
 
ITEM 1A.   RISK FACTORS
 
The risks described below are not the only ones facing our company. Additional risks not presently known to us or that we currently deem immaterial also may impair our business operations. Our business, financial condition or results of operations could be materially adversely affected by any of these risks and the value of our common stock could decline due to any of these risks. This annual report also contains forward-looking statements that involve risks and uncertainties. Our actual results could differ materially from those anticipated in these forward-looking statements as a result of certain factors, including the risks faced by us described below and elsewhere in this report.
 
A loss of any client that accounts for a large portion of our revenue would cause our revenue to decline.
 
Sales of products for one software publisher client, Symantec Corporation, accounted for approximately 26.2% of our revenue in 2007. In addition, revenues derived from proprietary Digital River services sold to Symantec end-users and sales of Symantec products through our oneNetwork retail and affiliate channel together accounted for approximately 13.2% of total Digital River revenue. In addition, a limited number of other software and physical goods clients contribute a large portion of our annual revenue. Contracts with our clients are generally one or two years in length. If any one of these key contracts is not renewed or otherwise terminates, or if revenues from these clients decline for any other reason (such as competitive developments), our revenue would decline and our ability to sustain profitability would be impaired. If our contract with Symantec is not renewed or otherwise terminated, or if revenues from Symantec and Symantec-related services decline for any other reason, our revenue and our ability to sustain profitability could be materially adversely impaired. It is important to our ongoing success that we maintain our key client relationships and, at the same time, develop new client relationships.
 
Our future success cannot be predicted based upon our limited operating history.
 
Compared to certain of our current and potential competitors, we have a relatively short operating history. In addition, the nature of our business and the e-commerce industry in which we operate has undergone rapid development and change. Accordingly, it is difficult to predict whether we will be successful. Thus, our chances of financial and operational success should be evaluated in light of the risks, uncertainties, expenses, delays and difficulties associated with operating a business with limited history in a relatively rapidly changing industry. If we are unable to address these issues, we may not be financially or operationally successful.
 
Failure to properly manage and sustain our expansion efforts could strain our management and other resources.
 
Through acquisitions and organic growth, we are rapidly and significantly expanding our operations, both domestically and internationally. We will continue to expand further to pursue growth of our service offerings and customer base. This expansion increases the complexity of our business and places a significant strain on our management, operations, technical performance, financial resources, and internal financial control and reporting functions, and there can be no assurance that we will be able to manage it effectively. Our personnel, systems, procedures and controls may not be adequate to effectively manage our future operations, especially as we employ personnel in multiple domestic and international locations. We may not be able to hire, train, retain and manage the personnel required to address our growth. Failure to effectively manage our growth opportunities could damage our reputation, limit our future growth, negatively affect our operating results and harm our business.


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We intend to continue to expand our international operations and these efforts may not be successful in generating additional revenue.
 
We sell products and services to end-users outside the United States and we intend to continue expanding our international presence. In 2007, our sales to international consumers represented approximately 43.2% of our total sales. Expansion into international markets, particularly the European and Asia-Pacific regions, requires significant resources that we may fail to recover by generating additional revenue. Conducting business outside of the United States is subject to risks, including:
 
  •  Changes in regulatory requirements and tariffs;
 
  •  Uncertainty of application of local commercial, tax, privacy and other laws and regulations;
 
  •  Reduced protection of intellectual property rights;
 
  •  Difficulties in physical distribution for international sales;
 
  •  Higher incidences of credit card fraud and difficulties in accounts receivable collection;
 
  •  The burden and cost of complying with a variety of foreign laws, rules and regulations;
 
  •  The possibility of unionization of our workforce outside the United States, particularly in Europe;
 
  •  Political, social and economic instability;
 
  •  Import and export license requirements and restrictions of the United States and every other country in which we operate; and
 
  •  Political or economic constraints on international trade or instability.
 
Any of the factors described above may have a material adverse effect on our ability to increase or maintain foreign sales. These risks have grown with the acquisitions of Digital River GmbH, which has substantial operations outside the U.S. and with our expansion into the Asia-Pacific region. More recently, we acquired NetGiro Systems which is based in Stockholm, Sweden.
 
We may be unable to successfully and cost-effectively market, sell and distribute our services in foreign markets. This may be more difficult or take longer than anticipated especially due to international challenges, such as language barriers, currency exchange issues and the fact that the Internet infrastructure in foreign countries may be less advanced than the U.S. Internet infrastructure. If we are unable to successfully expand our international operations, or manage this expansion, our operating results and financial condition could be harmed. In addition, a significant portion of our cash and marketable securities are held in non-U.S. domiciled countries.
 
Our operating results are subject to fluctuations in demand for products and services offered by us or our clients.
 
Our quarterly and annual operating results are subject to fluctuations in demand for the products or services offered by us or our clients, such as anti-virus software and anti-spyware software. In particular, sales of anti-virus software represented a significant portion of our revenues in recent years, and continue to be very important to our business. Demand for anti-virus software is subject to the unpredictable introduction of significant computer viruses. To the extent that software publishers successfully introduce products or services not sold through our platform that are competitive with products and services sold by current Digital River clients (including anti-virus products and services), our revenues could be materially adversely affected.
 
New obligations to collect or pay transaction taxes could substantially increase the cost to us of doing business.
 
Currently, we collect sales, use, value added tax (VAT) or other similar transaction taxes with respect to electronic software download and physical delivery of products in tax jurisdictions where we believe we have taxable presences. The application of transaction taxes to interstate and international sales over the Internet is


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complex and evolving. We already are required to collect and remit VAT in the European Union, for example. Local, state or international jurisdictions may seek to impose transaction tax collection obligations on companies like ours that engage in e-commerce, and they may seek to impose taxes retroactively on past transactions that we believed were exempt from transaction tax liability. A successful assertion by one or more tax jurisdictions that we should collect or were obligated to collect transaction taxes on the products we sell could harm our results of operations.
 
We could be liable for fraudulent, improper or illegal uses of our platforms.
 
In recent years revenues from our ”remote control” platforms have grown as a percentage of our overall business, and we plan to continue to emphasize our self service e-commerce solutions. These platforms typically have an automated structure that allows customers to use our e-commerce services without significant participation from Digital River personnel. Despite our efforts to detect and contractually prohibit the sale of inappropriate and illegal goods and services, the remote control nature of these platforms makes it more likely that transactions involving the sale of unlawful goods or services or the violation of the proprietary rights of others may occur before we become aware of them. Furthermore, unscrupulous individuals may offer illegal products for sale via such platforms under innocuous names, further frustrating attempts to prevent inappropriate use of our services. Failure to detect inappropriate or illegal uses of our platforms by third parties could expose us to a number of risks, including fines, increased fees or termination of services by payment processors or credit card associations, risks of lawsuits, and civil and criminal penalties.
 
Loss of our credit card acceptance privileges would seriously hamper our ability to process the sale of merchandise.
 
The payment by end-users for the purchase of digital goods that we process is typically made by credit card or similar payment method. As a result, we must rely on banks or payment processors to process transactions, and must pay a fee for this service. From time to time, credit card associations may increase the interchange fees that they charge for each transaction using one of their cards. Any such increased fees will increase our operating costs and reduce our profit margins. We also are required by our processors to comply with credit card association operating rules, and we have agreed to reimburse our processors for any fines they are assessed by credit card associations as a result of processing payments for us. The credit card associations and their member banks set and interpret the credit card rules. Visa, MasterCard, American Express, Discover, or other card associations could adopt new operating rules or re-interpret existing rules that we or our processors might find difficult to follow. We have had payment processing agreements with certain of our payment processors terminated due to violations of their rules, and although we have been able to successfully migrate to new processors, such migrations require significant attention from our personnel, and often result in higher fees and customer dissatisfaction. Any disputes or problems associated with our payment processors could impair our ability to give customers the option of using credit cards to fund their payments. If we were unable to accept credit cards, our business would be seriously damaged. We also could be subject to fines or increased fees from MasterCard and Visa if we fail to detect that merchants are engaging in activities that are illegal or activities that are considered “high risk,” primarily the sale of certain types of digital content. We may be required to expend significant capital and other resources to monitor these activities.
 
Our failure to attract and retain software and digital products publishers, manufacturers, online retailers and online channel partners as clients would cause our revenue and operating profits to decline.
 
We generate revenue by providing outsourced services to a wide variety of companies, primarily in the software and high-tech products markets. If we cannot develop and maintain satisfactory relationships with software and digital products publishers, manufacturers, online retailers and online channel partners on acceptable commercial terms, we will likely experience a decline in revenue and operating profit. We also depend on our software and digital publisher clients creating and supporting software and digital products that end-users will purchase. If we are unable to obtain sufficient quantities of software and digital products for any reason, or if the quality of service provided by these software and digital products publishers falls below a satisfactory level, we could also experience a decline in revenue, operating profit and end-user satisfaction,


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and our reputation could be harmed. Our contracts with our software and digital products publisher clients are generally one to two years in duration, with an automatic renewal provision for additional one-year periods, unless we are provided with a written notice before the end of the contract. As is common in our industry, we have no material long-term or exclusive contracts or arrangements with any software or digital products publishers that guarantee the availability of software or digital products. Software and digital products publishers that currently supply software or digital products to us may not continue to do so and we may be unable to establish new relationships with software or digital product publishers to supplement or replace existing relationships.
 
The matters relating to the investigation by the Special Committee of the Board of Directors and the restatement of our consolidated financial statements may result in additional litigation and governmental enforcement actions.
 
In February 2007, we announced that an internal review had discovered irregularities related to the issuance of certain stock option grants primarily made between 1998 and 2002. As a result of the internal review, the Special Committee concluded, and the Audit Committee and Board of Directors agreed, that we used incorrect measurement dates for financial accounting purposes for certain stock option grants in prior periods. Therefore, we have recorded additional non-cash stock-based compensation expense and related tax effect with regard to certain past stock option grants, and we have restated previously filed financial statements in our Form 10-K for the year ended December 31, 2006. The full year adjustment to 2006 was recorded in the fourth quarter of 2006 due to its insignificance.
 
Activities related to our internal review of historical stock option practices have required us to incur substantial expenses for legal, accounting, tax and other professional services, have diverted management’s attention from our business, and could, in the future, harm our business, financial condition, results of operations and cash flows.
 
While we believe we have made appropriate judgments in determining the correct measurement dates for our stock option grants, the SEC may disagree with the manner in which we have accounted for and reported, or not reported, the financial impact. Accordingly, there is a risk we may have to further restate our prior financial statements, amend prior filings with the SEC, or take other actions not currently contemplated.
 
Our past stock option granting practices and the restatement of prior financial statements have exposed us to greater risks associated with litigation, regulatory proceedings and government enforcement actions. In December 2006, the SEC initiated an informal inquiry into our historical stock option practices. We have provided the results of our internal review together with supporting documentation to the SEC. We intend to continue to fully cooperate with the SEC’s inquiry. No assurance can be given regarding the outcomes from litigation, regulatory proceedings or government enforcement actions relating to our past stock option practices. The resolution of these matters could be time consuming, expensive, and may distract management from the conduct of our business. Furthermore, if we are subject to adverse findings in litigation, regulatory proceedings or government enforcement actions, we could be required to pay damages or penalties or have other remedies imposed, which could harm our business, financial condition, results of operations and cash flows.
 
We may incur additional expenses in order to assist our employees with potential income tax liabilities which may arise under Section 409A of the Internal Revenue Code.
 
As a result of our investigation into our historical stock option granting practices, we have determined that a number of our outstanding stock option awards were granted at exercise prices below the fair market value of our stock on the appropriate accounting measurement date. The primary adverse tax consequence is that the re-measured options vesting after December 31, 2005 are potentially subject to option holder excise tax under Section 409A of the Internal Revenue Code (and, as applicable, similar excise taxes under state law or foreign law). Our employees who have exercised or will exercise options which are determined to have been granted with exercise prices below the fair market value of the underlying shares of common stock on


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the appropriate measurement date and do not meet one of the exceptions under 409A may be subject to an increase in taxes imposed by 409A, penalties and interest.
 
Implementing our acquisition strategy could result in dilution and operating difficulties leading to a decline in revenue and operating profit.
 
A key element of our business strategy involves expansion through the acquisitions of businesses, assets, products or technologies that allow us to complement our existing product offerings, expand our market coverage, increase our engineering workforce or enhance our technological capabilities. Between January 1, 1999 and December 31, 2007, we acquired 27 companies. We continually evaluate and explore strategic opportunities as they arise, including business combination transactions, strategic partnerships, and the purchase or sale of assets, including tangible and intangible assets such as intellectual property. We have acquired, and intend to continue engaging in strategic acquisitions of businesses, technologies, services and products. Since December 2006, we have acquired three businesses, NetGiro Systems AB, DigitalSwift Corporation and CustomCD, Inc.
 
Acquisitions may require significant capital infusions, typically entail many risks, and could result in difficulties in assimilating and integrating the operations, personnel, technologies, products and information systems of acquired companies or businesses. We have in the past and may in the future experience delays in the timing and successful integration of an acquired company’s technologies and product development, unanticipated costs and expenditures, changing relationships with customers, suppliers and strategic partners, or contractual, intellectual property or employment issues. In addition, key personnel of an acquired company may decide not to work for us. The acquisition of another company or its products and technologies may also require us to enter into a geographic or business market in which we have little or no prior experience.
 
The process of integrating an acquired business, technology, service or product into our business and operations may result in unforeseen operating difficulties and expenditures. Integration of an acquired business also may disrupt our ongoing business, distract management and make it difficult to maintain standards, controls and procedures. These challenges are magnified as the size of the acquisition increases. Furthermore, these challenges would be even greater if we acquired a business or entered into a business combination transaction with a company that was larger and more difficult to integrate than the companies we have historically acquired. Moreover, the anticipated benefits of any acquisition may not be realized. If a significant number of clients of the acquired businesses cease doing business with us, we would experience lost revenue and operating profit, and any synergies from the acquisition may be lost. Future acquisitions could result in potentially dilutive issuances of equity securities, the incurrence of debt, contingent liabilities, amortization of intangible assets or impairment of goodwill.
 
We may need to raise additional capital to achieve our business objectives, which could result in dilution to existing investors or increase our debt obligations.
 
We require substantial working capital to fund our business. In January 2005, we filed a registration statement to increase our available shelf registration amount and we have $82 million available for future use. In addition, we filed an acquisition shelf for up to approximately 1.5 million shares. In February 2006, we filed a shelf registration that would allow us to sell an undetermined amount of equity or debt securities in accordance with the recently approved rules applying to “well-known seasoned issuers.” If additional funds are raised through the issuance of equity securities, the percentage ownership of our stockholders will be reduced and these equity securities may have rights, preferences or privileges senior to those of our common stock. In June 2004, we issued 1.25% convertible notes which require us to make interest payments and will require us to pay principal when the notes become due in 2024 or in the event of acceleration under certain circumstances, unless the notes are converted into our common stock prior to that. For a thirty day period ending January 1, 2009, the note holders have the right to have the debt redeemed at 100.25% of principal face amount. In light of current market conditions for interest rates and our stock price relative to the conversion price for the notes, it is likely that some of the note holders will seek repayment on January 1, 2009. We may not have sufficient capital to service this or any future debt securities that we may issue, further, the conversion of the notes into our common stock would result in further dilution to our stockholders.


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Our capital requirements depend on several factors, including the rate of market acceptance of our products, the ability to expand our client base, the growth of sales and marketing, and opportunities for acquisitions of other businesses. We have had significant operating losses and negative cash flow from operations since inception. Additional financing may not be available when needed, on terms favorable to us or at all. If adequate funds are not available or are not available on acceptable terms, we may be unable to develop or enhance our services, take advantage of future opportunities or respond to competitive pressures, which would harm our operating results and adversely affect our ability to sustain profitability.
 
Our operating results have fluctuated in the past and are likely to continue to do so, which could cause the price of our common stock to be volatile.
 
Our quarterly and annual operating results have fluctuated significantly in the past and are likely to continue to do so in the future due to a variety of factors, some of which are outside our control. As a result, we believe that quarter-to-quarter and year-to-year comparisons of our revenue and operating results are not necessarily meaningful, and that these comparisons may not be accurate indicators of future performance. If our annual or quarterly operating results fail to meet the guidance we provide to securities analysts and investors or otherwise fail to meet their expectations, the trading price of our common stock may be impacted. Some of the factors that have contributed or may contribute to fluctuations in our quarterly and annual operating results include:
 
  •  The addition of new clients or loss of current clients;
 
  •  The introduction by us of new websites, web stores or services that may require a substantial investment of our resources;
 
  •  The introduction by others of competitive websites, web stores or services or products;
 
  •  Our ability to continue to upgrade and develop our systems and infrastructure to meet emerging market needs and remain competitive in our service offerings;
 
  •  Economic conditions, particularly those affecting e-commerce;
 
  •  Client decisions to delay new product launches or to invest in e-commerce initiatives;
 
  •  The performance of our newly acquired assets or companies;
 
  •  Slower than anticipated growth of the online market as a vehicle for the purchase of software products;
 
  •  The cost of compliance with U.S. and foreign regulations relating to our business;
 
  •  Our ability to retain and attract personnel commensurate with our business needs; and
 
  •  Acquisitions.
 
In addition, revenue generated by our software and digital commerce services is likely to fluctuate on a seasonal basis that is typical for the software publishing market, consumer electronics, and computer and video games markets.
 
Our operating expenses are based on our expectations of future revenue. These expenses are relatively fixed in the short-term. If our revenue for a quarter falls below our expectations and we are unable to quickly reduce spending in response, our operating results for that quarter would be harmed. In addition, the operating results of companies in the electronic commerce industry have, in the past, experienced significant quarter-to-quarter fluctuations that may adversely affect our stock price.
 
Security breaches could hinder our ability to securely transmit confidential information.
 
A significant barrier to e-commerce and communications is the secure transmission of confidential information over public networks. Any compromise or elimination of our security could be costly to remedy, damage our reputation and expose us to liability, and dissuade existing and new clients from using our services. We rely on encryption and authentication technology licensed from third parties to provide the


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security and authentication necessary for secure transmission of confidential information, such as end-user credit card numbers. A party who circumvents our security measures could misappropriate proprietary information or interrupt our operations.
 
We may be required to expend significant capital and other resources to protect against security breaches or address problems caused by breaches. Concerns over the security of the Internet and other online transactions and the privacy of users could deter people from using the Internet to conduct transactions that involve transmitting confidential information, thereby inhibiting the growth of our business. To the extent that our activities or those of third-party contractors involve the storage and transmission of proprietary information, such as credit card numbers, security breaches could damage our reputation and expose us to a risk of loss, fines or litigation and possible liability. Our security measures may not prevent security breaches, and failure to prevent security breaches could lead to a loss of existing clients and also deter potential clients away from our services.
 
Claims of infringement of other parties’ intellectual property rights could require us to expend significant resources, enter into unfavorable licenses or require us to change our business plans.
 
From time to time, we are named as a defendant in lawsuits claiming that we have, in some way, violated the intellectual property rights of others. We have been notified of several potential patent disputes, and expect that we will increasingly be subject to patent infringement claims as our services expand in scope and complexity. Any assertions or prosecutions of claims like these could require us to expend significant financial and managerial resources. The defense of any claims, with or without merit, could be time-consuming, result in costly litigation and diversion of technical and management personnel, cause product enhancement delays or require that we develop non-infringing technology or enter into royalty or licensing agreements. Royalty or licensing agreements, if required, may be unavailable on terms acceptable to us or at all. In the event of a successful claim of infringement against us and our failure or inability to develop non-infringing technology or license the infringed or similar technology on a timely basis, we may be unable to pursue our current business plan. We expect that we will increasingly be subject to patent infringement claims as our services expand in scope and complexity, and our results of operations and financial condition could be materially adversely affected.
 
Claims against us related to the software products that we deliver electronically and the tangible goods that we deliver physically could require us to expend significant resources.
 
We may become more vulnerable to third party claims as laws such as the Digital Millennium Copyright Act, the Lanham Act and the Communications Decency Act are interpreted by the courts. Claims may be made against us for negligence, copyright or trademark infringement, products liability or other theories based on the nature and content of software products or tangible goods that we deliver electronically and physically. Because we did not create these products, we are generally not in a position to know the quality or nature of the content of these products. Although we carry general liability insurance and require that our customers indemnify us against end-user claims, our insurance and indemnification measures may not cover potential claims of this type, may not adequately cover all costs incurred in defense of potential claims, or may not reimburse us for all liability that may be imposed. Any costs or imposition of liability that are not covered by insurance or indemnification measures could be expensive and time-consuming to address, distract management and delay product deliveries, even if we are ultimately successful in the defense of these claims.
 
If our internal control over financial reporting or disclosure controls and procedures are not effective, there may be errors in our financial statements that could require a restatement or our filings may not be timely and investors may lose confidence in our reported financial information, which could lead to a decline in our stock price.
 
Section 404 of the Sarbanes-Oxley Act of 2002 requires us to evaluate the effectiveness of our internal control over financial reporting as of the end of each year, and to include a management report assessing the effectiveness of our internal control over financial reporting in each Annual Report on Form 10-K. Section 404


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also requires our independent registered public accounting firm to attest to, and report on, management’s assessment of our internal control over financial reporting.
 
Our management, including our Chief Executive Officer and Chief Financial Officer, does not expect that our internal control over financial reporting will prevent all error and all fraud. 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. Further, 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. Controls can be circumvented by the individual acts of some persons, by collusion of two or more people, or by management override of the controls. Over time, controls may become inadequate because changes in conditions or deterioration in the degree of compliance with policies or procedures may occur. Because of the inherent limitations in a cost-effective control system, misstatements due to error or fraud may occur and not be detected.
 
As a result, we cannot assure you that significant deficiencies or material weaknesses in our internal control over financial reporting will not be identified in the future. Any failure to maintain or implement required new or improved controls, or any difficulties we encounter in their implementation, could result in significant deficiencies or material weaknesses, cause us to fail to timely meet our periodic reporting obligations, or result in material misstatements in our financial statements. Any such failure could also adversely affect the results of periodic management evaluations and annual auditor attestation reports regarding disclosure controls and the effectiveness of our internal control over financial reporting required under Section 404 of the Sarbanes-Oxley Act of 2002 and the rules proclaimed after that. The existence of a material weakness could result in errors in our financial statements that could result in a restatement of financial statements, cause us to fail to timely meet our reporting obligations and cause investors to lose confidence in our reported financial information, leading to a decline in our stock price.
 
Because the e-commerce industry is highly competitive and has low barriers to entry, we may be unable to compete effectively.
 
The market for e-commerce solutions is extremely competitive and we may find ourselves unable to compete effectively. Because there are relatively low barriers to entry in the e-commerce market, we expect continued intense competition as current competitors expand their product offerings and new competitors enter the market. In addition, our clients may become competitors in the future. Increased competition is likely to result in price reductions, reduced margins, longer sales cycles and a decrease or loss of our market share, any of which could negatively impact our revenue and earnings. We face competition from the following sources:
 
  •  In-house development of e-commerce capabilities using tools or applications from companies, such as Art Technology Group, Inc. and IBM Corporation;
 
  •  E-Commerce capabilities custom-developed by companies, such as IBM Global Services and Accenture, Inc.;
 
  •  Other providers of outsourced e-commerce solutions, such as GSI Commerce, Inc., and asknet Inc.;
 
  •  Companies that provide technologies, services or products that support a portion of the e-commerce process, such as payment processing, including CyberSource Corporation and PayPal Corp.;
 
  •  Companies that offer various online marketing services, technologies and products, including ValueClick, Inc. and aQuantive, Inc.;
 
  •  High-traffic, branded websites that generate a substantial portion of their revenue from e-commerce and may offer or provide to others the means to offer their products for sale, such as Amazon.com, Inc.; and
 
  •  Web hosting, web services and infrastructure companies that offer portions of our solution and are seeking to expand the range of their offering, such as Network Solutions, LLC, Akamai Technologies, Inc., Yahoo!, Inc., eBay, Inc. and Hostopia.com, Inc.


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We believe that the principal competitive factors for a participant in our market are the breadth of products and services offered, proven global platforms, the number of clients and online channel partnerships a participant has, brand recognition, system reliability and scalability, price, customer service, ease of use, speed to market, convenience and quality of delivery. The online channel partners and the other companies described above may compete directly with us by adopting a similar business model. Moreover, while some of these companies also are clients or potential clients of ours, they may compete with our e-commerce outsourcing solution to the extent that they develop e-commerce systems or acquire such systems from other software vendors or service providers.
 
Many of our competitors have, and new potential competitors may have, more experience developing Internet-based software and e-commerce solutions, larger technical staffs, larger customer bases, more established distribution channels and customer relationships, greater brand recognition and greater financial, marketing and other resources than we have. In addition, competitors may be able to develop services that are superior to our services, achieve greater customer acceptance or have significantly improved functionality as compared to our existing and future products and services. Our competitors may be able to respond more quickly to technological developments and changes in customers’ needs. Our inability to compete successfully against current and future competitors could cause our revenue and earnings to decline.
 
Changes in government regulation could limit our Internet activities or result in additional costs of doing business over the Internet.
 
We are subject to the same international, federal, state and local laws as other companies conducting business over the Internet. Today, there are relatively few laws specifically directed towards conducting business over the Internet. The adoption or modification of laws related to the Internet could harm our business, operating results and financial condition by increasing our costs and administrative burdens. Due to the increasing popularity and use of the Internet, many laws and regulations relating to the Internet are being debated at the international, federal and state levels. These laws and regulations could cover issues such as:
 
  •  User privacy with respect to adults and minors;
 
  •  Our ability to collect and/or share necessary information that allows us to conduct business on the Internet;
 
  •  Export compliance;
 
  •  Pricing, taxation, and regulatory fees;
 
  •  Fraud;
 
  •  Advertising;
 
  •  Intellectual property rights;
 
  •  Information security;
 
  •  Quality of products and services;
 
  •  Taxes; and
 
  •  Recycling of consumer products.
 
Applicability to the Internet of existing laws governing issues, such as property ownership, copyrights and other intellectual property issues, taxation, libel, obscenity and personal privacy also could harm our operating results and substantially increase the cost to us of doing business. For example, numerous state legislatures have proposed that tax rules for Internet retailing and catalog sales correspond to enacted tax rules for sales from physical stores. Any requirement that we collect sales tax for each online purchase and remit the tax to the appropriate state authority would be a significant administrative burden to us, and would likely depress online sales. This and any other change in laws applicable to the Internet also might require significant management resources to respond appropriately. The vast majority of these laws was adopted prior to the advent of the Internet, and do not contemplate or address the unique issues raised thereby. Those laws that do


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reference the Internet, such as the Digital Millennium Copyright Act, are only beginning to be interpreted by the courts, and their applicability and reach are therefore uncertain.
 
Failure to develop our technology to accommodate increased traffic could reduce demand for our services and impair the growth of our business.
 
We periodically enhance and expand our technology and transaction-processing systems, network infrastructure and other technologies to accommodate increases in the volume of traffic on our technology platforms. Any inability to add software and hardware or to develop and upgrade existing technology, transaction-processing systems or network infrastructure to manage increased traffic on this platform may cause unanticipated systems disruptions, slower response times and degradation in client services, including impaired quality and speed of order fulfillment. Failure to manage increased traffic could harm our reputation and significantly reduce demand for our services, which would impair the growth of our business. We may be unable to improve and increase the capacity of our network infrastructure sufficiently or anticipate and react to expected increases in the use of the platform to handle increased volume. Further, additional network capacity may not be available from third-party suppliers when we need it. Our network and our suppliers’ networks may be unable to maintain an acceptable data transmission capability, especially if demands on the platform increase.
 
To remain competitive, we must continue to enhance and improve the responsiveness, functionality and features of our e-commerce platforms and the underlying network infrastructure. If we incur significant costs without adequate results, or are unable to adapt rapidly to technological changes, we may fail to achieve our business plan. The Internet and the e-commerce industry are characterized by rapid technological changes, changes in user and client requirements and preferences, frequent new product and service introductions embodying new technologies and the emergence of new industry standards and practices that could render our technology and systems obsolete. To be successful, we must adapt to rapid technological changes by licensing and internally developing leading technologies to enhance our existing services, developing new products, services and technologies that address the increasingly sophisticated and varied needs of our clients, and responding to technological advances and emerging industry standards and practices on a cost-effective and timely basis. The development of our proprietary technologies involves significant technical and business risks. We may fail to use new technologies effectively or fail to adapt our proprietary technology and systems to client requirements or emerging industry standards.
 
System failures could reduce the attractiveness of our service offerings.
 
We provide commerce, marketing and delivery services to our clients and end-users through our proprietary technology transaction processing and client management systems. These systems also maintain an electronic inventory of products and gather consumer marketing information. The satisfactory performance, reliability and availability of the technology and the underlying network infrastructure are critical to our operations, level of client service, reputation and ability to attract and retain clients. We have experienced periodic interruptions, affecting all or a portion of our systems, which we believe will continue to occur from time-to-time. Any systems damage or interruption that impairs our ability to accept and fill client orders could result in an immediate loss of revenue to us, and could cause some clients to purchase services offered by our competitors. In addition, frequent systems failures could harm our reputation.
 
Although we maintain system redundancies in multiple physical locations, our systems and operations are vulnerable to damage or interruption from:
 
  •  Fire, flood and other natural disasters;
 
  •  Operator negligence, improper operation by, or supervision of, employees, physical and electronic break-ins, misappropriation, computer viruses and similar events; and
 
  •  Power loss, computer systems failures, and Internet and telecommunications failure.
 
We may not carry sufficient business interruption insurance to fully compensate us for losses that may occur.


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We may become liable to clients who are dissatisfied with our services.
 
We design, develop, implement and manage e-commerce solutions that are crucial to the operation of our clients’ businesses. Defects in the solutions we develop could result in delayed or lost revenue, adverse end-user reaction, and/or negative publicity, which could require expensive corrections. As a result, clients who experience these adverse consequences either directly or indirectly by using our services could bring claims against us for substantial damages. Any claims asserted could exceed the level of any insurance coverage that may be available to us. The successful assertion of one or more large claims that are uninsured, that exceed insurance coverage or that result in changes to insurance policies, including future premium increases, could adversely affect our operating results or financial condition.
 
We depend on key personnel.
 
Our future success significantly depends on the continued services and performance of our senior management. Our performance also depends on our ability to retain and motivate our key technical employees who are skilled in maintaining our proprietary technology platforms. The loss of the services of any of our executive officers or key employees could harm our business if we are unable to effectively replace that officer or employee, or if that person should decide to join a competitor or otherwise directly or indirectly compete with us. Further, we may need to incur additional operating expenses and divert other management time in order to search for a replacement.
 
Our future success depends on our ability to continue to identify, attract, hire, train, retain and motivate highly skilled personnel. Competition for these personnel is intense, particularly in the Internet industry. We may be unable to successfully attract, assimilate or retain sufficiently qualified personnel. In making employment decisions, particularly in the Internet and high-technology industries, job candidates often consider the value of stock option grants they are to receive in connection with their employment.
 
Protecting our intellectual property is critical to our success.
 
We regard the protection of our trademarks, copyrights, trade secrets and other intellectual property as critical to our success. We rely on a combination of patent, copyright, trademark, service mark and trade secret laws and contractual restrictions to protect our proprietary rights. We have entered into confidentiality and invention assignment agreements with our employees and contractors, and nondisclosure agreements with parties with whom we conduct business, in order to limit access to and disclosure of our proprietary information. These contractual arrangements and the other steps taken by us to protect our intellectual property may not prevent misappropriation of our technology or deter independent third-party development of similar technologies. We also seek to protect our proprietary position by filing U.S. patent applications related to our proprietary technology, inventions and improvements that are important to the development of our business. Proprietary rights relating to our technologies will be protected from unauthorized use by third parties only to the extent they are covered by valid and enforceable patents or are effectively maintained as trade secrets. We pursue the registration of our trademarks and service marks in the U.S. and internationally. Effective trademark, service mark, copyright and trade secret protection may not be available in every country in which our services are made available online.
 
The steps we have taken to protect our proprietary rights may be inadequate and third parties may infringe or misappropriate our trade secrets, trademarks and similar proprietary rights. Any significant failure on our part to protect our intellectual property could make it easier for our competitors to offer similar services and thereby adversely affect our market opportunities. In addition, litigation may be necessary in the future to enforce our intellectual property rights, to protect our trade secrets or to determine the validity and scope of the proprietary rights of others. Litigation could result in substantial costs and diversion of management and technical resources.


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Our clients’ sales cycles are lengthy, which may cause us to incur substantial expenses and expend management time without generating corresponding consumer revenue, which would impair our cash flow.
 
We market our services directly to software publishers, online retailers and other prospective customers outside of the software industry. These relationships are typically complex and take time to finalize. Due to operating procedures in many organizations, a significant amount of time may pass between selection of our products and services by key decision-makers and the signing of a contract. The period between the initial client sales call and the signing of a contract with significant sales potential is difficult to predict and typically ranges from six to twelve months. If at the end of a sales effort a prospective client does not purchase our products or services, we may have incurred substantial expenses and expended management time that cannot be recovered and that will not generate corresponding revenue. As a result, our cash flow and our ability to fund expenditures incurred during the sales cycle may be impaired. We can incur substantial front-end cost to launch client sites and it may require a substantial time before those costs are recouped by us.
 
The listing of our network addresses on anti-spam lists could harm our ability to service our clients and deliver goods over the Internet.
 
Certain privacy and anti-email proponents have engaged in a practice of gathering, and publicly listing, network addresses that they believe have been involved in sending unwanted, unsolicited emails commonly known as spam. In response to user complaints about spam, Internet service providers have, from time to time, blocked such network addresses from sending emails to their users. If our network addresses mistakenly end up on these spam lists, our ability to provide services for our clients and consummate the sales of digital and physical goods over the Internet could be harmed.
 
We are subject to regulations relating to consumer privacy.
 
We collect and maintain end-user data for our clients, which subjects us to increasing international, federal and state regulations related to online privacy and the use of personal user information. Congress has enacted anti-SPAM legislation with which we must comply when providing email campaigns for our clients. Legislation and regulations are pending in various domestic and international governmental bodies that address online privacy protections. Several governments have proposed, and some have enacted, legislation that would limit the use of personal user information or require online services to establish privacy policies. In addition, the U.S. Federal Trade Commission, or FTC, has urged Congress to adopt legislation regarding the collection and use of personal identifying information obtained from individuals when accessing websites. In the past, the emphasis has been on information obtained from minors. Focus has now shifted to include online privacy protection for minors and adults.
 
Even in the absence of laws requiring companies to establish these procedures, the FTC has settled several proceedings resulting in consent decrees in which Internet companies have been required to establish programs regarding the manner in which personal information is collected from users and provided to third parties. We could become a party to a similar enforcement proceeding. These regulatory and enforcement efforts could limit our collection of and/or ability to share with our clients demographic and personal information from end-users, which could adversely affect our ability to comprehensively serve our clients.
 
The European Union has adopted a privacy directive that regulates the collection and use of information that identifies an individual person. These regulations may inhibit or prohibit the collection and sharing of personal information in ways that could harm our clients or us. The globalization of Internet commerce may be harmed by these and similar regulations because the European Union privacy directive prohibits transmission of personal information outside the European Union. The United States and the European Union have negotiated an agreement providing a “safe harbor” for those companies who agree to comply with the principles set forth by the U.S. Department of Commerce and agreed to by the European Union. Failure to comply with these principles may result in fines, private lawsuits and enforcement actions. These enforcement actions can include interruption or shutdown of operations relating to the collection and sharing of information pertaining to citizens of the European Union.


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Compliance with future laws imposed on e-commerce may substantially increase our costs of doing business or otherwise adversely affect our ability to offer our services.
 
Because our services are accessible worldwide, and we facilitate sales of products to end-users worldwide, international jurisdictions may claim that we are required to comply with their laws. Laws regulating Internet companies outside of the United States may be less favorable than those in the United States, giving greater rights to consumers, content owners and users. Compliance may be more costly or may require us to change our business practices or restrict our service offerings relative to those provided in the United States. Any failure to comply with foreign laws could subject us to penalties ranging from fines to bans on our ability to offer our services.
 
As our services are available over the Internet in multiple states and foreign countries, these jurisdictions may claim that we are required to qualify to do business as a foreign corporation in each state or foreign country. We and/or our subsidiaries are qualified to do business only in certain states. Failure to qualify as a foreign corporation in a required jurisdiction could subject us to taxes and penalties and could result in our inability to enforce contracts in these jurisdictions.
 
In addition, we are subject to United States laws governing the conduct of business with other countries, such as export control laws, which prohibit or restrict the export of goods, services and technology to designated countries, denied persons or denied entities from the United States. Violation of these laws could result in fines or other actions by regulatory agencies and result in increased costs of doing business and reduced profits. In addition, any significant changes in these laws, particularly an expansion in export control laws, will increase our costs of compliance and may further restrict our overseas client base.
 
We are exposed to foreign currency exchange risk.
 
Sales outside the United States accounted for approximately 43.2% of our total sales in 2007. The results of operations of, and certain of our intercompany balances associated with, our internationally focused websites are exposed to foreign exchange rate fluctuations. Upon translation, net sales and other operating results from our international operations may differ materially from expectations, and we may record significant gains or losses on the remeasurement of intercompany balances. If the U.S. dollar weakens against foreign currencies, the translation of these foreign-currency-denominated transactions will result in increased net revenues and operating expenses. Similarly, our net revenues and operating expenses will decrease if the U.S. dollar strengthens against foreign currencies. As we have expanded our international operations, our exposure to exchange rate fluctuations has become more pronounced. We may enter into short-term currency forward contracts to offset the foreign exchange gains and losses generated by the re-measurement of certain assets and liabilities recorded in non-functional currencies. The use of such hedging activities may not offset more than a portion of the adverse financial impact resulting from unfavorable movements in foreign exchange rates. See Item 7A of Part II, for information demonstrating the effect on our consolidated statements of income from changes in exchange rates versus the U.S. dollar.
 
Changes in our tax rates could affect our future results.
 
Our future effective tax rates could be favorably or unfavorably affected by changes in the mix of earnings in countries with differing statutory tax rates, changes in the valuation of our deferred tax assets and liabilities, or by changes in tax laws or their interpretation. In addition, we are subject to the continuous examination of our income tax returns by the Internal Revenue Service and other tax authorities. We regularly assess the likelihood of adverse outcomes resulting from these examinations to determine the adequacy of our provision for income taxes. There can be no assurance that the outcomes from these continuous examinations will not have an adverse effect on our results of operations and financial condition.
 
Developments in accounting standards may cause us to increase our recorded expenses, which in turn would jeopardize our ability to demonstrate sustained profitability.
 
In January 2002, we adopted Statement of Financial Accounting Standard No. 142, “Goodwill and Other Intangible Assets” (SFAS No. 142). The statement generally establishes that goodwill and intangible assets


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with indefinite lives are not amortized, but are to be tested on an annual basis for impairment and, if impaired, are recorded as an impairment charge in income from operations. As of December 31, 2007, we had goodwill with an indefinite life of $261.9 million from our acquisitions. If our goodwill is determined for any reason to be impaired, the subsequent accounting of the impaired portion as an expense would lower our earnings and jeopardize our ability to demonstrate sustained profitability. On January 1, 2006, we adopted SFAS 123(R) which requires the measurement and recognition of compensation expense for all stock-based compensation based on estimated fair values. Our operating results for 2007 contain, and our operating results for future periods will contain, a charge for stock-based compensation related to stock options, restricted stock grants and employee stock purchases.
 
Internet-related stock prices are especially volatile and this volatility may cause our stock price to fluctuate significantly.
 
The stock market and the trading prices of Internet-related companies in particular, have been notably volatile. This volatility is likely to continue and is not necessarily related to the operating performance of affected companies. This broad market and industry volatility could significantly reduce the price of our common stock at any time, without regard to our operating performance. Factors that could cause our stock price in particular to fluctuate include, but are not limited to:
 
  •  Actual or anticipated variations in quarterly operating results;
 
  •  Announcements of technological innovations;
 
  •  The ability to sign new clients and the retention of existing clients;
 
  •  Loss of key clients;
 
  •  New products or services that we offer;
 
  •  Competitive developments, including new products or services, or new relationships by our competitors;
 
  •  Changes that affect our clients or the viability of their product lines;
 
  •  Changes in financial estimates by securities analysts;
 
  •  Conditions or trends in the Internet and online commerce industries;
 
  •  Global unrest and terrorist activities;
 
  •  Changes in the economic performance and/or market valuations of other Internet or online e-commerce companies;
 
  •  Required changes in generally accepted accounting principles and disclosures;
 
  •  Our announcement of significant acquisitions, strategic partnerships, joint ventures or capital commitments or results of operations or other developments related to those acquisitions;
 
  •  Additions or departures of key personnel; and
 
  •  Sales or other transactions involving our common stock or our convertible notes.
 
In addition, our stock price may be impacted by the short sales and actions of other parties who may disseminate misleading information about us in an effort to profit from fluctuations in our stock price.
 
Provisions of our charter documents, other agreements and Delaware law may inhibit potential acquisition bids for us.
 
Certain provisions of our amended and restated certificate of incorporation, bylaws, other agreements and Delaware law could make it more difficult for a third party to acquire us, even if a change in control would be beneficial to our stockholders.


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The investment of our substantial cash balance and our investments in marketable debt securities are subject to risks which may cause losses and affect the liquidity of these investments.
 
At January 31, 2008, we held approximately $117.5 million of municipal debt, classified as current assets, with an auction reset feature (“auction rate securities”) whose underlying assets are generally student loans which are FFELP (Federal Family Education Loan Program) back, over-collateralized, insured and backed by the Department of Education. In February 2008 auctions failed for $40.0 million of our auction rate securities and there is no assurance that currently successful auctions on the other auction rate securities in our investment portfolio will continue to succeed and as a result our ability to liquidate our investment and fully recover the carrying value of our investment in the near term may be limited or not exist. A failed auction will occur if there is more selling than buying in a given auction. All of our auction rate securities, including those subject to the failure, are currently rated AAA, the highest rating, by a rating agency. If the issuers are unable to successfully close future auctions and their credit ratings deteriorate, we may in the future be required to record an impairment charge on these investments. We believe we will be able to liquidate our investment without significant loss within the next year, and we currently believe these securities are not significantly impaired, primarily due to the government guarantee of the underlying securities; however, it could take until the final maturity of the underlying notes (up to 30 years) to realize our investments’ recorded value. Based on our expected operating cash flows, and our other sources of cash, we do not anticipate the potential lack of liquidity on these investments will affect our ability to execute our current business plan.
 
ITEM 1B.   UNRESOLVED STAFF COMMENTS
 
None.
 
ITEM 2.   PROPERTIES
 
The following table summarizes the various facilities that we lease for our business operations:
 
                 
        Square
     
Description of Use
 
Primary Locations
  Footage(1)    
Lease Expirations
 
Corporate Office Facilities
  Minnesota     162,500     From 2008 to 2011
Other U.S. Office Facilities
  California, Colorado, Illinois, Nebraska, Ohio, Pennsylvania, Utah     57,117     From 2008 to 2011
Non-U.S. Office Facilities
  China, Germany, Ireland, Japan, Korea, Luxembourg, Sweden, Taiwan, United Kingdom     68,363     From 2008 to 2026
Off Site U.S. Data Centers
  California, Minnesota     693     2008
Off Site non U.S. Data Centers
  Germany, Ireland, Sweden     378     2008
 
 
(1) Includes sub-leased space.
 
We believe our properties are suitable and adequate for our present needs We periodically evaluate whether additional facilities are necessary.
 
ITEM 3.   LEGAL PROCEEDINGS
 
DDR Holdings, LLC has brought a claim against us and several other defendants regarding US Patents No. 6,629,135 and 6,993,572, which are owned by DDR Holdings. These patents claim e-commerce outsourcing systems and methods relating to the provision of outsourced e-commerce support pages having a common look and feel with a host’s website. The case was filed in the U.S. District Court for the Eastern District of Texas on January 31, 2006. The complaint seeks injunctive relief, declaratory relief, damages and attorneys’ fees. We have denied infringement of any valid claim of the patents-in-suit, and have asserted counter-claims which seek a judicial declaration that the patents are invalid and not infringed. In September 2006, DDR Holdings filed an application for reexamination of its patents based upon the prior art produced by us and the other defendants in the case. As part of that application, DDR Holdings asserted that this prior art raised a substantial question as to the patentability of the inventions claimed in the patents. In December 2006,


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the Court stayed the litigation pending a decision on the reexamination application. In February 2007, the US Patent and Trademark Office ordered reexamination of DDR’s patents. We intend to vigorously defend ourselves in this matter.
 
NetRatings, Inc. has brought a claim against us regarding US Patents Nos. 5,675,510, 6,115,680, 6,108,637, 6,138,155 and 6,763,386, which are owned by NetRatings. These patents claim web analytic and reporting systems. The case was filed in the U.S. District Court for the District of Minnesota on October 5, 2006. The complaint seeks injunctive relief, declaratory relief, damages and attorney’s fees. We have denied the allegations of infringement. Discovery in this matter is ongoing. In December 2007, the parties submitted briefs to the Court in connection with the Markman claim construction. No trial date is currently set for this case. We intend to continue our vigorous defense of this matter.
 
In December 2006, we announced that we had received an informal inquiry from the SEC relating to our historical stock option grant practices. We have cooperated with the SEC regarding this matter and intend to continue to do so.
 
We are subject to legal proceedings, claims and litigation arising in the ordinary course of business. While the final outcome of these matters is currently not determinable, we believe there is no litigation pending against us that is likely to have, individually or in the aggregate, a material adverse effect on our consolidated financial position, results of operations or cash flows. Because of the uncertainty inherent in litigation, it is possible that unfavorable resolutions of these lawsuits, proceedings and claims could exceed the amount we have currently reserved for these matters.
 
Third parties have from time-to-time claimed, and others may claim in the future, that we have infringed their intellectual property rights. We have been notified of several potential patent disputes, and expect that we will increasingly be subject to patent infringement claims as our services expand in scope and complexity. We have in the past been forced to litigate such claims. We also may become more vulnerable to third-party claims as laws, such as the Digital Millennium Copyright Act, the Lanham Act and the Communications Decency Act are interpreted by the courts and as we expand geographically into jurisdictions where the underlying laws with respect to the potential liability of online intermediaries like ourselves are either unclear or less favorable. These claims, whether meritorious or not, could be time-consuming and costly to resolve, cause service upgrade delays, require expensive changes in our methods of doing business, or could require us to enter into costly royalty or licensing agreements.
 
ITEM 4.   SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
 
None.


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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 is traded on NASDAQ Global Select Market under the symbol “DRIV.” The following table sets forth, for the periods indicated, the high and low sale price per share of our common stock on that market. These over-the-counter market quotations reflect inter-dealer prices, without retail mark-up, markdown or commission, and may not necessarily represent actual transactions.
 
                 
    High     Low  
 
2006
               
First Quarter
  $ 46.08     $ 29.27  
Second Quarter
  $ 48.00     $ 37.00  
Third Quarter
  $ 53.21     $ 37.90  
Fourth Quarter
  $ 60.99     $ 48.20  
2007
               
First Quarter
  $ 58.67     $ 47.80  
Second Quarter
  $ 60.30     $ 43.70  
Third Quarter
  $ 49.71     $ 41.71  
Fourth Quarter
  $ 53.52     $ 32.38  
 
Holders
 
As of February 1, 2008, there were approximately 350 holders of record of our common stock. On February 1, 2008, the last sale price reported on The NASDAQ Stock Market for our common stock was $30.68 per share.
 
Dividend Policy
 
We have never declared or paid any cash dividends on our capital stock. We intend to retain any future earnings to support operations and to finance the growth and development of our business and do not anticipate paying cash dividends for the foreseeable future.
 
Issuer Purchases of Equity Securities
 
In June 2007, the Board of Directors authorized a new share repurchase program of up to $200.0 million of our outstanding shares of common stock. This new program supersedes and replaces the $50.0 million share repurchase program adopted in 2005. Under the new program, the shares may be repurchased in the open market or in privately negotiated transactions. Repurchases are at our discretion based on ongoing assessments of the capital needs of the business, the market price of our common stock and general market conditions. No time limit was set for the completion of the repurchase program. We did not repurchase any of our common stock during the three months ended December 31, 2007. During 2007, we repurchased 1,372,185 shares for $63.0 million. None of the repurchased shares have been retired.
 
Securities Authorized for Issuance under Equity Compensation Plans
 
The information required in the table of Securities Authorized for Issuance under Equity Compensation Plans is incorporated by reference to our Proxy Statement in connection with our 2008 Annual Meeting to be filed in accordance with Regulation 14A under the Securities Exchange Act of 1934, as amended.


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Securities Performance Measurement Comparison1
 
The SEC requires a comparison on an indexed basis of cumulative total stockholder return for the Company, a relevant broad equity market index and a published industry line-of-business index. The following graph shows a total stockholder return of an investment of $100 in cash on December 31, 2002 for (i) the Company’s Common Stock; (ii) the CRSP Total Return Index for the Nasdaq Stock Market (U.S. companies) (the “Nasdaq Composite Index”); and (iii) the RDG Technology Composite Index. The RDG Technology Composite Index is composed of approximately 500 technology companies in the semiconductor, electronics, medical and related technology industries. Historic stock price performance is not necessarily indicative of future stock price performance. All values assume reinvestment of the full amount of all dividends.
 
COMPARISON OF 5 YEAR CUMULATIVE TOTAL RETURN*
Among Digital River, Inc., The NASDAQ Composite Index
And The RDG Technology Composite Index
 
PERFORMANCE GRAPH
 
 
* $100 invested on 12/31/02 in stock or index-including reinvestment of dividends.
Fiscal year ending December 31.
 
 
1 This Section is not “soliciting material,” is not deemed “filed” with the SEC and is not to be incorporated by reference in any filing of the Company under the Securities Act or the Exchange Act whether made before or after the date hereof and irrespective of any general incorporation language in any such filing.


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ITEM 6.   SELECTED FINANCIAL DATA
 
The information set forth below is not necessarily indicative of results of future operations, and should be read in conjunction with Item 7, “Management’s Discussion and Analysis-Financial Condition and Results of Operations” and the consolidated financial statements and related notes thereto included in Item 8 of this Form 10-K to fully understand factors that may affect the comparability of the information presented below.
 
The financial information that has been previously filed or otherwise reported for these periods is superseded by the information in this Annual Report on Form 10-K, and the financial statements and related financial information contained in previously-filed reports should no longer be relied upon.
 
                                         
    December 31,
    2007   2006   2005   2004   2003
    (In thousands)
 
Balance Sheet Data:
                                       
Cash and cash equivalents
  $ 381,788     $ 390,243     $ 131,770     $ 127,734     $ 72,885  
Short-term investments
    315,636       235,699       220,569       164,402       59,037  
Working capital
    529,712       497,887       244,647       198,747       85,011  
Total assets
    1,127,744       1,006,263       669,549       504,521       189,658  
Long-term obligations
    206,362       196,345       195,022       195,000        
Retained earnings/ (accumulated deficit)
    68,413       44,989       (15,627 )     (62,636 )     (97,143 )
Total stockholders’ equity
  $ 676,280     $ 603,759     $ 305,551     $ 192,769     $ 131,852  
 
                                         
    Year Ended December 31,  
    2007     2006     2005     2004     2003  
    (In thousands, except per share data)  
 
Statement of Income Data:
                                       
Revenue
  $ 349,275     $ 307,632     $ 220,408     $ 154,130     $ 101,201  
Costs and expenses (exclusive of depreciation and amortization expense shown separately below)
                                       
Direct cost of services
    10,243       7,709       5,063       5,167       3,857  
Network and infrastructure
    32,309       29,250       19,817       15,164       12,295  
Sales and marketing
    134,401       113,462       69,371       52,083       37,685  
Product research and development
    39,179       32,341       20,690       14,293       10,263  
General and administrative
    38,937       34,158       21,484       17,006       9,389  
Depreciation and amortization
    12,706       10,983       8,833       8,203       7,275  
Amortization of acquisition related intangibles
    7,586       12,134       8,730       8,269       5,380  
                                         
Total costs and expenses
    275,361       240,037       153,988       120,185       86,144  
                                         
Income from operations
    73,914       67,595       66,420       33,945       15,057  
                                         
Interest Income
    32,167       22,836       9,668       3,166       819  
Other income (expense), net
    (3,006 )     (949 )     (4,701 )     (1,525 )     19  
                                         
Income before income tax expense
    103,075       89,482       71,387       35,586       15,895  
Income tax expense
    32,261       28,672       14,875       1,079        
                                         
Net income
  $ 70,814     $ 60,810     $ 56,512     $ 34,507     $ 15,895  
                                         
Net income per share — basic
  $ 1.75     $ 1.58     $ 1.64     $ 1.07     $ 0.54  
                                         
Net income per share — diluted
  $ 1.58     $ 1.40     $ 1.41     $ 0.94     $ 0.48  
                                         
Shares used in per-share calculation — basic
    40,444       38,593       34,536       32,328       29,398  
                                         
Shares used in per-share calculation — diluted
    45,914       44,642       41,448       38,532       33,051  
                                         


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ITEM 7.   MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATION
 
The discussion in this Annual Report contains forward-looking statements that involve risks and uncertainties. Our actual results could differ materially from those discussed below. Additional factors that could cause or contribute to such differences include, but are not limited to, those identified below, and those discussed in the section entitled “Risk Factors,” included elsewhere in this Annual Report. When used in this document, the words “believes,” “expects,” “anticipates,” “intends,” “plans,” and similar expressions, are intended to identify certain of these forward-looking statements. However, these words are not the exclusive means of identifying such statements. In addition, any statements that refer to expectations, projections or other characterizations of future events or circumstances are forward-looking statements. The cautionary statements made in this document should be read as being applicable to all related forward-looking statements wherever they appear in this document.
 
Overview
 
We provide outsourced e-commerce solutions globally to a wide variety of companies primarily in the software and high-tech products, consumer electronics, and computer and video games markets. We offer our clients a broad range of services that enable them to effectively build, manage, and grow online sales on a global basis. We focus on helping our clients mitigate risk and grow their revenues. Our services include online store design, development, hosting, store merchandising and optimization, order management, subscription management, fraud prevention screening, export controls and management, tax management, digital product delivery via download, physical product fulfillment, multi-lingual customer service, e-mail marketing, website optimization, web analytics and reporting.
 
Acquisitions and Comparability of Results
 
We acquired SWReg in March 2005, Commerce5, Inc. (now DR globalTech, Inc.) in December 2005, Direct Response Technologies, Inc. (now DR Marketing Solutions, Inc.) in January 2006, MindVision, Inc. in June 2006 and NetGiro Systems AB in September 2007. The results of these acquisitions must be factored into any comparison of our 2007 results to the results for 2006 or 2005. See Note 4 of our consolidated financial statements for the year ended December 31, 2007, for pro forma financial information as if these entities had been acquired on January 1, 2006.
 
Critical Accounting Policies
 
We prepare our consolidated financial statements in conformity with accounting principles generally accepted in the United States of America. As such, we are required to make certain estimates, judgments and assumptions that we believe are reasonable based upon the information available. These estimates and assumptions affect the reported amounts of assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the periods presented. The significant accounting policies that we believe are the most critical in fully understanding and evaluating our reported financial results are the following:
 
Revenue Recognition.  We recognize revenue from services rendered once all the following criteria for revenue recognition have been met: (1) pervasive evidence of an agreement exists; (2) the services have been rendered; (3) the fee is fixed and determinable and not subject to refund or adjustment; and (4) collection of the amounts due is reasonably assured.
 
We evaluate the criteria outlined in Emerging Issues Task Force, (“EITF”) Issues No. 99-19, Reporting Revenue Gross as a Principal versus Net as an Agent, in determining whether it is appropriate to record the gross amount of product sales and related costs or the net amount earned as net revenue. We act as the merchant of record on most of the transactions processed and have contractual relationships with our clients, which obligate us to pay to the client a specified percentage of each sale. We derive our revenue primarily from transaction fees based on a percentage of the products sale price and fees from services rendered associated with the e-commerce and other services provided to our clients and end customers.


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Our revenue is recorded as net as generally our clients are subject to inventory risks and control customers’ product choices. Clients do not have the right to take possession of the software applications used in the delivery of services.
 
We also provide customers with various proprietary software backup services. We recognize revenue for these backup services upon delivery or based upon historical usage within the contract period of the digital backup services when this information is available. Digital backup services are recognized straight-line over the life of the backup service when historical usage information is unavailable. Shipping revenues are recorded net of any associated costs.
 
We also, to a lesser extent, provide fee-based client services, which include website design, custom development and integration, analytical marketing and email marketing services. If we receive payments for fee-based services in advance of delivery, these amounts are deferred and recognized over the service period.
 
Provisions for doubtful accounts and transaction losses and authorized credits are made at the time of revenue recognition based upon our historical experience. The provision for doubtful accounts and transaction losses are recorded as charges to operating expense, while the provision for authorized credits is recognized as a reduction of net revenues.
 
In June 2006, the EITF reached a consensus on EITF Issue No. 06-3, “How Taxes Collected from Customers and Remitted to Governmental Authorities Should Be Presented in the Income Statement (That is, Gross versus Net Presentation)” (“EIFT 06-3”). EITF 06-3 provides that the presentation of taxes assessed by a governmental authority that is directly imposed on a revenue-producing transaction between a seller and a customer on either a gross basis (included in revenues and costs) or on a net basis (excluded from revenues) is an accounting policy decision that should be disclosed. The Company presents these taxes on a net basis.
 
Allowance for Doubtful Accounts.  We must make estimates and assumptions that can affect the amount of assets and liabilities and the amounts of revenues and expenses we report in any financial reporting period. We use estimates in determining our allowance for doubtful accounts, which are based on our historical experience and current trends. We must estimate the collectability of our billed accounts receivable. We analyze accounts receivable and consider our historical bad debt experience, customer credit-worthiness, current economic trends and changes in our customer payment terms when evaluating the adequacy of the allowance for doubtful accounts. We must make significant judgments and estimates in connection with the allowance in any accounting period. There may be material differences in our operating results for any period if we change our estimates or if the estimates are not accurate.
 
Credit Card Chargeback Reserve.  We use estimates based on historical experience and current trends to determine accrued chargeback expenses. Significant management judgments are used and estimates made in connection with the accrued expenses in any accounting period. There may be material differences in our operating results for any period if we change our estimates or if the estimates are not accurate.
 
Goodwill, Intangibles and Other Long-Lived Assets.  We depreciate property, plant and equipment; amortize certain intangibles and certain other long-lived assets with definite lives over their useful lives. Useful lives are based on our estimates of the period of time over which the assets will generate revenue or benefit our business. We review assets with definite lives for impairment whenever events or changes in circumstances indicate that the value we are carrying on our financial statements for an asset may not be recoverable. Our evaluation considers non-financial data such as changes in the operating environment and business strategy, competitive information, market trends and operating performance. If there are indications that impairment may be necessary, we use an undiscounted cash flow analysis to determine the impairment amount, if any. Assets with indefinite lives are reviewed for impairment annually (or more frequently if there are indications that an impairment may be necessary) utilizing the two-step approach prescribed in Statement of Financial Accounting Standards (SFAS) No. 142, “Goodwill and Other


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Intangible Assets.” There have been no impairments of goodwill and other intangible assets for the years 2007, 2006 and 2005.
 
Income Taxes and Deferred Taxes.  Deferred income taxes reflect the tax effects of temporary differences between the carrying amounts of assets and liabilities for financial reporting purposes and the amounts used for income tax purposes. We record deferred tax assets for favorable tax attributes, including tax loss carryforwards. We currently have significant U.S. tax loss carryforwards consisting solely of acquired operating tax loss carryforwards, and a lesser amount of acquired foreign operating tax loss carryforwards. A portion of the benefit of the acquired tax loss carryforwards has been reserved by a valuation allowance pursuant to United States generally accepted accounting principles. These valuation reserves of the deferred tax asset will be reversed if and when it is more likely than not that the deferred tax asset will be realized. We evaluate the need for a valuation allowance of the deferred tax asset on a quarterly basis. If the benefit of these acquired tax loss carryforwards is recognized, we will not recognize the benefit in the statement of income. Rather, the benefit will be recognized as a reduction to goodwill.
 
On January 1, 2007, we adopted FASB Interpretation No. 48 (FIN 48), Accounting for Uncertainty in Income Taxes — an interpretation of FASB Statement No. 109. FIN 48 clarifies the accounting for uncertainty in income taxes recognized under SFAS No. 109, Accounting for Income Taxes. FIN 48 prescribes a recognition threshold and measurement attribute for financial statement recognition and measurement of a tax position taken or expected to be taken in a tax return and also provides guidance on various related matters such as derecognition, interest and penalties, and disclosure. As a result of the implementation of FIN 48, we recognized no material adjustment in the liability for unrecognized income tax benefits.
 
No provision has been made for federal income taxes on approximately $48.9 million of our foreign subsidiaries undistributed earnings as of December 31, 2007 since we plan to indefinitely reinvest all such earnings. If these earnings were distributed to the U.S. in the form of dividends or otherwise, we would be subject to U.S. income taxes on such earnings. The amount of U.S. income taxes would be subject to adjustment for foreign tax credits and for the impact of the step-up in the basis of assets resulting from a Section 338 election made at the time of acquisition. It is not practicable to determine the income tax liability that might be incurred if these earnings were to be distributed.
 
Stock-Based Compensation Expense.  On January 1, 2006, we adopted Statement of Financial Accounting Standards No. 123 (Revised 2004), “Share-Based Payment,” (“SFAS 123(R)”) which requires the measurement and recognition of compensation expense for all share-based payments made to employees and directors including stock options, restricted stock grants and employee stock purchases made through our Employee Stock Purchase Plan based on estimated fair values. SFAS 123(R) supersedes our previous accounting under Accounting Principles Board Opinion No. 25 (“APB 25”), “Accounting for Stock Issued to Employees,” for periods beginning in 2006.
 
Prior to the adoption of SFAS 123(R), we had elected to apply the disclosure-only provision of SFAS No. 123, “Accounting for Stock-Based Compensation” as amended by SFAS No. 148. Accordingly, we accounted for stock-based compensation using the intrinsic value method prescribed in APB 25 and related interpretations. Compensation expense for stock options was measured as the excess, if any, of the fair value of our common stock at the date of grant over the stock option exercise price.
 
We have adopted SFAS 123(R) using the modified prospective transition method under which prior periods are not revised. Stock-based compensation expense recognized during the period is based on the value of the portion of share-based awards that are ultimately expected to vest during the period. Stock-based compensation expense recognized in our Consolidated Statement of Income in 2006 and 2007 includes compensation expense for share-based awards granted prior to, but not yet vested, as of December 31, 2005, as well as compensation expense for the share-based payment awards granted subsequent to December 31, 2005. The fair value of each stock option grant is estimated on the date of grant using the Black-Scholes option pricing model. The fair value of restricted stock is determined based on the number of shares granted and the closing price of our common stock on the date of grant. Compensation expense for all share-based payment awards is recognized using the straight-line amortization method over the vesting period. Stock-based


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compensation expense of $13.7 million was charged to operating expenses during 2007. The related tax benefit of $3.7 million resulted in a net after-tax stock-based compensation expense of $10.0 million for 2007.
 
As stock-based compensation expense recognized in our Consolidated Statement of Income for 2007 is based on awards ultimately expected to vest, it has been reduced for estimated forfeitures. SFAS 123(R) requires forfeitures to be estimated at the time of grant and revised, if necessary, in subsequent periods if actual forfeitures differ from those estimates. Our pro forma information required under SFAS 123, for periods prior to 2006, accounted for forfeitures as they occurred. In March 2005 the Securities and Exchange Commission issued Staff Accounting Bulletin No. 107 (“SAB 107”), which provides supplemental implementation guidance for SFAS 123(R). We have applied the provision of SAB 107 in our adoption of SFAS 123(R).
 
SFAS 123(R) also requires the benefits of tax deductions in excess of recognized stock-based compensation expense be reported as a financing cash flow, rather than an operating cash flow as required prior to adoption of SFAS 123(R) in our Consolidated Statement of Cash Flows. On November 10, 2005, the Financial Accounting Standards Board (FASB) issued FASB Staff Position No. FAS 123(R)-3 “Transition Election Related to Accounting for Tax Effects of Share-based Payment Awards.” We have elected not to adopt the alternative transition method provided in the FASB Staff Position for calculating the tax effects of stock-based compensation pursuant to SFAS 123(R).
 
See Note 5 in the Consolidated Financial Statements in this Form 10-K for further information regarding the impact of our adoption of SFAS 123(R) and the assumptions we use to calculate the fair value of share-based compensation.
 
Results of Operations
 
The following table presents certain items from our consolidated statements of income as a percentage of total revenue for the years indicated.
 
                         
    2007   2006   2005
 
Revenue
    100.0 %     100.0 %     100.0 %
Costs and expenses:
                       
Direct cost of services
    2.9       2.5       2.3  
Network and infrastructure
    9.3       9.5       9.0  
Sales and marketing
    38.5       36.9       31.5  
Product research and development
    11.2       10.5       9.4  
General and administrative
    11.1       11.1       9.7  
Depreciation and amortization
    3.6       3.6       4.0  
Amortization of acquisition-related costs
    2.2       3.9       4.0  
                         
Total costs and expenses
    78.8       78.0       69.9  
                         
Income from operations
    21.2       22.0       30.1  
Interest Income
    9.2       7.4       4.4  
Other (expense), net
    (0.9 )     (0.3 )     (2.1 )
                         
Income before income tax expense
    29.5       29.1       32.4  
Income tax expense
    9.2       9.3       6.8  
                         
Net income
    20.3 %     19.8 %     25.6 %
                         
 
Revenue.  Our revenue increased to $349.3 million in 2007 from $307.6 million in 2006 and $220.4 million in 2005. The revenue increases were primarily attributable to increased traffic, increase in average order value offset by a reduction in close ratio, growth in the number of online game and consumer electronic clients we served, increased sales from international sites, expanded strategic marketing activities with a larger number of clients, and acquisitions. Sales of security software products for PCs represent the largest contributor to our revenues. Acquisitions made during each of 2007, 2006 and 2005 generated approximately


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1.3%, 3.5% and 2.0% of our total revenue for those years, respectively. International sales represented approximately 43.2%, 41.2% and 38.7% of revenue in the years ended December 31, 2007, 2006 and 2005, respectively. That growth is attributable to a larger number of international stores being operated for our clients. Sales of products for one software publisher client, Symantec Corporation, accounted for approximately 26.2% of our revenue in 2007, 30.2% in 2006 and 29.7% in 2005. In addition, revenues derived from proprietary Digital River services sold to Symantec end-users and dealer network sales of Symantec products amounted to approximately 13.2% of our total revenue in 2007, 16.6% in 2006 and 14.4% in 2005.
 
Direct Cost of Services.  Our direct cost of services primarily include costs related to personnel, product fulfillment, physical on demand, our proprietary back-up CD production and client-specific costs. Direct cost of service expense was $10.2 million, $7.7 million, and $5.1 million, in 2007, 2006 and 2005, respectively. The increase in 2007 compared with 2006 was primarily due to approximately $1.6 million in increased CD supply costs associated with higher gross sales and $0.8 million in additional personnel costs to support our largest clients and handle increased sales volume. The increase in 2006 compared with 2005 was attributable to personnel added to support new clients and increased transaction volumes, recent acquisitions and stock-based compensation expense related to employee stock options and employee stock purchases recognized under SFAS 123(R). As a percentage of revenue, direct cost of services increased to 2.9% in 2007 from 2.5% and 2.3% in 2006 and 2005, respectively.
 
We currently believe direct costs of services will increase in absolute dollars in 2008 compared to 2007 as we continue to expand our worldwide fulfillment capacity to meet anticipated shipment volumes.
 
Network and Infrastructure.  Our network and infrastructure expenses primarily include personnel related expenses and costs to operate and maintain our technology platforms, customer service, data communication and data center operations. Network and infrastructure expenses were $32.3 million in 2007, up from $29.3 million and $19.8 million in 2006 and 2005, respectively. The increase in 2007 from 2006 was primarily due to approximately $1.8 million in additional software license amortization expense, $1.3 million in increased data telecommunication and data center operations costs and $1.0 million of network and infrastructure costs related to recent acquisition, NetGiro Systems. These increases supported our revenue growth and were partially offset by $1.9 million lower personnel costs due primarily to Symantec Corporation bringing certain customer service activities in-house and the absence of workforce reduction related costs incurred in connection with the 2006 consolidation of our International customer service center located in Ireland. The increase in 2006 expenses from 2005 resulted primarily from Information Services personnel added to support our revenue growth as well as those gained through acquisition of other businesses and costs related to operating new international data centers. As a percentage of revenue, network and infrastructure costs declined to 9.3% from 9.5% in 2006 and were 9.0% in 2005.
 
We currently believe network and infrastructure expenses will increase in absolute dollars in 2008 compared to 2007 as we continue to expand our worldwide global data center and customer service capacity.
 
Sales and Marketing.  Our sales and marketing expenses mainly include credit card transaction and other payment processing fees, personnel and related costs, advertising, promotional and product marketing expenses, credit card chargeback’s and bad debt expense. Sales and marketing expenses were $134.4 million, $113.5 million and $69.4 million in 2007, 2006 and 2005, respectively. The increase in 2007 from 2006 was driven by an additional $9.2 million in personnel and related costs to support our global growth initiatives in strategic and product marketing, $5.7 million in promotional and product marketing expenses associated with MarketForce services, particularly paid search and a $5.5 million increase in credit card and other payment processing fees directly related to incremental gross revenue and the addition of new international payment methods. During 2007, we continued to strengthen our presence in the global and the consumer electronics markets. We increased the value of existing client relationships through our strategic marketing and oneNetwork affiliate program. In addition, we expanded our relationships with two of our major partners, Symantec and Microsoft. The increase in sales and marketing expenses in 2006 from 2005 resulted primarily from credit card fees directly associated with increased revenue, new international payment methods, marketing personnel and related expenses, costs from recent acquisitions, and stock-based compensation expense related to employee stock options and employee stock purchases recognized under SFAS 123(R). As a


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percentage of revenue, sales and marketing expense increased to 38.5% in 2007 from 36.9% and 31.5% in 2006 and 2005, respectively.
 
We currently believe sales and marketing expenses will increase in absolute dollars in 2008 compared to 2007, to support the expansion of our client relationships through increased investments in subscriptions, international payment processing and strategic marketing services. We also plan to invest in key vertical markets, in particular consumer electronics and games.
 
Product Research and Development.  Our product research and development expenses include the costs of personnel and related expenses associated with developing and enhancing our technology platforms and related systems. Product research and development expense was $39.2 million in 2007, compared to $32.3 million and $20.7 million in 2006 and 2005, respectively. The increase in 2007 from 2006 was primarily due to strategic investments of an additional $4.8 million in professional consulting fees and $2.4 million additional personnel related expenses mainly in software development and quality assurance. These investments supported on-going initiatives in our e-commerce infrastructure to advance global system scalability, our e-marketing capabilities and client reporting. We expect these investments to drive long-term operational efficiencies across the organization and provide further competitive differentiation. Our 2007 network and infrastructure costs also included new acquisition NetGiro Systems and software development expenses related to our new relationship with Electronic Arts, a leading interactive entertainment software company. We did not capitalize any internal software development costs in 2007. The increase in 2006 from 2005 resulted primarily from increases in personnel related expenses to support our growth initiatives, costs from recent acquisitions, development related to our expanded relationship with Microsoft and stock-based compensation expense related to employee stock options and employee stock purchases recognized under SFAF 123(R). As a percentage of revenue, product research and development expense increased to 11.2% in 2007 from 10.5% in 2006 and 9.4% in 2005.
 
We currently believe that product research and development expenses will increase in absolute dollars in 2008 compared to 2007, as a result of continued investments in product development required to remain competitive.
 
General and Administrative.  Our general and administrative expenses primarily include the costs of executive, accounting and administrative personnel and related expenses, professional fees for legal, tax and audit services, bank fees and insurance. General and administrative expenses increased to $38.9 million in 2007 from $34.2 million and $21.5 million in 2006 and 2005, respectively. The increase in 2007 from 2006 resulted primarily from expenses required to support our global expansion and infrastructure investments including approximately $2.3 million of additional professional consulting fees, $1.7 million in additional personnel related costs and $0.9 million of additional bank fees mainly incurred by our new acquisition, NetGiro Systems. NetGiro Systems is an international payment service provider headquartered in Stockholm, Sweden. The increase expenses in 2006 from 2005 resulted primarily from the addition of personnel and facilities to support our global expansion, such as our offices in Ireland and Luxembourg, as well as those gained through acquisition of other businesses, from stock-based compensation expense related to employee stock options and employee stock purchases recognized under SFAS 123(R) and costs incurred for activities related to our internal review of historical stock option practices. As a percentage of revenue, general and administrative expenses were 11.1% in both 2007 and 2006 and increased from 9.7% in 2005.
 
We currently believe that general and administrative expenses will increase in absolute dollars in 2008 compared to 2007, as we continue to invest in our infrastructure to support continued organic growth and expenses related to new acquisitions.
 
Depreciation and Amortization.  Our depreciation and amortization expense line item includes the depreciation of computer equipment and office furniture and the amortization of purchased and internally developed software, leasehold improvements made to our leased facilities, and debt financing costs. Computer equipment, software and furniture are depreciated under the straight-line method using three to seven years lives, and leasehold improvements are amortized over the shorter of the life of the asset or the remaining length of the lease. Depreciation and amortization expense increased to $12.7 million in 2007 from $11.0 million in 2006 and $8.8 million in 2005. The increased expenses in 2007 and 2006 resulted primarily


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from increases in our assets, as gross capitalized property and equipment increased to $74.1 million on December 31, 2007, from $56.4 million and $52.0 million on December 31, 2006 and 2005, respectively.
 
We currently believe that depreciation and amortization expenses will increase in absolute dollars in 2008 compared to 2007 as we have and will continue to expand our worldwide customer support capacity and expand the number of operating global data centers.
 
Amortization of Acquisition Related Intangibles.  Our amortization of acquisition-related intangibles line item consists of the amortization of intangible assets recorded from our 9 acquisitions in the past four years. Amortization of acquisition related intangibles decreased to $7.6 million in 2007 from $12.1 million in 2006 and $8.7 million in 2005. The decrease in 2007 from 2006 and 2005 reflects the full amortization of certain past acquisitions partially offset by the increased amortization of 2007 acquisitions. We complete our annual goodwill impairment test using a two-step approach in the fourth quarter of each year. Our assessment has indicated that there is no impairment of goodwill for the years ended December 31, 2007, 2006 and 2005. We have purchased, and expect to continue purchasing, assets or businesses, which may include the purchase of intangible assets.
 
Income from Operations.  Our income from operations in 2007 was $73.9 million, up from $67.6 million in 2006 and $66.4 million in 2005. As a percentage of revenue, income from operations was 21.2% in 2007, 22.0% in 2006 and 30.1% in 2005. Income from operations decreased during 2007 from 2006 and 2005 as a percentage of revenue as expenses grew faster than revenues primarily due to higher spending on global growth initiatives.
 
Interest Income.  Our interest income line item is the total of interest income on our cash, cash equivalents, and short-term investments. Interest income was $32.2 million, $22.8 million and $9.7 million in 2007, 2006 and 2005, respectively. The increases in interest income were primarily due to higher cash balances and slightly higher interest rates.
 
Other Income (Expense), Net.  Our other income (expense), net line item is the total of interest expense on our debt and foreign currency transaction gains and losses. Interest expense was $2.4 million in 2007, 2006 and 2005 and is related primarily to our contingent convertible notes. Our loss from foreign currency remeasurement was $0.6 million in 2007 compared to a gain of $1.5 million in 2006 and a loss of $2.2 million in 2005.
 
Income Taxes.  In 2007, our tax expense was $32.3 million, made up of approximately $37.0 million of current tax expense and $4.7 million of deferred tax benefit. In 2006, our tax expense was $28.7 million, made up of approximately $39.4 million of current tax expense and $10.8 million of deferred tax benefit. In 2005, our tax expense was $14.9 million, made up of approximately $26.1 million of current tax expense and $11.2 million of deferred tax benefit. Our effective tax rate for 2007 was 31.3% compared to 32.0% in 2006 and 20.8% in 2005. In 2007 and 2006, our effective tax rate differed from statutory rates mainly because of the impact of the international tax structure that we implemented in early 2006. In 2005, our effective tax was impacted by the reversal of a previously established valuation allowance.
 
As of December 31, 2007, we had U.S. tax loss carryforwards of approximately $21.5 million and foreign tax loss carryforwards of $1.2 million. These tax loss carryforwards consist solely of acquired net operating losses. The U.S. tax loss carryforwards expire in the years 2021 through 2025.
 
In prior years, there was uncertainty of future realization of the deferred tax assets resulting from acquired U.S. tax loss carryforwards due to anticipated limitations, including limitations under Section 382 of the Internal Revenue Code (IRC). Therefore, a valuation allowance was recorded against the tax effect of such tax loss carryforwards. We have evaluated these deferred tax assets and concluded it is now more likely than not that we will realize $11.6 million of these deferred tax assets. This is based on conclusions of an IRC Section 382 analysis completed during this year as well as our expected future taxable income. The release of the valuation allowance was recorded in the second quarter of 2007 and was reflected as a reduction to goodwill. A valuation allowance remains on approximately $1.4 million of deferred tax assets related to acquired operating losses and other tax attributes as we believe it is not more likely than not that these


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deferred tax assets will be realized. This valuation allowance is due to anticipated limitations on acquired losses and any future release of this valuation allowance will reduce goodwill.
 
Comprehensive Income.  Comprehensive income includes revenues, expenses, gains and losses that are excluded from net earnings under GAAP. Items of comprehensive income are unrealized gains and losses on short term investments and foreign currency translation adjustments which are added to net income to compute comprehensive income. Comprehensive income is net of income tax benefits or expense.
 
In 2007, comprehensive income included $18.3 million recorded for unrealized foreign exchange gains on the revaluation of investments in foreign subsidiaries; and $1.0 million net of $0.6 million tax expense for unrealized investment gains. In 2006, comprehensive income included $13.5 million recorded for unrealized foreign exchange gains on the revaluation of investments in foreign subsidiaries; and $0.6 million net of $0.2 million tax expense for unrealized investment gains. In 2005, comprehensive income included $1.3 million recorded for unrealized foreign exchange losses on the revaluation of investments in foreign subsidiaries; and $0.8 million net of $0.5 million tax benefit for unrealized investment losses.
 
Liquidity and Capital Resources
 
As of December 31, 2007, we had $381.8 million of cash and cash equivalents, $315.6 million of short-term investments, and working capital of $529.7 million. The major components of our working capital are cash and cash equivalents, short-term investments and short-term receivables net of client and merchant payables. Our primary source of internal liquidity is our operating activities. Net cash provided by operating activities in 2007, 2006 and 2005 was $146.4 million, $117.5 million and $119.8 million, respectively. Net cash provided by operating activities in 2007 was primarily the result of net income adjusted for non-cash expenses, and increases in accrued liabilities and accounts payable partially offset by decreases in accounts receivable and income tax payable. Net cash provided by operating activities in 2006 and 2005 was primarily the result of net income adjusted for non-cash expenses, increases in accrued liabilities, accounts payable and income tax payable partially offset by an increase in accounts receivable. Due to our adoption of SFAS 123(R), as of January 1, 2006, the impact of the excess tax benefits of stock-based compensation, defined as the benefits of a tax deduction for share-based payment expenses that exceeds the recognized compensation expenses, is now reported under financing activities with a corresponding deduction from operating activities in our Consolidated Statements of Cash Flows.
 
Net cash used in investing activities was $128.7 million in 2007 and was the result of net purchases of investments of $78.3 million, cash paid for acquisitions, net of cash received, of $31.6 million, and purchases of capital equipment of $18.7 million. Net cash used in investing activities was $68.0 million in 2006 and was the result of net purchases of investments of $14.3 million, cash paid for acquisitions, net of cash received, of $37.8 million, and purchases of capital equipment of $15.9 million. Net cash used in investing activities was $125.4 million in 2005 and was the result of net purchases of investments of $62.9 million, cash paid for acquisitions, net of cash received, of $54.2 million, and purchases of capital equipment of $8.3 million.
 
In September 2007, we acquired all of the capital stock of NetGiro Systems AB, for approximately $27.4 million in cash. In January 2006, we acquired Direct Response Technologies, Inc. (now DR Marketing Solutions, Inc.) for approximately $15.0 million in cash, and in June 2006, we acquired MindVision for approximately $21.2 million in cash payments to stockholders plus the assumption of certain liabilities. In December 2005, we acquired all of the capital stock of Commerce5, Inc., an outsourced e-commerce provider to high-tech and consumer electronics manufacturers for $45.1 million in cash. In March 2005, we acquired SWReg, an operating business of Atlantic Coast plc, a private limited UK company, for $8.8 million in cash.
 
Net cash used by financing activities in 2007 was $35.5 million, net cash provided by financing activities in 2006 and 2005 was $204.6 million and $12.3 million, respectively. In 2007 our cash used in financing is mostly due to our stock repurchase which equaled $63.0 million and has been offset by sales to employees under our employee stock purchase plan and by exercise of stock options. In 2006 our external financing has been provided primarily by the sale of our stock and convertible notes in private and public offerings, and, to a lesser extent, by sales to employees under our employee stock purchase plan and by exercise of stock options. In March 2006, we sold 4.0 million shares of our common stock. The offering provided net proceeds


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of $172.8 million, and was made pursuant to a shelf registration statement previously filed with the Securities and Exchange Commission. During 2007, proceeds from the exercise of stock options provided cash of $13.5 million, and proceeds of $12.0 million were provided by the excess tax benefit from stock-based compensation. During 2006, proceeds from the exercise of stock options provided cash of $21.1 million, and proceeds of $9.0 million were provided by the excess tax benefit from stock-based compensation. During 2005, proceeds from the exercise of stock options provided cash of $23.2 million, and we repurchased $13.1 million of common stock, which reduced our net cash provided by financing activities.
 
Liquidity and Capital Resource Requirements
 
We believe that existing sources of liquidity and the results of our operations will provide adequate cash to fund our ongoing operations for the foreseeable future, although we may seek to raise additional capital. In January 2005, we filed a registration statement to increase our available shelf registration amount and we have approximately $82 million for future use. In addition, we filed an acquisition shelf for up to approximately 1.5 million shares. In February 2006, we filed a shelf registration that would allow us to sell an undetermined amount of equity or debt securities in accordance with the recently approved rules applying to “well known seasoned issuers.” These filings were made to provide future flexibility for acquisition and financing purposes. The sale of additional equity or convertible debt securities could result in additional dilution to our stockholders. There can be no assurances that financing will be available in amounts or on terms acceptable to us, if at all.
 
Contractual Obligations
 
At December 31, 2007, our principal commitments consisted of interest and principal on our convertible senior notes and long-term obligations outstanding under operating leases. Although we have no material commitments for capital expenditures, we anticipate continued capital expenditures consistent with our anticipated growth in operations, infrastructure and personnel. We expect that our operating expenses will continue to grow as our overall business grows and that they will be a material use of our cash resources.
 
                                         
    Payment Due by Period (In thousands)
    Total Amount
              2012 and
Contractual Obligations
  Committed   2008   2009   2010-2011   Thereafter
 
Operating Lease Obligations
  $ 13,013     $ 3,880     $ 2,485     $ 2,662     $ 3,986  
Convertible Senior Notes
  $ 235,220     $ 2,438     $ 2,438     $ 4,875     $ 225,469  
Total
  $ 248,233     $ 6,318     $ 4,923     $ 7,537     $ 229,455  
 
With respect to our convertible senior notes, we are required to pay interest on the notes on January 1 and July 1 of each year. The notes bear interest at a rate of 1.25% and, if specified conditions are met, are convertible into our common stock at a conversion price of $44.063 per share. The notes may be surrendered for conversion under certain circumstances, including the satisfaction of a market price condition, such that the price of our common stock reaches a specified threshold; the satisfaction of a trading price condition, such that the trading price of the notes falls below a specified level; the redemption of the notes by us; the occurrence of specified corporate transactions, as defined in the related indenture; and the occurrence of a fundamental change, as defined in the related indenture. The initial conversion price is equivalent to a conversion rate of approximately 22.6948 shares per $1,000 of principal amount of the notes. We will adjust the conversion price if certain events occur, as specified in the related indenture, such as the issuance of our common stock as a dividend or distribution or the occurrence of a stock subdivision or combination. If a fundamental change, such as a change in our control, as defined in the related indenture, occurs on or before January 1, 2009, we also may be required to purchase the notes for cash and pay an additional make-whole premium payable in our common stock, or in the same form of consideration into which all, or substantially, all of the shares of our common stock have been converted or exchanged in connection with the fundamental change, upon the repurchase or conversion of the notes in connection with the fundamental change. Holders of the notes have the right to require us to repurchase their notes prior to maturity on January 1, 2009, 2014 and 2019. We have the right to redeem the notes, under certain circumstances, on or after July 1, 2007, and prior to January 1, 2009, and we may redeem the notes at any time on or after January 1, 2009.


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2008 Outlook
 
We believe the outlook for our business remains positive for 2008. Global online sales continue to increase and buyers appear to be increasingly comfortable shopping online. In our core market, trends continue to favor the transition away from packaged, physical delivery of software to electronic download. Additionally, we see opportunities to grow our share of business in adjacent and complementary vertical markets such as consumer electronics and computer and video games. We also see opportunities to expand our core service offerings in areas such as payment processing, subscriptions management and strategic marketing. We anticipate making incremental investments in our people and technology in support of our strategic growth initiatives in 2008. We believe the initiatives outlined in our strategic plan will enable us to; 1) continue to be a leader in the software delivery market, 2) strengthen our product and service offering by investing in our core business, 3) expand into new vertical markets such as consumer electronics, and computer and video games and 4) supplement our growth through strategic acquisitions.
 
New Accounting Standards
 
In December 2007, the FASB issued SFAS No. 141 (Revised 2007), “Business Combinations.” This revised Statement, which we refer to as SFAS No. 141R, is intended to simplify existing guidance and converge rulemaking under U.S. GAAP with international accounting rules. SFAS No. 141R will significantly change the accounting for business combinations in a number of areas, including the treatment of contingent consideration, contingencies, acquisition costs and restructuring costs. Also under this Statement, changes in deferred tax asset valuation allowances and acquired income tax uncertainties in a business combination after the measurement period will impact income tax expense. SFAS No. 141R is effective for fiscal years beginning after December 15, 2008. Adoption of this Statement is not expected to have a material effect on our financial condition and results of operations or cash flows.
 
In September 2006, the FASB issued statement No. 157, “Fair Value Measurements”, (SFAS 157). SFAS 157 defines fair value, establishes a framework for measuring fair value in accordance with accounting principles generally accepted in the United States, and expands disclosures about fair value measurements. SFAS 157 is effective for fiscal years beginning after November 15, 2007, with earlier application encouraged. Any amounts recognized upon adoption as a cumulative effect adjustment will be recorded to the opening balance of retained earnings in the year of adoption. The Company has not yet determined the impact of this Statement on its financial condition and results of operations or cash flows.
 
Off Balance Sheet Arrangements
 
None
 
ITEM 7A.   QUALITATIVE AND QUANTITATIVE DISCLOSURE ABOUT MARKET RISK
 
Interest Rate Risk
 
Our portfolio of cash equivalents and short-term investments is maintained in a variety of securities, including government obligations and money market funds. Investments are classified as available-for-sale securities and carried at their market value with cumulative unrealized gains or losses recorded as a component of “accumulated other comprehensive income/(loss)” within stockholders’ equity. At December 31, 2007 and 2006, all securities held had maturities or reset dates of less than three years. A sharp rise in interest rates could have an adverse impact on the market value of certain securities in our portfolio. We do not currently hedge our interest rate exposure and do not enter into financial instruments for trading or speculative purposes or utilize derivative financial instruments. A hypothetical and immediate one percent (1%) increase in interest rates would decrease the fair value in our investment portfolio held at December 31, 2007 and 2006, by $1.48 million and by $1.38 million, respectively. A hypothetical and immediate one percent (1%) decrease in interest rates would increase the fair value in our investment portfolio held at December 31, 2007 and 2006, by $1.48 million and by $1.38 million, respectively. The approximate gains or losses in earnings are estimates, and actual results could vary due to the assumptions used. At December 31, 2007 and 2006, we had


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$195.0 million of 1.25% fixed rate contingent convertible debt outstanding. We presently believe there is minimal risk that market interest rates will drop significantly below 1.25%.
 
Foreign Currency Risk
 
Our business has historically been transacted primarily in the U.S. dollar and, as such, has not been subject to material foreign currency exchange rate risk. However, the growth in our international operations has increased our exposure to foreign currency fluctuations as well as other risks typical of international operations, including, but not limited to, differing economic conditions, changes in political climate, differing tax structures and other regulations and restrictions. Further, we recently acquired NetGiro Systems, a payment processor based in Stockholm, Sweden that processes international transactions, and the anticipated growth of this company will increase our exposure to foreign currency fluctuations. Accordingly, our future results could be materially adversely impacted by changes in these or other factors.
 
Foreign exchange rate fluctuations may adversely impact our consolidated results of operations as exchange rate fluctuations on transactions denominated in currencies other than our functional currencies result in gains and losses that are reflected in our Consolidated Statement of Income. To the extent the U.S. dollar weakens against foreign currencies, the translation of these foreign currency-denominated transactions will result in increased net revenues and operating expenses. Conversely, our net revenues and operating expenses will decrease when the U.S. dollar strengthens against foreign currencies. The following schedule summarizes revenue, costs and expenses and income from operations that would have resulted had exchange rates in the current period been the same as those in effect in the comparable prior-year period for operating results.
 
The effect on our consolidated statements of income from changes in exchange rates versus the U.S. Dollar is as follows (in thousands):
 
                                                                         
    Year Ended December 31, 2007     Year Ended December 31, 2006     Year Ended December 31, 2005  
    At Prior
    Exchange
          At Prior
    Exchange
          At Prior
    Exchange
       
    Year
    Rate
    As
    Year
    Rate
    As
    Year
    Rate
    As
 
    Rates(1)     Effect(2)     Reported     Rates(1)     Effect(2)     Reported     Rates(1)     Effect(2)     Reported  
 
Revenue
  $ 341,293     $ 7,982     $ 349,275     $ 307,071     $ 561     $ 307,632     $ 220,625     $ (217 )   $ 220,408  
Costs and expenses
    269,682       5,679       275,361       239,621       416       240,037       153,981       7       153,988  
                                                                         
Income from operations
  $ 71,611     $ 2,303     $ 73,914     $ 67,450     $ 145     $ 67,595     $ 66,644     $ (224 )   $ 66,420  
 
 
(1) Represents the outcome that would have resulted had exchange rates in the current period been the same as those in effect in the comparable prior-year period for operating results.
 
(2) Represents the increase (decrease) in reported amounts resulting from changes in exchange rates from those in effect in the comparable prior-year period for operating results.
 
Transaction Exposure
 
The Company enters into short term foreign currency forward contracts to offset the foreign exchange gains and losses generated by the re-measurement of certain assets and liabilities recorded in non-functional currencies. Changes in the fair value of these derivatives, as well as re-measurement gains and losses, are recognized in current earnings in other income (expense), net. Foreign currency transaction gains and losses were a loss of $0.6 million in 2007, a gain of $1.5 million in 2006 and a loss of $2.2 million in 2005.
 
Translation Exposure
 
Foreign exchange rate fluctuations may adversely impact our consolidated financial position as the assets and liabilities of our foreign operations are translated into U.S. dollars in preparing our consolidated balance sheet. These gains or losses are recognized as an adjustment to stockholders’ equity through accumulated other comprehensive income/(loss) net of tax benefit or expense. The potential loss in fair value resulting from a hypothetical 10% adverse currency movement is $22.9 million and $16.0 million for 2007 and 2006, respectively.


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ITEM 8.   FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
 
QUARTERLY FINANCIAL DATA (UNAUDITED)
 
Our Financial Statements and Notes thereto appear beginning at page 52 of this report.
 
                                 
    Quarter Ended  
    March 31     June 30     September 30     December 31  
    (In thousands, except per share data)  
 
2007
                               
Revenue
  $ 91,631     $ 78,227     $ 82,539     $ 96,878  
Income from operations
    23,015       12,998       14,646       23,255  
Net income
    20,706       14,493       15,299       20,316  
Net income per share — basic
  $ 0.51     $ 0.35     $ 0.38     $ 0.51  
Net income per share — diluted
  $ 0.46     $ 0.32     $ 0.35     $ 0.46  
 
                                 
    Quarter Ended  
    March 31     June 30     September 30     December 31  
    (In thousands, except per share data)  
 
2006
                               
Revenue
  $ 78,014     $ 71,277     $ 75,337     $ 83,004  
Income from operations
    20,824       14,189       14,565       18,017  
Net income
    16,377       13,289       14,788       16,355  
Net income per share — basic
  $ 0.46     $ 0.34     $ 0.37     $ 0.41  
Net income per share — diluted
  $ 0.41     $ 0.30     $ 0.33     $ 0.36  
 
ITEM 9.   CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE
 
None.
 
ITEM 9A.   CONTROLS AND PROCEDURES
 
(a)   Disclosure Controls and Procedures
 
Based on their evaluation of our disclosure controls and procedures conducted as of December 31, 2007, our Chief Executive Officer and Chief Financial Officer have concluded that our disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) promulgated under the Securities Exchange Act of 1934) were effective at reasonable assurance levels to ensure that the information required to be disclosed by us in this Form 10-K was recorded, processed, summarized and reported within the time periods specified in the rules and instructions for Form 10-K.
 
(b)   Management’s Annual Report on Internal Control over Financial Reporting
 
Our management, including the Chief Executive Officer and Chief Financial Officer, is responsible for establishing and maintaining an adequate system of internal control over financial reporting. This system of internal accounting controls is designed to provide reasonable assurance that assets are safeguarded, transactions are properly recorded and executed in accordance with management’s authorization and financial statements are prepared in accordance with generally accepted accounting principles. A control system, no matter how well conceived and operated, can provide only reasonable, not absolute, assurance that the objectives of the control system are met. Further, 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. Because of the inherent limitations in all control systems, no evaluation of controls can provide absolute assurance that all control issues and instances of fraud, if any, within our company have been detected. These inherent


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limitations include the realities that judgments in decision-making can be faulty, and that breakdowns can occur because of simple error or mistake. Additionally, controls can be circumvented by the individual acts of some persons, by collusion of two or more people, or by management override of the control. The design of any system of controls also is based in part upon certain assumptions about the likelihood of future events, and there can be no assurance that any design will succeed in achieving its stated goals under all potential future conditions; over time, control may become inadequate because of changes in conditions, or the degree of compliance with the policies or procedures may deteriorate. Because of the inherent limitations in a cost-effective control system, misstatements due to error or fraud may occur and not be detected.
 
Management conducted an evaluation of the effectiveness of the system of internal control over financial reporting based on the framework in Internal Control — Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). Based on this evaluation, management concluded that our internal control over financial reporting was effective as of December 31, 2007, 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. That evaluation excluded the business operations of NetGiro Systems AB on September 1, 2007. The acquired business operations excluded from the evaluation together constituted less than four percent of total assets at December 31, 2007, and approximately one percent of revenues and net income, for the year then ended. Ernst & Young LLP, an independent registered public accounting firm, has audited the effectiveness of our internal control over financial reporting as of December 31, 2007, as stated in their report in which they expressed an unqualified opinion, which is included herein.
 
(c)   Changes in Internal Control over Financial Reporting
 
During the quarter ended December 31, 2007, there was no change in our internal control over financial reporting that materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.
 
(d)   Report of Independent Registered Public Accounting Firm
 
The Board of Directors and Stockholders
Digital River, Inc.
 
We have audited Digital River, Inc.’s internal control over financial reporting as of December 31, 2007, based on criteria established in Internal Control — Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (the COSO criteria). Digital River, 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’s Annual Report on Internal Control over Financial Reporting. Our responsibility is to express an opinion on Digital River, Inc.’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


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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.
 
As indicated in the accompanying Management’s Annual Report on Internal Control over Financial Reporting, management’s assessment of and conclusion on the effectiveness of internal control over financial reporting did not include the internal controls of NetGiro Systems AB, which is included in the December 31, 2007, consolidated financial statements of Digital River Inc. and constituted less than 4% of total assets at December 31, 2007, and less than 2% of revenue and net income for the year then ended. Our audit of internal control over financial reporting of Digital River, Inc. also did not include an evaluation of the internal control over financial reporting of NetGiro Systems AB.
 
In our opinion, Digital River, Inc. maintained, in all material respects, effective internal control over financial reporting as of December 31, 2007, 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 Digital River, Inc. and subsidiaries as of December 31, 2007 and 2006, and the related consolidated statements of income, stockholders’ equity, and cash flows for each of the three years in the period ended December 31, 2007 of Digital River, Inc. and our report dated February 29, 2007 expressed an unqualified opinion thereon.
 
/s/  Ernst & Young LLP
 
Minneapolis, Minnesota
February 29, 2008
 
ITEM 9B.   OTHER INFORMATION
 
None.


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PART III
 
Certain information required in Part III of this report is incorporated by reference to our Proxy Statement in connection with our 2008 Annual Meeting to be filed in accordance with Regulation 14A under the Securities Exchange Act of 1934, as amended.
 
ITEM 10.   DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE
 
Other than the identification of executive officers, which is set forth in Part  I, Item 1 hereof, the information required in Item 10 of Part III of this report is incorporated by reference to our Proxy Statement in connection with our 2008 Annual Meeting to be filed in accordance with Regulation 14A under the Securities Exchange Act of 1934, as amended.
 
We have adopted a Code of Conduct and Ethics, a copy of which we undertake to provide to any person, without charge, upon request. Such requests can be made in writing to the attention of Corporate Secretary at our principal executive offices address. To the extent permitted by the rules promulgated by the NASD, we intend to disclose any amendments to, or waivers from, the Code provisions applicable to our principal executive officer or senior financial officers, including our chief financial officer and controller, or with respect to the required elements of the Code, on our website, www.digitalriver.com under the “Investor Relations” link.
 
ITEM 11.   EXECUTIVE COMPENSATION
 
The information required in Item 11 of Part III of this report is incorporated by reference to our Proxy Statement in connection with our 2008 Annual Meeting to be filed in accordance with Regulation 14A under the Securities Exchange Act of 1934, as amended.
 
ITEM 12.   SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS
 
The information required in Item 12 of Part III of this report is incorporated by reference to our Proxy Statement in connection with our 2008 Annual Meeting to be filed in accordance with Regulation 14A under the Securities Exchange Act of 1934, as amended.
 
ITEM 13.   CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE
 
The information required in Item 13 of Part III of this report is incorporated by reference to our Proxy Statement in connection with our 2008 Annual Meeting to be filed in accordance with Regulation 14A under the Securities Exchange Act of 1934, as amended.
 
ITEM 14.   PRINCIPAL ACCOUNTANT FEES AND SERVICES
 
The information required in Item 14 of Part III of this report is incorporated by reference to our Proxy Statement in connection with our 2008 Annual Meeting to be filed in accordance with Regulation 14A under the Securities Exchange Act of 1934, as amended.


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PART IV
 
ITEM 15.   EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
 
(a) The following documents are filed as part of this report:
 
(1) Financial Statements.
 
The consolidated financial statements required by this item are submitted in a separate section beginning on page 52 of this report.
 
         
    51  
    52  
    53  
    54  
    55  
    56  
 
(2) Financial Statement Schedules.
 
All schedules for which provision is made in the applicable accounting regulations of the SEC have been omitted as not required or not applicable, or the information required has been included elsewhere by reference in the financial statements and related notes, except for Schedule II, which is included with this Form 10-K, as filed with the SEC.
 
(3) Exhibits.
 
         
Exhibit
   
Number
 
Description of Document
 
  2 .1(1)   Stock Purchase Agreement, dated as of April 17, 2004, by and among Digital River, Inc., Blitz F03-1424 GmbH, a company organized under the laws of Germany and a wholly owned subsidiary of Digital River, and the selling shareholders of element 5 Informationstechnologien und — dienstleistungen Aktiengesellschaft, a company organized under the laws of Germany.
  3 .1(2)   Amended and Restated Certificate of Incorporation of the Registrant, as currently in effect.
  3 .2(4)   Amended and Restated Bylaws of the Registrant, as currently in effect.
  4 .1(5)   Specimen Stock Certificate.
  4 .2(2)   Form of Senior Debt Indenture.
  4 .3(2)   Form of Subordinated Debt Indenture.
  4 .4   References are hereby made to Exhibits 3.1 and 3.2.
  4 .5(9)   Indenture dated as of June 1, 2004, between Digital River, Inc. and Wells Fargo Bank, N.A. as trustee, including therein the form of the Note.
  10 .1(5)   Form of Indemnity Agreement between Registrant and each of its directors and executive officers.
  10 .3(5)   Consent to Assignment and Assumption of Lease dated April 22, 1998, by and between CSM Investors, Inc., IntraNet Integration Group, Inc. and Registrant.
  10 .4(3)   Assignment of Lease dated April 21, 1998, by and between Intranet Integration Group, Inc. and Registrant.
  10 .5(3)   Lease Agreement dated January 18, 2000, between Property Reserve, Inc. and Registrant.
  10 .6(4)   First Amendment of Lease dated January 31, 2001, to that certain Lease dated April 24, 1996, between CSM Investors, Inc. and Registrant (as assignee of Intranet Integration Group, Inc.).
  10 .7(6)   1998 Stock Option Plan, as amended and superseded by Exhibit 10.18.*
  10 .8(7)   1999 Stock Option Plan, formerly known as the 1999 Non-Officer Stock Option Plan, as amended and superseded by Exhibit 10.18.*
  10 .9(6)   2000 Employee Stock Purchase Plan, as amended, and offering.*


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Exhibit
   
Number
 
Description of Document
 
  10 .11(8)   Second Amendment of Lease dated April 22, 2002, to that certain Lease dated April 24, 1996, between CSM Investors, Inc. and Registrant (as assignee of Intranet Integration Group, Inc.) as amended.
  10 .12(8)   Second Amendment of Lease dated April 28, 2003, to that certain Lease dated January 18, 2000, between Property Reserve Inc. and Registrant.
  10 .15(9)   Registration Rights Agreement dated as of June 1, 2004, between Digital River, Inc. and the initial purchasers of Senior Convertible Notes due January 1, 2024.
  10 .16(13)   Summary of Compensation Program for Non-Employee Directors.
  10 .17(14)   Second Amended and Restated Symantec Online Store Agreement, by and among Symantec Corporation, Symantec Limited, Digital River, Inc. and Digital River Ireland Limited effective April 1, 2006‡
  10 .18(10)   1998 Equity Incentive Plan (formerly known as 1998 Stock Option Plan).*
  10 .19(13)   Amended and Restated Employment Agreement for Joel A. Ronning.*
  10 .20(13)   Change of Control and Severance Agreement for Thomas M. Donnelly.*
  10 .21(11)   Form of Amendment to Non-Qualified Stock Option Agreement.*
  10 .22(12)   Inducement Equity Incentive Plan.*
  10 .23++   2007 Equity Incentive Plan.*
  12 .1++   Computation of Ratio of Earnings to Fixed Charges.
  21 .1++   Subsidiaries of Digital River, Inc.
  23 .1++   Consent of Independent Registered Public Accounting Firm, dated February 29, 2008.
  24 .1++   Power of Attorney, pursuant to which amendments to this Annual Report on Form 10-K may be filed, is included on the signature pages of this Annual Report on Form 10-K.
  31 .1++   Certification of Digital River, Inc.’s Chief Executive Officer, pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
  31 .2++   Certification of Digital River, Inc.’s Chief Financial Officer, pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
  32 ++   Certification of Digital River, Inc.’s Chief Executive Officer and Chief Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
 
 
++ Filed herewith.
 
Management contract or compensatory plan.
 
‡  Confidential treatment has been requested for portions of this agreement, which portions have been filed † separately with the SEC.
 
(1) Incorporated by reference from the Company’s Current Report on Form 8-K filed on May 4, 2004.
 
(2) Incorporated by reference from the Company’s Current Report on Form 8-K filed on June 1, 2006.
 
(3) Incorporated by reference from the Company’s Annual Report on Form 10-K for the year ended December 31, 1999, filed on March 30, 2000.
 
(4) Incorporated by reference from the Company’s Annual Report on Form 10-K for the year ended December 31, 2000, filed on March 27, 2001.
 
(5) Incorporated by reference from the Company’s Registration Statement on Form S-1 (File No. 333-56787), declared effective on August 11, 1998.
 
(6) Incorporated by reference from the Company’s Registration Statement on Form S-8 (File No. 333-105864) filed on June 5, 2003.

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(7) Incorporated by reference from the Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2003, filed on August 14, 2003.
 
(8) Incorporated by reference from the Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2003, filed on May 15, 2003.
 
(9) Incorporated by reference from the Company’s Current Report on Form 8-K filed on July 13, 2004.
 
(10) Incorporated by reference from the Company’s Current Report on Form 8-K filed on May 31, 2005.
 
(11) Incorporated by reference from the Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2005, filed on August 9, 2005.
 
(12) Incorporated by reference from the Company’s Current Report on Form 8-K filed on December 20, 2005.
 
(13) Incorporated by reference from the Company’s Current Report on Form 8-K filed on March 14, 2007.
 
(14) Incorporated by reference from the Company’s Annual Report on Form 10-K for the year ended December 31, 2006, filed on March 1, 2007.


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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 on Form 10-K to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Eden Prairie, State of Minnesota, on February 29, 2008.
 
DIGITAL RIVER, INC.
 
  By: 
/s/  Joel A. Ronning
Joel A. Ronning
Chief Executive Officer
 
We, the undersigned, directors and officers of Digital River, Inc., do hereby severally constitute and appoint Joel A. Ronning and Thomas M. Donnelly and each or any of them, our true and lawful attorneys and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments to the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2007, and to file the same with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys and agents, and each or any of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys and agents, and each of them, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
 
Pursuant to the requirements of the Securities Exchange Act of 1934, this Form 10-K has been signed below by the following persons on behalf of the Registrant and in the capacities and on the dates indicated:
 
             
Signature
 
Title
 
Date
 
/s/  Joel A. Ronning

Joel A. Ronning
  Chief Executive Officer and Director
(Principal Executive Officer)
  February 29, 2008
         
/s/  Thomas M. Donnelly

Thomas M. Donnelly
  Chief Financial Officer and Treasurer
(Principal Financial and Accounting Officer)
  February 29, 2008
         
/s/  Perry W. Steiner

Perry W. Steiner
  Director   February 29, 2008
         
/s/  William Lansing

William Lansing
  Director   February 29, 2008
         
/s/  Thomas F. Madison

Thomas F. Madison
  Director   February 29, 2008
         
/s/  J. Paul Thorin

J. Paul Thorin
  Director   February 29, 2008
         
/s/  Frederic Seegal

Frederic Seegal
  Director   February 29, 2008


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Report of Independent Registered Public Accounting Firm
 
The Board of Directors and Stockholders
Digital River, Inc.
 
We have audited the accompanying consolidated balance sheets of Digital River, Inc. and subsidiaries as of December 31, 2007 and 2006, and the related consolidated statements of income, stockholders’ equity, and cash flows for each of the three years in the period ended December 31, 2007. Our audit also included the financial statement schedule listed in Item 15(a)(2). 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 Digital River, Inc. and subsidiaries at December 31, 2007 and 2006, and the consolidated results of their operations and their cash flows for each of the three years in the period ended December 31, 2007, 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 herein.
 
As discussed in Note 1 to the consolidated financial statements, effective January 1, 2006, the Company adopted the provisions of Statement of Financial Accounting Standards No. 123 (Revised 2004), Share Based Payment, using the modified prospective approach.
 
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), Digital River, Inc.’s internal control over financial reporting as of December 31, 2007, based on criteria established in Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission and our report dated February 29, 2008 expressed an unqualified opinion thereon.
 
/s/  Ernst & Young LLP
 
Minneapolis, Minnesota
February 29, 2008


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DIGITAL RIVER, INC.
 
 
                 
    December 31,
    December 31,
 
    2007     2006  
    (In thousands)  
 
ASSETS
CURRENT ASSETS:
               
Cash and cash equivalents
  $ 381,788     $ 390,243  
Short-term investments
    315,636       235,699  
Accounts receivable, net of allowance of $2,489 and $2,339
    64,914       52,392  
Deferred income taxes
    7,899       19,687  
Prepaid expenses and other
    4,577       6,025  
                 
Total current assets
    774,814       704,046  
                 
Property and equipment, net
    31,102       24,079  
Goodwill
    261,885       243,799  
Intangible assets, net of accumulated amortization of $59,493 and $50,092
    32,382       21,106  
Deferred income taxes
    15,606       1,276  
Other assets
    11,955       11,957  
                 
TOTAL ASSETS
  $ 1,127,744     $ 1,006,263  
                 
 
LIABILITIES AND STOCKHOLDERS’ EQUITY
CURRENT LIABILITIES:
               
Accounts payable
  $ 180,386     $ 141,386  
Accrued payroll
    12,704       12,097  
Deferred revenue
    10,384       7,040  
Accrued acquisition liabilities
    399       5,654  
Other accrued liabilities
    41,229       39,982  
                 
Total current liabilities
    245,102       206,159  
                 
NON-CURRENT LIABILITIES:
               
Convertible senior notes
    195,000       195,000  
Other liabilities
    11,362       1,345  
                 
Total non-current liabilities
    206,362       196,345  
                 
TOTAL LIABILITIES
    451,464       402,504  
                 
COMMITMENTS AND CONTINGENCIES
               
STOCKHOLDERS’ EQUITY:
               
Preferred Stock, $.01 par value; 5,000,000 shares authorized; no shares issued or outstanding
           
Common Stock, $.01 par value; 120,000,000 shares authorized; 42,502,019 and 41,021,709 shares issued and 40,549,135 and 40,458,093 outstanding
    405       404  
Additional paid-in capital
    576,529       546,758  
Retained earnings
    68,413       44,989  
Accumulated other comprehensive income
    30,933       11,608  
                 
Total stockholders’ equity
    676,280       603,759  
                 
TOTAL LIABILITIES AND STOCKHOLDERS’ EQUITY
  $ 1,127,744     $ 1,006,263  
                 
 
The accompanying notes are an integral part of these consolidated financial statements.


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DIGITAL RIVER, INC.
 
 
                         
    For the Years Ended December 31  
    2007     2006     2005  
    (In thousands except per share data)  
 
Revenue
  $ 349,275     $ 307,632     $ 220,408  
Costs and expenses
                       
Direct cost of services
    10,243       7,709       5,063  
Network and infrastructure
    32,309       29,250       19,817  
Sales and marketing
    134,401       113,462       69,371  
Product research and development
    39,179       32,341       20,690  
General and administrative
    38,937       34,158       21,484  
Depreciation and amortization
    12,706       10,983       8,833  
Amortization of acquisition-related intangibles
    7,586       12,134       8,730  
                         
Total costs and expenses
    275,361       240,037       153,988  
                         
Income from operations
    73,914       67,595       66,420  
Interest Income
    32,167       22,836       9,668  
Other expense, net
    (3,006 )     (949 )     (4,701 )
                         
Income before income tax expense
    103,075       89,482       71,387  
Income tax expense
    32,261       28,672       14,875  
                         
Net income
  $ 70,814     $ 60,810     $ 56,512  
                         
Net income per share — basic
  $ 1.75     $ 1.58     $ 1.64  
                         
Net income per share — diluted
  $ 1.58     $ 1.40     $ 1.41  
                         
Shares used in per-share calculation — basic
    40,444       38,593       34,536  
                         
Shares used in per-share calculation — diluted
    45,914       44,642       41,448  
                         
 
The accompanying notes are an integral part of these consolidated financial statements.


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DIGITAL RIVER, INC.
 
 
                                                                 
                                  Retained
             
                Additional
          Accumulated
    Earnings
    Total
       
    Common Stock     Paid-In
    Deferred
    Comprehensive
    (Accumulated
    Stockholders’
    Comprehensive
 
    Shares     Amount     Capital     Compensation     Income (Loss)     Deficit)     Equity     Income (Loss)  
    (In thousands)  
 
BALANCE, December 31, 2004
    33,652     $ 337     $ 255,739     $ (341 )   $ (330 )   $ (62,636 )   $ 192,769     $ 34,133  
                                                                 
Net income
                                  56,512       56,512       56,512  
Unrealized (loss) on investments
                            (776 )           (776 )     (776 )
Foreign currency translation (loss)
                            (1,325 )           (1,325 )     (1,325 )
Repurchase of common stock
    (483 )     (5 )     (3,637 )                 (9,503 )     (13,145 )      
Exercise of stock options
    1,718       17       23,182                         23,199        
Stock-based compensation
                (2,053 )     293                   (1,760 )      
Inducement Equity Incentive Plan
    64       1       1,971       (1,942 )                 30        
Tax benefit of stock-based compensation
                47,848                         47,848        
Common stock issued under the Employee
                                                               
Stock Purchase Plan
    83             2,199                         2,199        
                                                                 
BALANCE, December 31, 2005
    35,034     $ 350     $ 325,249     $ (1,990 )   $ (2,431 )   $ (15,627 )   $ 305,551     $ 54,411  
                                                                 
Net income
                                  60,810       60,810       60,810  
Reclassification of deferred compensation balance upon adoption of SFAS 123(R)
                (1,990 )     1,990                          
Unrealized gain on investments
                            576             576       576  
Foreign currency translation gain
                            13,463             13,463       13,463  
Sale of common stock
    4,000       40       172,740                               172,780        
Stock Issued for Acquisition
    28             1,175                   (3 )     1,172        
Exercise of stock options
    1,220       12       21,106                         21,118        
Stock-based compensation
    113       1       13,903                         13,904        
Tax withheld in restricted stock vesting
    (8 )             (235 )                 (191 )     (426 )      
Tax benefit of stock-based compensation
                12,700                         12,700        
Common stock issued under the Employee
                                                               
Stock Purchase Plan
    71       1       2,110                         2,111        
                                                                 
BALANCE, December 31, 2006
    40,458     $ 404     $ 546,758     $     $ 11,608     $ 44,989     $ 603,759     $ 74,849  
                                                                 
Net income
                                  70,814       70,814       70,814  
Unrealized gain on investments
                            1,006             1,006       1,006  
Foreign currency translation gain
                            18,319             18,319       18,319  
Repurchase of common stock
    (1,372 )     (14 )     (15,683 )                 (47,271 )     (62,968 )        
Stock Issued for Acquisition
    44             2,150                         2,150        
Exercise of stock options
    1,220       12       13,498                         13,510        
Stock-based compensation
                    13,742                         13,742        
Restricted stock issued under equity incentive plans, net of forfeitures
    135       2       (2 )                                        
Tax withheld in restricted stock vesting
    (11 )             (407 )                 (119 )     (526 )      
Tax benefit of stock-based compensation
                13,990                         13,990        
Common stock issued under the Employee Stock Purchase Plan
    76       1       2,483                         2,484        
                                                                 
BALANCE, December 31, 2007
    40,550     $ 405     $ 576,529     $     $ 30,933     $ 68,413     $ 676,280     $ 90,139  
                                                                 
 
The accompanying notes are an integral part of these consolidated financial statements.


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DIGITAL RIVER, INC.
 
 
                         
    For the Years Ended December 31,  
    2007     2006     2005  
    (In thousands)  
 
OPERATING ACTIVITIES:
                       
Net income
  $ 70,814     $ 60,810     $ 56,512  
Adjustments to reconcile net income to net cash provided by operating activities:
                       
Amortization of acquisition-related intangibles
    7,586       12,134       8,730  
Change in accounts receivable allowance, net of acquisitions
    (174 )     1,215       (598 )
Depreciation and amortization
    12,706       10,983       8,833  
Stock-based compensation expense related to stock-based compensation plans
    13,742       13,904       293  
Tax benefit of stock-based compensation
                45,417  
Excess tax benefits from stock-based compensation
    (12,030 )     (8,980 )      
Deferred income taxes and other
    27,522       19,583       (34,789 )
Litigation and other charges
                (739 )
Change in operating assets and liabilities (net of acquisitions):
                       
Accounts receivable
    (6,863 )     (14,678 )     (10,304 )
Prepaid and other assets
    1,325       (1,293 )     (2,417 )
Accounts payable
    32,181       3,701       34,822  
Deferred revenue
    3,046       811       1,395  
Income tax payable
    (7,076 )     8,126       2,740  
Accrued payroll and other accrued liabilities
    3,609       11,190       9,859  
                         
Net cash provided by operating activities
    146,388       117,506       119,754  
                         
INVESTING ACTIVITIES:
                       
Purchases of investments
    (436,806 )     (193,609 )     (190,713 )
Sales of investments
    358,470       179,296       127,771  
Cash paid for acquisitions, net of cash received
    (31,625 )     (37,800 )     (54,177 )
Purchases of equipment and capitalized software
    (18,722 )     (15,907 )     (8,328 )
                         
Net cash used in investing activities
    (128,683 )     (68,020 )     (125,447 )
                         
FINANCING ACTIVITIES:
                       
Proceeds from sales of common stock
          172,780        
Exercise of stock options
    13,510       21,118       23,199  
Sales of common stock under employee stock purchase plan
    2,483       2,109       2,199  
Repurchase of common stock
    (62,968 )           (13,145 )
Repurchase of restricted stock to satisfy tax withholding obligation
    (528 )     (426 )      
Excess tax benefits from stock-based compensation
    12,030       8,980        
                         
Net cash provided by (used in)financing activities
    (35,473 )     204,561       12,253  
                         
EFFECT OF EXCHANGE RATE CHANGES ON CASH
    9,313       4,426       (2,524 )
                         
NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS
    (8,455 )     258,473       4,036  
CASH AND CASH EQUIVALENTS, beginning of year
    390,243       131,770       127,734  
CASH AND CASH EQUIVALENTS, end of year
  $ 381,788     $ 390,243     $ 131,770  
                         
SUPPLEMENTAL DISCLOSURES:
                       
Cash paid for interest on Convertible Senior Notes
  $ 2,438     $ 2,438     $ 2,641  
                         
Cash paid for income taxes
  $ 8,232     $ 2,006     $ 193  
                         
Noncash investing and financing activities:
                       
Common stock issued in acquisitions and earn-outs
  $ 2,150     $ 1,172     $  
                         
 
The accompanying notes are an integral part of these consolidated financial statements.


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DIGITAL RIVER, INC.
 
 
1.   Nature of Operations and Summary of Significant Accounting Policies:
 
We provide outsourced e-commerce solutions globally to a wide variety of companies primarily in the software and high-tech products markets. We were incorporated in 1994 and began building and operating online stores for our clients in 1996. We generate revenue primarily based on the sales of products made in those stores, and in addition, offer services designed to increase traffic to our clients’ online stores and to improve the sales effectiveness of those stores.
 
Principles of Consolidation and Classification
 
The consolidated financial statements include the accounts of Digital River, Inc. and our wholly owned subsidiaries. All intercompany balances and transactions have been eliminated in consolidation.
 
Use of Estimates
 
The preparation of financial statements in accordance with the United States generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates.
 
Foreign Currency Translation
 
Substantially all of our foreign subsidiaries use the local currency of their respective countries as their functional currency. Assets and liabilities are translated at exchange rates prevailing at the balance sheet dates. Revenues, costs and expenses are translated into U.S. dollars at average exchange rates for the period. Gains and losses resulting from translation are recorded as a component of equity. Gains and losses resulting from foreign currency transactions are recognized as “other (expense), net.”
 
Cash and Cash Equivalents
 
We consider all short-term, highly liquid investments, primarily high grade commercial paper and money market accounts, that are readily convertible into known amounts of cash and that have original or remaining maturities of three months or less at the date of purchase to be cash equivalents. As of December 31, 2007 and 2006, cash balances of $1.5 million and $2.9 million, respectively, were held by banks or credit card processors to secure potential future credit card fees, fines and chargebacks or for other payments. In addition, at December 31, 2007 and 2006, $0.4 million and $0.6 million were restricted by letter of credit and agreements required by international tax jurisdictions as security for potential tax liabilities.
 
Short-Term Investments
 
Our short-term investments consist of debt securities that are classified as available-for-sale and are carried on our balance sheet at their market value with cumulative unrealized gains or losses recorded as a component of accumulated other comprehensive income within stockholders’ equity. As of December 31, 2007 and 2006, all securities had dates to maturity or reset dates of less than three years. We classify all of our available-for-sale securities as current assets, as these securities represent investments available for current corporate purposes.
 
Property and Equipment
 
Property and equipment is stated at historical cost. Computer equipment, software and furniture are depreciated under the straight-line method using estimated useful lives of three to seven years and leasehold


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DIGITAL RIVER, INC.
 
Notes to Consolidated Financial Statements — (Continued)
 
improvements are amortized over the shorter of the asset life or remaining length of the lease. Property and equipment at December 31 consisted of the following (in thousands):
 
                 
    2007     2006  
 
Computer hardware and software
  $ 60,977     $ 46,326  
Furniture, fixtures and leasehold improvements
    13,077       10,055  
                 
Total property and equipment
  $ 74,054     $ 56,381  
Accumulated depreciation
    (42,952 )     (32,302 )
                 
Net property and equipment
  $ 31,102     $ 24,079  
                 
 
Purchased Intangible Assets
 
Through both domestic and international acquisitions, we have continued to expand our global online businesses. Tangible net assets for our acquisitions were valued at their respective carrying amounts as we believe that these amounts approximated their current fair values at the respective acquisition dates. The valuation of identifiable intangible assets acquired reflects management’s estimates based on, among other factors, use of established valuation methods. Such assets consist of customer lists and user base, trademarks and trade names, developed technologies and other acquired intangible assets, including contractual agreements. Identifiable intangible assets are amortized using the straight-line method over the estimated useful lives, generally three to ten years. We believe the straight-line method of amortization best represents the distribution of the economic value of the identifiable intangible assets acquired to date. Goodwill represents the excess of the purchase price over the fair value of the net tangible and identifiable intangible assets acquired in each business combination. The purchase prices of the acquisitions described in Note 4 below exceeded the estimated fair value of the respective related identifiable intangible and tangible assets because we believe these acquisitions will assist with our strategy of establishing and expanding our global online marketplace.
 
Long-Lived Assets
 
We review all long-lived assets, including intangible assets with definite lives, for impairment in accordance with Statement of Financial Accounting Standards No. 144, “Accounting for the Impairment or Disposal of Long-Lived Assets” (“SFAS 144”). Under SFAS 144, impairment losses are recorded whenever events or changes in circumstances indicate the carrying value of an asset may not be recoverable. For long-lived assets used in operations, impairment losses are only recorded if the asset’s carrying amount is not recoverable through its undiscounted, probability-weighted cash flows. We measure the impairment loss based on the difference between the carrying amount and estimated fair value. An impairment loss is recognized when estimated undiscounted cash flows expected to result from the use of the asset plus net proceeds expected from disposition of the asset (if any) are less than the carrying value of the asset. As part of our evaluation, we consider certain non-financial data as indicators of impairment such as changes in the operating environment and business strategy, competitive information, market trends and operating performance. When an impairment loss is identified, the carrying amount of the asset is reduced to its estimated fair value. There were no significant impairments of long-lived assets, including definite-lived intangible assets, recorded in 2007, 2006 or 2005.
 
Fair Value of Financial Instruments
 
The carrying amount of cash and cash equivalents, accounts receivable, notes payable and accounts payable approximates fair value because of the short maturity of these instruments. As of December 31, 2007 and 2006, the fair value of our $195 million 1.25% fixed rate convertible senior notes was valued at $246 million and $270 million, respectively, based on the quoted fair market value of the debt.


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DIGITAL RIVER, INC.
 
Notes to Consolidated Financial Statements — (Continued)
 
Other Assets
 
The following table summarizes our other assets as of December 31 (in thousands):
 
                 
    2007     2006  
 
Unamortized debt financing costs
  $ 5,298     $ 5,630  
Cost of investment
    6,000       6,000  
Other
    657       327  
                 
Total other assets
  $ 11,955     $ 11,957  
                 
 
Other Accrued Liabilities
 
The following table summarizes our other accrued liabilities as of December 31 (in thousands):
 
                 
    2007     2006  
 
Accrued expenses
  $ 20,631     $ 15,212  
Sales, value-added and transaction taxes
    20,598       13,394  
Current income taxes
          11,376  
                 
Total other accrued liabilities
  $ 41,229     $ 39,982  
                 
 
Comprehensive Income
 
Comprehensive income includes revenues, expenses, gains and losses that are excluded from net earnings under GAAP. Items of comprehensive income are unrealized gains and losses on short term investments and foreign currency translation adjustments which are added to net income to compute comprehensive income. Comprehensive income is net of income tax benefits or expense.
 
In 2007, comprehensive income included $18.3 million recorded for unrealized foreign exchange gains on the revaluation of investments in foreign subsidiaries, and $1.0 million net of $0.6 million tax expense for unrealized investment gains. In 2006, comprehensive income included $13.5 million recorded for unrealized foreign exchange gains on the revaluation of investments in foreign subsidiaries, and $0.6 million net of $0.2 million tax expense for unrealized investment gains. In 2005, comprehensive income included $1.3 million recorded for unrealized foreign exchange losses on the revaluation of investments in foreign subsidiaries, and $0.8 million net of $0.5 million tax benefit for unrealized investment losses.
 
Revenue Recognition
 
We recognize revenue from services rendered once all the following criteria for revenue recognition have been met: (1) pervasive evidence of an agreement exists; (2) the services have been rendered; (3) the fee is fixed and determinable and not subject to refund or adjustment; and (4) collection of the amounts due is reasonably assured.
 
We evaluate the criteria outlined in Emerging Issues Task Force, (“EITF”) Issues No. 99-19, Reporting Revenue Gross as a Principal versus Net as an Agent, in determining whether it is appropriate to record the gross amount of product sales and related costs or the net amount earned as net revenue. We act as the merchant of record on most of the transactions processed and have contractual relationships with our clients, which obligate us to pay to the client a specified percentage of each sale. We derive our revenue primarily from transaction fees based on a percentage of the products sale price and fees from services rendered associated with the e-commerce and other services provided to our clients and end customers. Our revenue is recorded at net, as generally our clients are subject to inventory risks and control customers’ product choices. Clients do not have the right to take possession of the software applications used in the delivery of services.


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DIGITAL RIVER, INC.
 
Notes to Consolidated Financial Statements — (Continued)
 
We also provide customers with various proprietary software backup services. We recognize revenue for these back up services upon delivery or based upon historical usage within the contract period of the digital backup services when this information is available. Digital backup services are recognized straight-line over the life of the backup service when historical usage information is unavailable. Shipping revenues are recorded net of any associated costs.
 
We also, to a lesser extent, provide fee-based client services, which include website design, custom development and integration, analytical marketing and email marketing services. If we receive payments for fee-based services in advance of delivery, these amounts are deferred and recognized over the service period.
 
Provisions for doubtful accounts and transaction losses and authorized credits are made at the time of revenue recognition based upon our historical experience. The provision for doubtful accounts and transaction losses are recorded as charges to operating expense, while the provision for authorized credits is recognized as a reduction of net revenues.
 
In June 2006, the EITF reached a consensus on EITF Issue No. 06-3, “How Taxes Collected from Customers and Remitted to Governmental Authorities Should Be Presented in the Income Statement (That is, Gross versus Net Presentation)” (“EIFT 06-3”). EITF 06-3 provides that the presentation of taxes assessed by a governmental authority that is directly imposed on a revenue-producing transaction between a seller and a customer on either a gross basis (included in revenues and costs) or on a net basis (excluded from revenues) is an accounting policy decision that should be disclosed. The Company presents these taxes on a net basis.
 
Deferred Revenue
 
Deferred revenue is recorded when service payment is received in advance of performing our service obligation. Revenue is recognized over either the estimated usage period when usage information is available, or ratably over the service period when usage information is not available.
 
Advertising Costs
 
The costs of advertising are charged to sales and marketing expense as incurred. We incurred advertising expense of $0.1 million, $1.5 million and $0.1 million in 2007, 2006 and 2005, respectively.
 
Income Taxes
 
Deferred income taxes reflect the tax effects of temporary differences between the carrying amounts of assets and liabilities for financial reporting purposes and the amounts used for income tax purposes. We record deferred tax assets for favorable tax attributes, including tax loss carryforwards. We currently have significant U.S. tax loss carryforwards consisting solely of acquired operating tax loss carryforwards. A portion of the benefit of the acquired tax loss carryforwards has been reserved by a valuation allowance pursuant to United States generally accepted accounting principles. These valuation reserves of the deferred tax asset will be reversed if and when it is more likely than not that the deferred tax asset will be realized. We evaluate the need for a valuation allowance of the deferred tax asset on a quarterly basis.
 
Interest Income
 
Our interest income line item is the total of interest income on our cash, cash equivalents, and short-term investments. Interest income was $32.2 million, $22.8 million and $9.7 million in 2007, 2006 and 2005, respectively. The increases in interest income were primarily due to higher cash balances.


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DIGITAL RIVER, INC.
 
Notes to Consolidated Financial Statements — (Continued)
 
Other (Expense), Net
 
Our other (expense), net line item is the total of interest expense on our debt and foreign currency transaction gains and losses. Interest expense was $2.4 million in 2007, 2006 and 2005. Our loss from foreign currency remeasurement was $0.6 million in 2007 compared to a gain of $1.5 million in 2006 and a loss of $2.2 million in 2005.
 
Research and Development and Software Development
 
Research and development expenses consist primarily of development personnel and non-employee contractor costs related to the development of new products and services, enhancement of existing products and services, quality assurance, and testing. We follow AICPA Statement of Position No. 98-1, “Accounting for the Costs of Computer Software Developed or Obtained for Internal Use,” in accounting for internally developed software. During 2007 we didn’t capitalize any software development cost; in 2006 and 2005, we capitalized $0.1 million and $0.4 million, respectively, of software development costs.
 
Stock-Based Compensation Expense
 
On January 1, 2006, we adopted Statement of Financial Accounting Standards No. 123 (Revised 2004), “Share-Based Payment,” (“SFAS 123(R)”) which requires the measurement and recognition of compensation expense for all share-based payments made to employees and directors including stock options, restricted stock grants and employee stock purchases made through our Employee Stock Purchase Plan based on estimated fair values. SFAS 123(R) supersedes our previous accounting under Accounting Principles Board Opinion No. 25 (“APB 25”), “Accounting for Stock Issued to Employees,” for periods beginning in 2006.
 
Prior to the adoption of SFAS 123(R), we had elected to apply the disclosure-only provision of SFAS No. 123, “Accounting for Stock-Based Compensation” as amended by SFAS No. 148. Accordingly, we accounted for stock-based compensation using the intrinsic value method prescribed in APB 25 and related interpretations. Compensation expense for stock options was measured as the excess, if any, of the fair value of our common stock at the date of grant over the stock option exercise price.
 
We have adopted SFAS 123(R) using the modified prospective transition method under which prior periods are not revised. Stock-based compensation expense recognized during the period is based on the value of the portion of share-based awards that are ultimately expected to vest during the period. Stock-based compensation expense recognized in our Consolidated Statement of Income in 2006 and 2007 includes compensation expense for share-based awards granted prior to, but not yet vested, as of December 31, 2005, as well as compensation expense for the share-based payment awards granted subsequent to December 31, 2005. The fair value of each stock option grant is estimated on the date of grant using the Black-Scholes option pricing model. The fair value of restricted stock is determined based on the number of shares granted and the closing price of our common stock on the date of grant. Compensation expense for all share-based payment awards is recognized using the straight-line amortization method over the vesting period. Stock-based compensation expense of $13.7 million was charged to operating expenses during 2007. The related tax benefit of $3.7 million resulted in a net after-tax stock-based compensation expense of $10.0 million for 2007.
 
As stock-based compensation expense recognized in our Consolidated Statement of Income for 2007 is based on awards ultimately expected to vest, it has been reduced for estimated forfeitures. SFAS 123(R) requires forfeitures to be estimated at the time of grant and revised, if necessary, in subsequent periods if actual forfeitures differ from those estimates. Our pro forma information required under SFAS 123, for periods prior to 2006, accounted for forfeitures as they occurred. In March 2005 the Securities and Exchange Commission issued Staff Accounting Bulletin No. 107 (“SAB 107”), which provides supplemental implementation guidance for SFAS 123(R). We have applied the provision of SAB 107 in our adoption of SFAS 123(R).


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DIGITAL RIVER, INC.
 
Notes to Consolidated Financial Statements — (Continued)
 
SFAS 123(R) also requires the benefits of tax deductions in excess of recognized stock-based compensation expense be reported as a financing cash flow, rather than an operating cash flow as required prior to adoption of SFAS 123(R) in our Consolidated Statement of Cash Flows. On November 10, 2005, the Financial Accounting Standards Board (FASB) issued FASB Staff Position No. FAS 123(R)-3 “Transition Election Related to Accounting for Tax Effects of Share-based Payment Awards.” We have elected not to adopt the alternative transition method provided in the FASB Staff Position for calculating the tax effects of stock-based compensation pursuant to SFAS 123(R).
 
See Note 5 for further information regarding the impact of our adoption of SFAS 123(R) and the assumptions we use to calculate the fair value of share-based compensation.
 
Recent Accounting Pronouncements
 
In December 2007, the FASB issued SFAS No. 141 (Revised 2007), “Business Combinations.” This revised Statement, which we refer to as SFAS No. 141R, is intended to simplify existing guidance and converge rulemaking under U.S. GAAP with international accounting rules. SFAS No. 141R will significantly change the accounting for business combinations in a number of areas, including the treatment of contingent consideration, contingencies, acquisition costs and restructuring costs. Also under this Statement, changes in deferred tax asset valuation allowances and acquired income tax uncertainties in a business combination after the measurement period will impact income tax expense. SFAS No. 141R is effective for fiscal years beginning after December 15, 2008. Adoption of this Statement is not expected to have a material effect on our financial condition and results of operations or cash flows.
 
In September 2006, the FASB issued statement No. 157, “Fair Value Measurements” (SFAS 157). SFAS 157 defines fair value, establishes a framework for measuring fair value in accordance with accounting principles generally accepted in the United States, and expands disclosures about fair value measurements. SFAS 157 is effective for fiscal years beginning after November 15, 2007, with earlier application encouraged. Any amounts recognized upon adoption as a cumulative effect adjustment will be recorded to the opening balance of retained earnings in the year of adoption. We have not yet determined the impact of this Statement on our financial condition and results of operations.
 
2.  Net Income per Share:
 
Basic income per common share is computed by dividing net income by the weighted average number of shares of common stock outstanding during the period. Diluted earnings per common share is calculated by dividing net income, adjusted to exclude interest expense and financing cost amortization related to potentially dilutive securities, by the weighted average number of common shares related to potentially dilutive securities outstanding during the period, plus any additional common shares that would have been outstanding if potentially dilutive common shares had been issued during the period.


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DIGITAL RIVER, INC.
 
Notes to Consolidated Financial Statements — (Continued)
 
The following table summarizes the computation of basic and diluted earnings per share (in thousands, except per share data):
 
                         
    For the Years Ended December 31,  
    2007     2006     2005  
 
Earnings per share — basic
                       
Net income — basic
  $ 70,814     $ 60,810     $ 56,512  
Weighted average shares outstanding — basic
    40,444       38,593       34,536  
                         
Earnings per share — basic
  $ 1.75     $ 1.58     $ 1.64  
                         
Earnings per share — diluted
                       
Net income — basic
  $ 70,814     $ 60,810     $ 56,512  
Exclude: Interest expense and amortized financing cost of convertible senior notes, net of tax benefit
    1,739       1,739       2,099  
                         
Net income — diluted
  $ 72,553     $ 62,549     $ 58,611  
                         
Weighted average shares outstanding — basic
    40,444       38,593       34,536  
Dilutive impact of non-vested stock and options outstanding
    1,045       1,624       2,487  
Dilutive impact of convertible senior notes
    4,425       4,425       4,425  
                         
Weighted average shares outstanding — diluted
    45,914       44,642       41,448  
                         
Earnings per share — diluted
  $ 1.58     $ 1.40     $ 1.41  
                         
 
In accordance with the Emerging Issues Task Force (EITF), Issue No. 04-8, the unissued shares underlying contingent convertible notes are treated as if such shares were issued and outstanding for the purposes of calculating GAAP diluted earnings per share beginning with the issuance of our 1.25% convertible senior notes on June 1, 2004.
 
3.   Short-Term Investments:
 
As of December 31, 2007 and 2006, our available-for-sale securities consisted of the following (in thousands):
 
                                                 
          Unrealized Gain/(Loss)           Maturities/Reset Dates  
          Less than 12
    Greater than 12
          Less than 12
       
    Cost     Months     Months     Fair Value     Months     1 to 3 Years  
 
2007
                                               
U.S. government sponsored entities
  $ 139,377     $ 94     $ 859     $ 140,330     $ 69,070     $ 71,260  
Student loan bonds
    63,000                   63,000       63,000        
Other
    112,306                   112,306       112,306        
                                                 
Total available-for-sale securities
  $ 314,683     $ 94     $ 859     $ 315,636     $ 244,376     $ 71,260  
                                                 
2006
                                               
U.S. government sponsored entities
  $ 142,473     $ (441 )   $ (208 )   $ 141,824     $ 79,961     $ 61,863  
Student loan bonds
    35,000                   35,000       35,000        
Other
    58,875                   58,875       58,875        
                                                 
Total available-for-sale securities
  $ 236,348     $ (441 )   $ (208 )   $ 235,699     $ 173,836     $ 61,863  
                                                 


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DIGITAL RIVER, INC.
 
Notes to Consolidated Financial Statements — (Continued)
 
Realized gains or losses on investments are recorded in our statement of income within other income (expense), net. Realized losses on sales of investments were immaterial in 2007, 2006 and 2005. Interest income of $32.2 million, $22.8 million and $9.7 million was recorded in 2007, 2006 and 2005, respectively.
 
4.   Business Combinations, Goodwill and Intangible Assets:
 
The following table summarizes the purchase acquisitions completed during the three years in the period ended December 31, 2007 (in thousands):
 
                                                                 
    Initial
    Initial
                      Other Intangible Assets  
    Shares
    Purchase
    Acquired
    Assumed
          Technology/
    Customer
    Non-compete
 
Acquisition
  Issued     Consideration     Assets     Liabilities     Goodwill     Tradenames     Relationships     Agreements  
 
2007
                                                               
NetGiro Systems AB
     —     $ 27,386     $ 8,567     $ (7,477 )   $ 9,742     $ 4,424     $ 12,372     $  
                                                                 
Total
        $ 27,386     $ 8,567     $ (7,477 )   $ 9,742     $ 4,424     $ 12,372     $  
                                                                 
2006
                                                               
MindVision, Inc. 
        $ 24,975     $ 2,555     $ (8,036 )   $ 18,859     $ 3,170     $ 4,490     $ 40  
Direct Response Technologies, Inc. 
          14,876       1,573       (3,723 )     11,343       2,465       3,620        
                                                                 
Total
        $ 39,851     $ 4,128     $ (11,759 )   $ 30,202     $ 5,635     $ 8,110     $ 40  
                                                                 
2005
                                                               
Commerce5, Inc. 
        $ 45,000     $ 3,321     $ (5,501 )   $ 38,737     $ 1,607     $ 7,639     $  
SWReg
          8,800       5,373       (6,464 )     9,090       589       1,747        
                                                                 
Total
        $ 53,800     $ 8,694     $ (11,965 )   $ 47,827     $ 2,196     $ 9,386     $  
                                                                 
 
Note:  Balances as of acquisition date and do not reflect subsequent earn-outs, adjustments or currency translation.
 
Acquisitions completed in 2007
 
On September 1, 2007, we acquired all of the capital stock of NetGiro Systems AB (NetGiro), a privately held company based in Stockholm, Sweden, for approximately $27.4 million in cash. NetGiro is a payment service provider. The agreement also provides NetGiro shareholders with an earn-out opportunity based on NetGiro achieving certain revenue and earnings targets during the first year subsequent to the acquisition. Any future earn-out will result in additional goodwill.
 
Acquisitions completed in 2006
 
In June 2006, we acquired all of the capital stock of MindVision, Inc., a privately held e-commerce company based in Lincoln, Nebraska, for approximately $25.0 million comprised of payments to stockholders of $21.2 million plus the assumption of certain liabilities totaling approximately $3.7 million. In November 2006, we recorded $0.2 million as acquisition cost related to a restructuring plan for employee severance to be paid out over a six month period.
 
In January 2006, we acquired all of the capital stock of Direct Response Technologies, Inc. (Direct Response), a privately held company based in Pittsburgh, Pennsylvania, for approximately $15.0 million in cash. Direct Response, a provider of tools for managing affiliate networks, is now named DR Marketing Solutions, Inc. The agreement also provided Direct Response shareholders with an earn-out opportunity based on DR Marketing Solutions, Inc. achieving certain revenue and earnings targets during the first three years


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DIGITAL RIVER, INC.
 
Notes to Consolidated Financial Statements — (Continued)
 
subsequent to the acquisition. In 2006, we accrued $3.5 million for future earn-out payments. In 2007, pursuant to the January 2006 acquisition agreement, certain adjustments were made to the earn-out obligations under this agreement. Under the restructured earn-out agreement a final earn-out of $3.5 million was accrued and paid in 2007. These earn-outs have been recorded as goodwill in 2006 and 2007 as they were considered incremental to the purchase price.
 
Acquisitions completed in 2005
 
In December 2005, we acquired all of the capital stock of Commerce5, Inc. (Commerce5) for approximately $45.1 million in cash comprised of payments to stockholders of $32.4 million plus assumption of $12.7 million in liabilities. Commerce5, now named DR globalTech, Inc., is an outsourced e-commerce provider to high-tech and consumer electronics manufacturers headquartered in Aliso Viejo, California.
 
In March 2005, we acquired certain assets and assumed certain liabilities, vendor contracts and intellectual property of SWReg, an operating business of Atlantic Coast plc, a private limited UK company, for $8.8 million in cash. SWReg is a provider of e-commerce for services for software authors. The agreement also provided an opportunity for earn-out based on achieving specific revenue and development goals over the first 12 months following the closing of the acquisition. Earn-outs totaling $0.5 million have been recorded as goodwill as of December 31, 2007 as they were considered incremental to the purchase price.
 
Future Earn-outs
 
As of December 31, 2007, there were no future earn-outs in accrued acquisition liabilities.
 
Pro Forma Operating Results (Unaudited)
 
The consolidated financial statements include the operating results of each business acquired from the date of acquisition. The following unaudited pro forma condensed results of operations for 2007, 2006 and 2005 have been prepared as if each of the acquisitions in 2007 had occurred on January 1, 2006, and as if each of the 2006 acquisitions had occurred on January 1, 2005 (in thousands except per share data):
 
                         
    2007     2006     2005  
 
Revenue
  $ 357,190     $ 322,296     $ 242,488  
Income from operations
    74,771       68,260       63,606  
Net income
    71,670       61,338       53,954  
Diluted income per share
  $ 1.60     $ 1.41     $ 1.32  
 
This pro forma financial information does not purport to represent results that would actually have been obtained if the transactions had been in effect on January 1, 2006 or 2005, as applicable, or any future results that may be realized.
 
Goodwill
 
We account for our goodwill in accordance with SFAS No. 142, “Goodwill and Other Intangible Assets.” SFAS No. 142 precludes the amortization of goodwill and intangible assets with indefinite lives, but these assets are reviewed annually (or more frequently if impairment indicators arise) for impairment.
 
We complete our annual impairment test using a two-step approach based in the fourth quarter of each fiscal year and reassess any intangible assets, including goodwill, recorded in connection with earlier acquisitions. Our assessment has indicated that there is no impairment of goodwill for the years ended December 31, 2007, 2006 and 2005.


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DIGITAL RIVER, INC.
 
Notes to Consolidated Financial Statements — (Continued)
 
The changes in the net carrying amount of goodwill for the years ended December 31, 2007 and 2006 are as follows (in thousands):
 
         
    Total  
 
Balance as of December 31, 2005
  $ 195,299  
Goodwill from acquisitions and earn-outs
    35,883  
Adjustments(1)
    12,617  
         
Balance as of December 31, 2006
  $ 243,799  
Goodwill from acquisitions and earn-outs
    13,774  
Adjustments(1)
    4,312  
         
Balance as of December 31, 2007
  $ 261,885  
         
 
 
(1) Adjustments to goodwill during the year ended December 31, 2007 and December 31, 2006, resulted primarily from foreign currency translation adjustments relating to goodwill associated with our current and prior period acquisitions.
 
Intangible Assets
 
Information regarding our other intangible assets is as follows (in thousands):
 
                                 
    As of December 31, 2007        
    Carrying Amount
    Accumulated
    Carrying Amount
       
    Gross     Amortization     Net        
 
Customer relationships
  $ 57,327     $ 33,761     $ 23,566          
Non-compete agreements
    5,351       5,328       23          
Technology/tradename
    29,197       20,404       8,793          
                                 
Total
  $ 91,875     $ 59,493     $ 32,382          
                                 
 
                                 
    As of December 31, 2006  
    Carrying Amount
    Accumulated
    Carrying Amount
       
    Gross     Amortization     Net        
 
Customer relationships
  $ 43,072     $ 28,890     $ 14,182          
Non-compete agreements
    5,251       5,017       234          
Technology/tradename
    22,875       16,185       6,690          
                                 
Total
  $ 71,198     $ 50,092     $ 21,106          
                                 
 
The components of intangible assets acquired during the years ended December 31, 2007, 2006 and 2005, are as follows (in thousands). No significant residual value is estimated for these assets.
 
                                                 
    2007     2006     2005  
          Weighted
          Weighted
          Weighted
 
          Average
          Average
          Average
 
    Amount     Life     Amount     Life     Amount     Life  
 
Customer relationships
  $ 12,372       10 years     $ 8,110       8 years     $ 9,386       4 years  
Non-compete agreements
                40       4 years              
Technology/tradename
    4,424       8 years       5,635       4 years       2,196       4 years  
                                                 
Total
  $ 16,796       10 years     $ 13,785       6 years     $ 11,582       4 years  


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DIGITAL RIVER, INC.
 
Notes to Consolidated Financial Statements — (Continued)
 
Estimated amortization expense for the remaining life of the intangible assets, based on intangible assets as of December 31, 2007, is as follows (in thousands):
 
         
Year
     
 
2008
  $ 6,431  
2009
    5,520  
2010
    3,803  
2011
    3,235  
2012
    3,185  
Thereafter
    10,208  
         
Total
  $ 32,382  
         
 
Following is an allocation of the net assets acquired from the acquisitions consummated and amounts paid under earn-out arrangements in 2007 and 2006 (in thousands) which includes subsequent year activity for 2006 acquisitions:
 
                 
    2007     2006  
 
Tangible assets
  $ 8,567     $ 4,128  
Liabilities assumed
    (7,477 )     (11,759 )
Customer relationships
    12,372       8,110  
Non-compete agreements
          40  
Technology/tradename
    4,424       5,635  
Goodwill ( year of acquisition)
    9,742       30,202  
Goodwill (subsequent to year of acquisition)
           
                 
Net assets acquired
  $ 27,628     $ 36,356  
                 
 
5.   Stock-Based Compensation:
 
Our stockholders approved the Digital River, Inc. 2007 Equity Incentive Plan (the “2007 Plan”) at the Company’s annual stockholder meeting held on May 31, 2007. The number of shares issuable under the 2007 Plan equals 2,000,000 shares of our common stock. In addition, shares not issued under the 1998 Plan shall become available for issuance under the 2007 Plan to the extent a stock option or other stock award under the 1998 Plan expires or terminates before shares of common stock are issued under the award. Under our 2007 Equity Incentive Plan we have the flexibility to grant incentive and non-statutory stock options, restricted stock awards, restricted stock unit awards and performance shares to our directors, employees, and consultants.
 
Prior to the annual stockholders’ meeting held in May 2005, we had two stock-based employee compensation plans. At the annual stockholders’ meeting held in May 2005, our stockholders approved an amendment and restatement of our 1998 Stock Option Plan that combined the 1998 Plan with our 1999 Stock Option Plan and gave us the flexibility to grant restricted stock awards, restricted stock unit awards and performance shares, in addition to incentive and non-statutory stock options, to our directors, employees, and consultants under the combined plan. We call our new amended and restated plan our 1998 Equity Incentive Plan (the “1998 Plan”). Our current plan is described more fully in Note 11.
 
Prior to the adoption of SFAS 123(R), we presented deferred compensation as a separate component of shareholders’ equity. In 2006, in accordance with the provisions of SFAS(R), we reclassified the balance in deferred compensation to additional paid-in capital on our balance sheet.


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DIGITAL RIVER, INC.
 
Notes to Consolidated Financial Statements — (Continued)
 
Expense Information under SFAS 123(R)
 
On January 1, 2006, we adopted SFAS 123(R) which requires measurement and recognition of compensation expense for all stock-based payments made to employees and directors including stock options, restricted stock grants and employee stock purchases made through our Employee Stock Purchase Plan based on estimated fair values. The following table summarizes stock-based compensation expense, net of tax, related to our stock-based compensations plans recognized under SFAS 123(R):
 
                 
    Year Ended December 31,  
    2007     2006  
    (In thousands)     (In thousands)  
 
Costs and expenses
               
Direct cost of services
  $ 807     $ 842  
Network and infrastructure
    270       329  
Sales and marketing
    5,028       5,182  
Product research and development
    1,736       2,292  
General and administrative
    5,901       5,259  
                 
Stock-based compensation included in costs and expenses
    13,742       13,904  
Tax benefit
    (3,737 )     (4,868 )
                 
Stock-based compensation expense, net of tax
  $ 10,005     $ 9,036  
                 
 
The following table reflects net income and basic and diluted net income per share for 2007 and 2006 compared with the pro forma information for 2005 as if the Company had applied the fair value recognition provisions SFAS No. 123 to stock-based compensation during 2005 (in thousands, except per share amounts):
 
                         
    Year Ended December 31,  
    2007     2006     2005  
 
Net income, as reported for prior periods(1)
  $ N/A     $ N/A     $ 56,512  
Stock-based compensation expense included in reported net income, net
of tax
                    184  
Stock-based compensation expense determined under the fair value based method for all awards
    (13,742 )     (13,904 )     (13,170 )
Tax benefit(2)
    3,737       4,868       4,588  
                         
Stock-based compensation expense, net of tax(3)
    (10,005 )     (9,036 )     (8,582 )
                         
Net income, including the effect of stock-based compensation expense(4)
  $ 70,814     $ 60,810     $ 48,114  
                         
Basic net income per share — as reported for prior periods(1)
    N/A     $ N/A     $ 1.64  
                         
Diluted net income per share — as reported for prior periods(1)
    N/A     $ N/A     $ 1.41  
                         
Basic net income per share, including the effect of stock-based compensation expense(4)
  $ 1.75     $ 1.58     $ 1.39  
                         
Diluted net income per share, including the effect of stock-based compensation expense(4)
  $ 1.58     $ 1.40     $ 1.24  
                         
 
 
(1) Net income and net income per share prior to 2006 did not include stock-based compensation expense under SFAS 123 because we were following the provisions of APB 25.


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DIGITAL RIVER, INC.
 
Notes to Consolidated Financial Statements — (Continued)
 
 
(2) No tax benefit was recorded prior to the removal of the valuation allowance on certain deferred tax assets in the fourth quarter of 2005.
 
(3) Total stock-based compensation expense prior to 2006 is calculated based on the pro forma application of SFAS 123.
 
(4) Net income and net income per share prior to 2006 represents pro forma information based on SFAS 123.
 
Valuation Information under SFAS 123(R)
 
During the twelve months ending ended December 31, 2007, 2006 and 2005 we used the Black-Scholes option pricing model with the following weighted average assumptions:
 
                         
    2007     2006     2005  
 
Risk-free interest rate
    4.5 %     4.7 %     4.2 %
Expected life (years)
    3.46       4.08       3.14  
Volatility factor
    0.50       0.59       0.68  
Expected dividends
                 
Weighted average fair value of options granted
  $ 23.11     $ 19.00     $ 13.71  
 
The risk-free interest rate assumption is based on observed interest rates appropriate for the term of our stock options. The expected life of stock options represents the weighted-average period the stock options are expected to remain outstanding and is based on historical exercise patterns. We used historical closing stock price volatility for a period equal to the expected term of the options granted. The dividend yield assumption is based on our history and expectation of future dividend payouts.
 
As stock-based compensation expense recognized in the Consolidated Statement of Income for the twelve months ended December 31, 2007 is based on awards ultimately expected to vest, it has been reduced for estimated forfeitures. SFAS 123(R) requires forfeitures to be estimated at the time of grant and revised, if necessary, in subsequent periods if actual forfeitures differ from those estimates. Forfeitures were estimated based on historical experience. In our pro forma information required under SFAS 123 for the periods prior to 2006, we accounted for forfeitures as they occurred in accordance with APB 25.
 
At December 31, 2007, there was approximately $24.0 million of total unrecognized stock-based compensation expense, adjusted for estimated forfeitures, related to unvested share-based awards. Unrecognized stock-based compensation expense is expected to be recognized over the next 4.7 years on a weighted average basis and will be adjusted for any future changes in estimated forfeitures.
 
6.   Income Taxes:
 
The components of pretax income are as follows (in thousands):
 
                         
    Year Ended December 31,  
    2007     2006     2005  
 
United States
  $ 74,595     $ 65,171     $ 65,054  
International
    28,480       24,311       6,333  
                         
Total
  $ 103,075     $ 89,482     $ 71,387  
                         


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DIGITAL RIVER, INC.
 
Notes to Consolidated Financial Statements — (Continued)
 
The provision (benefit) for income taxes is composed of the following (in thousands):
 
                         
    Year Ended December 31,  
    2007     2006     2005  
 
Current tax expense (benefit):
                       
United States federal
  $ 29,204     $ 34,362     $ 20,825  
State and local
    1,842       2,160       1,484  
International
    5,939       2,915       3,825  
                         
Total current provision for income taxes
    36,985       39,437       26,134  
Deferred tax expense (benefit):
                       
United States federal
    (3,896 )     (10,136 )     (10,288 )
State and local
    (227 )     (637 )     (647 )
International
    (601 )     8       (324 )
                         
Total deferred provision (benefit) for income taxes
    (4,724 )     (10,765 )     (11,259 )
                         
Provision for income taxes
  $ 32,261     $ 28,672     $ 14,875  
                         
 
The following is a reconciliation of the difference between the actual provision for income taxes and the provision computed by applying the federal statutory rate of 35% to income before income taxes (in thousands):
 
                         
    Year Ended December 31,  
    2007     2006     2005  
 
Tax expense at statutory rate
  $ 36,076     $ 31,319     $ 24,986  
State taxes, net of federal benefit
    1,615       1,469       1,359  
International rate differential
    (4,623 )     (3,193 )     (1,561 )
Tax Credits
    (671 )     (1,909 )      
Nondeductible expense and other
    (136 )     986       1,801  
Change in valuation allowance
                (11,710 )
                         
Total
  $ 32,261     $ 28,672     $ 14,875  
                         


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DIGITAL RIVER, INC.
 
Notes to Consolidated Financial Statements — (Continued)
 
Deferred income taxes reflect the tax effects of temporary differences between the carrying amounts of assets and liabilities for financial reporting purposes and the bases for income tax purposes. Significant components of deferred income taxes are as follows (in thousands):
 
                 
    2007     2006  
 
Deferred tax assets:
               
Net operating loss and credit carryforwards
  $ 12,412     $ 30,302  
Nondeductible reserves and accruals
    9,144       6,123  
Depreciation and amortization
    3,339       4,522  
Valuation allowance
    (1,390 )     (12,960 )
                 
Total deferred tax assets
    23,505       27,987  
                 
Deferred tax liabilities:
               
Other intangibles
    (5,054 )     (7,540 )
                 
Total deferred tax liabilities
    (5,054 )     (7,540 )
                 
Net deferred tax assets
  $ 18,451     $ 20,447  
                 
 
As of December 31, 2007, we had U.S. tax loss carryforwards of approximately $21.5 million and foreign tax loss carryforwards of $1.2 million. These tax loss carryforwards consist solely of acquired net operating losses. The U.S. tax loss carryforwards expire in the years 2021 through 2025.
 
In prior years, there was uncertainty of future realization of the deferred tax assets resulting from acquired U.S. tax loss carryforwards due to anticipated limitations, including limitations under Section 382 of the Internal Revenue Code. Therefore, a valuation allowance was recorded against the tax effect of such tax loss carryforwards. We have evaluated these deferred tax assets and concluded it is now more likely than not that we will realize $11.6 million of these deferred tax assets. This is based on conclusions of an IRC Section 382 analysis completed during this year as well as our expected future taxable income. The release of the valuation allowance was recorded in the second quarter of 2007 and was reflected as a reduction to goodwill. A valuation allowance remains on approximately $1.4 million of deferred tax assets related to acquired operating losses and other tax attributes as we believe it is not more likely than not that these deferred tax assets will be realized. This valuation allowance is due to anticipated limitations on acquired losses and any future release of this valuation allowance will reduce goodwill.
 
On January 1, 2007, we adopted the provisions of Financial Standards Accounting Board Interpretation No. 48 “Accounting for Uncertainty in Income Taxes” (FIN 48) an interpretation of FASB Statement No. 109 (SFAS 109). As a result of the implementation of FIN 48, we recognized no material adjustment in the liability for unrecognized income tax benefits. A reconciliation of the beginning and ending amount of unrecognized tax benefits is as follows:
 
         
Balance at January 1, 2007
  $ 3,340  
Additions based on tax positions related to the current year
    1,072  
Additions for tax positions of prior years
    1,035  
         
Balance at December 31, 2007
  $ 5,447  
         
 
All of these unrecognized tax benefits would affect our effective tax rate if recognized. We recognize interest and penalties related to uncertain tax positions in income tax expense. We had approximately $80,000 and $50,000 of accrued interest and penalties related to uncertain tax positions at December 31, 2007 and 2006, respectively.


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DIGITAL RIVER, INC.
 
Notes to Consolidated Financial Statements — (Continued)
 
The Company and its subsidiaries file income tax returns in U.S. federal and various state jurisdictions, and foreign jurisdictions. The tax years 2004-2007 remain open to examination by the major taxing jurisdictions to which we are subject. During the second quarter of 2007, the Internal Revenue Service (IRS) commenced an examination of the Company’s 2004 U.S. income tax return. In the third quarter of 2007, the German tax authorities commenced an examination of the Company’s German subsidiaries’ income tax returns for years 2004 and thereafter. Due to the potential resolution of examinations currently being performed by taxing authorities, and the expiration of various statutes of limitation, it is reasonably possible that our gross unrecognized tax benefits balance may change within the next twelve months by a range of zero to $4.0 million.
 
7.   Commitments and Contingencies:
 
Leases
 
We currently have 35 facility leases in addition to leasing certain computer equipment under non-cancelable operating leases. Total rent expense, including common area maintenance charges, recognized under all leases was $5.7 million, $4.3 million and $3.0 million for the years ended December 31, 2007, 2006 and 2005, respectively. The minimum annual rents under long-term leases at December 31, 2007, were as follows (in thousands):
 
         
Year Ending December 31,
  Lease Obligations  
 
2008
  $ 3,880  
2009
    2,485  
2010
    1,656  
2011
    1,006  
2012
    412  
Thereafter
    3,574  
         
Total future minimum obligations
  $ 13,013  
         
 
Litigation
 
We are subject to legal proceedings, claims and litigation arising in the ordinary course of business. While the final outcome of these matters is currently not determinable, we believe there is no litigation pending against us that is likely to have, individually or in the aggregate, a material adverse effect on our consolidated financial position, results of operation or cash flows. Because of the uncertainty inherent in litigation, it is possible that unfavorable resolutions of these lawsuits, proceedings and claims could exceed the amount we have currently reserved for these matters.
 
Third parties have from time-to-time claimed, and others may claim in the future, that we have infringed their intellectual property rights. We have been notified of several potential patent disputes, and expect that we will increasingly be subject to patent infringement claims as our services expand in scope and complexity. We have in the past been forced to litigate such claims. We may also become more vulnerable to third-party claims as laws, such as the Digital Millennium Copyright Act, the Lanham Act and the Communications Decency Act are interpreted by the courts and as we expand geographically into jurisdictions where the underlying laws with respect to the potential liability of online intermediaries like ourselves are either unclear or less favorable. These claims, whether meritorious or not, could be time consuming and costly to resolve, cause service upgrade delays, require expensive changes in our methods of doing business, or could require us to enter into costly royalty or licensing agreements.


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DIGITAL RIVER, INC.
 
Notes to Consolidated Financial Statements — (Continued)
 
Indemnification Provisions
 
In the ordinary course of business we have included limited indemnification provisions in certain of our agreements with parties with whom we have commercial relations. Under these contracts, we generally indemnify, hold harmless and agree to reimburse the indemnified party for losses suffered or incurred by the indemnified party in connection with claims by any third party with respect to our domain names, trademarks, logos and other branding elements to the extent that such marks are applicable to our performance under the subject agreement. In a limited number of agreements, including agreements under which we have developed technology for certain commercial parties, we have provided an indemnity for other types of third-party claims. To date, no significant costs have been incurred, either individually or collectively, in connection with our indemnification provisions.
 
In addition, we are required by our processors to comply with credit card association operating rules, and we have agreed to indemnify our processors for any fines they are assessed by credit card associations as a result of processing payments for us. The credit card associations and their member banks set and interpret the credit card rules. Visa, MasterCard, American Express, or Discover could adopt new operating rules or re-interpret existing rules that we or our processors might find difficult to follow. We have had payment processing agreements with certain of our payment processors terminated due to violations of their rules. We also could be subject to fines or increased fees from MasterCard and Visa.
 
8.   Long-Term Debt:
 
On June 1, 2004, we sold and issued $175 million in aggregate principal amount of 1.25% convertible senior notes due January 1, 2024, in a private, unregistered offering. The notes were subsequently registered for resale. The notes were sold at 100% of their principal amount. The initial purchasers exercised in full their option to purchase up to an additional $20 million in aggregate principal amount of the notes on June 30, 2004, which purchase transaction closed on July 6, 2004.
 
We are required to pay interest on the notes on January 1 and July 1 of each year beginning January 1, 2005. The notes bear interest at a rate of 1.25% and, if specified conditions are met, are convertible into our common stock at a conversion price of $44.063 per share. The notes may be surrendered for conversion under certain circumstances, including the satisfaction of a market price condition, such that the price of our common stock reaches a specified threshold; the satisfaction of a trading price condition, such that the trading price of the notes falls below a specified level; the redemption of the notes by us, the occurrence of specified corporate transactions, as defined in the related indenture; and the occurrence of a fundamental change, as defined in the related indenture. The initial conversion price is equivalent to a conversion rate of approximately 22.6948 shares per $1,000 of principal amount of the notes. We will adjust the conversion price if certain events occur, as specified in the related indenture, such as the issuance of our common stock as a dividend or distribution or the occurrence of a stock subdivision or combination. If a fundamental change, such as a change in our control, as defined in the related indenture, occurs on or before January 1, 2009, we also may be required to purchase the notes for cash and pay an additional make-whole premium payable in our common stock, or in the same form of consideration into which all, or substantially all, of the shares of our common stock have been converted or exchanged in connection with the fundamental change, upon the repurchase or conversion of the notes in connection with the fundamental change. Holders of the notes have the right to require us to repurchase their notes prior to maturity on January 1, 2009, 2014 and 2019. We have the right to redeem the notes, under certain circumstances, on or after July 1, 2007, and prior to January 1, 2009, and we may redeem the notes at anytime on or after January 1, 2009.
 
A portion of the net proceeds of the offering was used to repay our senior secured revolving credit facility with Harris Trust and Savings Bank. The balance is being used for general corporate purposes, including working capital, capital expenditures, potential future acquisitions, investments, and the potential repurchase of shares of our common stock.


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DIGITAL RIVER, INC.
 
Notes to Consolidated Financial Statements — (Continued)
 
We incurred interest expense of $2.4 million in 2007 and made interest payments of $2.4 million. We incurred interest expense of $2.5 million in 2006 and made interest payments of $2.4 million. We incurred interest expense of $2.5 million in 2005 and made interest payments of $2.6 million.
 
9.   Stockholders’ Equity:
 
Share Repurchase Program
 
In June 2007, the Board of Directors authorized a new share repurchase program of up to $200.0 million of our outstanding shares of common stock. This new program supersedes and replaces the $50.0 million share repurchase program adopted in 2005. Under the new program, the shares may be repurchased in the open market or in privately negotiated transactions. Repurchases are at our discretion based on ongoing assessments of the capital needs of the business, the market price of our common stock and general market conditions. No time limit was set for the completion of the repurchase program. During 2007, we repurchased 1,372,185 shares for $63.0 million. During 2005, we repurchased a total of 483,371 shares at a weighted average price per share of $27.20. No shares were repurchased during 2006. None of the repurchased shares have been retired. See Note 12 for Subsequent Events
 
10.   Employee Benefit Plans:
 
Option and Restricted Stock Awards
 
2007 Plan
 
Our stockholders approved the Digital River, Inc. 2007 Equity Incentive Plan (the “2007 Plan”) at the Company’s annual stockholder meeting held on May 31, 2007. The number of shares issuable under the 2007 Plan equals 2,000,000 shares of our common stock. In addition, shares not issued under the 1998 Plan shall become available for issuance under the 2007 Plan to the extent a stock option or other stock award under the 1998 Plan expires or terminates before shares of common stock are issued under the award. Under our 2007 Equity Incentive Plan we have the flexibility to grant incentive and non-statutory stock options, restricted stock awards, restricted stock unit awards and performance shares to our directors, employees, and consultants.
 
1998 Plan
 
Under our 1998 Equity Incentive Plan, as amended and restated (the “1998 Plan”), we have the flexibility to grant incentive and non-statutory stock options, restricted stock awards, restricted stock unit awards and performance shares to our directors, employees, and consultants.
 
General Stock Award Information
 
As of December 31, 2007, there were 848,728 and 2,000,000 shares available for future awards under our 1998 Plan and 2007 Plan, respectively. The number of shares available has been reduced by three shares for every two shares granted under the stock award plan that does not provide for full payment by the participant.
 
Options granted to employees typically expire no later than ten years after the date of grant. Incentive stock option grants must have an exercise price of at least 100% of the fair market value of a share of common stock on the grant date. Incentive stock options granted to employees who, immediately before such grant, owned stock directly or indirectly representing more than 10% of the voting power of our stock, will have an exercise price of 110% of the fair market value of a share of common stock on the grant date and will expire no later than five years from the date of grant. The 1998 Plan also provides for other stock-based awards as may be established by the Board of Directors or the Compensation Committee.


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DIGITAL RIVER, INC.
 
Notes to Consolidated Financial Statements — (Continued)
 
A Summary of the changes in outstanding options is as follows:
 
                                 
                      Weighted
 
    Shares
          Options
    Average
 
    Available
    Options
    Price
    Price
 
    for Grant     Outstanding     per Share     per Share  
 
Balance, December 31, 2004
    2,454,543       5,716,540     $ 1.69-$31.13     $ 13.94  
Granted
    (846,678 )     846,678       23.90 - 30.69       28.15  
Exercised
            (1,719,114 )     1.69 - 30.69       13.50  
Canceled/expired
    320,719       (320,719 )     3.88 - 27.40       15.15  
                                 
Balance, December 31, 2005
    1,928,584       4,523,385     $ 2.59-$31.13     $ 16.69  
Granted
    (395,000 )     395,000       29.75 - 57.36       38.64  
Restricted stock effect on shares available for grant
    (134,250 )     N/A       N/A       N/A  
Exercised
            (1,219,736 )     2.59 - 45.24       17.31  
Canceled/expired
    140,866       (140,866 )     2.59 - 30.69       22.57  
                                 
Balance, December 31, 2006
    1,540,200       3,557,783     $ 2.59-$57.36     $ 18.68  
Granted
    (573,376 )     573,376       45.07 - 56.61       54.17  
Restricted stock effect on shares available for grant
    (251,426 )     N/A       N/A       N/A  
Exercised
            (1,219,519 )     2.59 - 45.24       11.08  
Canceled/expired
    133,330       (133,330 )     4.56 - 56.61       38.01  
Additional Shares Reserved
    2,000,000       N/A       N/A       N/A  
                                 
Balance, December 31, 2007
    2,848,728       2,778,310     $ 2.59-$57.36     $ 28.41  
                                 
 
The following table summarizes significant ranges of outstanding and exercisable options under our 1998 Plan as of December 31, 2007:
 
                                                             
      Options Outstanding     Options Exercisable  
            Weighted
    Weighted
    Aggregate
          Weighted
    Aggregate
 
      Number
    Average
    Average
    Intrinsic
    Number
    Average
    Intrinsic
 
Exercise Price     Outstanding     Life Remaining     Price     Value     Exercisable     Price     Value  
 
  $ 2.59 - $ 3.88       19,187       3.0 years     $ 2.74     $ 581,847       19,187     $ 2.74     $ 581,847  
  4.56 - 7.55       222,358       3.5 years       5.55       6,119,206       222,358       5.55       6,119,206  
  9.12 - 13.92       502,250       4.8 years       11.75       10,708,396       421,904       11.91       8,927,125  
  16.72 - 22.98       470,914       5.8 years       22.35       5,049,596       423,324       22.58       4,441,701  
  23.01 - 30.69       720,304       7.2 years       27.89       3,731,841       377,773       27.60       2,066,079  
  33.58 - 57.36       843,297       8.9 years       48.77             198,223       46.02        
                                                             
  $ 2.59 - $57.36       2,778,310       6.7 years     $ 28.41     $ 26,190,886       1,662,769     $ 21.30     $ 22,135,958  
                                                             
 
The aggregate intrinsic value in the preceding table represents the total pretax intrinsic value, based on options with an exercise price less than the Company’s closing stock price of $33.07 as of December 31, 2007, which would have been received by the option holders had those option holders exercised their options as of that date. The total intrinsic value of options exercised during the twelve months ended December 31, 2007, 2006 and 2005 were $48.9 million, $38.6 million and $41.4 million, respectively, determined as of the date of exercise. The weighted average life remaining on exercisable options is 5.7 years.
 
Restricted stock awards are subject to forfeiture if employment terminates prior to the release of the restrictions. During the vesting period, ownership of the shares cannot be transferred. Restricted stock is considered issued and outstanding at the grant date and has the same dividend and voting rights as other


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Table of Contents

 
DIGITAL RIVER, INC.
 
Notes to Consolidated Financial Statements — (Continued)
 
common stock. A summary of the changes in restricted stock under our 1998 Plan as of December 31, 2007 is as follows:
 
                 
          Weighted
 
    Restricted
    Average
 
    Stock     Fair Value  
 
Non-Vested Balance, December 31, 2005
        $  
Granted
    89,500       39.96  
Vested