Common use of Conditions to the Obligations of Parent Clause in Contracts

Conditions to the Obligations of Parent. The obligations of Parent to consummate the Transaction are subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by Parent) of the following further conditions: (a) The Company shall have performed, in all material respects, all of its obligations hereunder required to be performed by it at or prior to the Closing; (b) (i) the representations and warranties of the Company contained in Section 4.01 (other than the third, fourth and sixth sentences therein), Section 4.02, Section 4.05(c) (other than the last sentence therein), Section 4.06(b), Section 4.25, Section 4.26 and Section 4.27 (A) in the case of any such representations and warranties that are qualified by materiality or Material Adverse Effect in the text thereof, shall be true and correct in all respects, and (B) in the case of any such representations and warranties that are not so qualified, shall be true and correct in all material respects, in the case of each of clauses (A) and (B), at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (ii) the representations and warranties of the Company contained in Section 4.05(a) shall be true and correct at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except for any de minimis inaccuracies, (iii) the representations and warranties of the Company contained in Section 4.09(b) shall be true and correct in all respects at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of the Company contained in Article IV (disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect) shall be true and correct at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except, in the case of this clause (iv) only, where the failure of such representations and warranties to be true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; (c) since the date of this Agreement, there shall not have occurred a Material Adverse Effect; and (d) Parent shall have received a certificate from an executive officer of the Company confirming the satisfaction of the conditions set forth in Section 9.02(a) and Section 9.02(b).

Conditions to the Obligations of Parent. The obligations obligation of Parent to consummate the Transaction are Merger is subject to the satisfaction (orfulfillment at or prior to the Effective Time of the following conditions, any or all of which may be waived in whole or in part by Parent to the extent permitted by Applicable Law, waiver by Parent) of the following further conditionsapplicable law: (a) The Company shall have performed, in all material respects, all of its obligations hereunder required to be performed by it at or prior to the Closing; (b) (i) the representations and warranties of the Company contained set forth in Section 4.01 (other than the third, fourth and sixth sentences therein), Section 4.02, Section 4.05(c) (other than the last sentence therein), Section 4.06(b), Section 4.25, Section 4.26 and Section 4.27 (A) in the case of any such representations and warranties 5.2 that are qualified by as to materiality or Material Adverse Effect Effect, or in the text thereofSections 5.2(a), (b) or (d) shall be true and correct in all respects, and (B) in the case of any such representations and warranties those that are not so qualified, qualified shall be true and correct in all material respects, in each case as of the case date of each of clauses (A) and (B)this Agreement, at and as of the Closing Effective Time with the same force and effect as if made at on and as of the Closing Effective Time (or, if such representations and warranties are given except to the extent expressly made as of another specific an earlier date, at and as of such date); (ii) the representations and warranties of the Company contained in Section 4.05(a) shall be true and correct at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and which case as of such date), in each case except as permitted or contemplated by this Agreement (it being understood that for any de minimis inaccuracies, (iii) purposes of determining the representations and warranties of the Company contained in Section 4.09(b) shall be true and correct in all respects at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of the Company contained in Article IV (disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect) shall be true and correct at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except, in the case of this clause (iv) only, where the failure accuracy of such representations or warranties any update or modifications to the Company's Disclosure Schedule made or purported to have been made without Parent's written consent thereto shall be disregarded); (b) the Company shall have performed or complied with in all material respects its agreements and warranties covenants required to be true and correct has not had and would not reasonably be expected performed or complied with under this Agreement as of or prior to have, individually or in the aggregate, a Material Adverse EffectEffective Time; (c) since the date Company shall have delivered to Parent a certificate of its Chief Executive Officer and Chief Financial Officer to the effect that each of the conditions specified in Section 7.1 and clauses (a) and (b) of this Section 7.3 has been satisfied in all respects; (d) the employment of those employees who executed the Employment Agreements shall not have been terminated; (e) Prior to the Effective Time, each Company Option, other than In the Money Options, In the Money Director Options and the Out of the Money Options, shall have been terminated. To the extent the option agreement or option plan governing any Company Option does not currently permit the Company to take any of the actions, or have the effect upon consummation of the Merger, contemplated by Section 4.1(c) or the -41- foregoing sentence of this Section 7.3(e), the Company shall have entered into agreements with the holders of such Company Options which allow the Company to take the actions, or have the effect upon consummation of the Merger, contemplated by Section 4.1(c) or the foregoing sentence of this Section 7.3(e), which agreements shall be in a form reasonably acceptable to Parent; (f) Each holder of a Company Warrant shall have executed all such consents or agreements as may be required or necessary (i) pursuant to the terms of such warrant in order to consummate the Merger and convert such warrant into a Substitute Warrant, and (ii) to waive (A) the obligation to maintain the effectiveness of a registration statement for the shares issuable upon exercise of such Substitute Warrant during the twenty (20) day period commencing at the Effective Time, or (B) any penalties resulting from the failure to maintain such effectiveness during such period, which consent or agreement shall be in form reasonably acceptable to Parent; (g) The Company shall have executed a Credit Agreement, in a form reasonably acceptable to the Parent, providing the Company and its Subsidiaries with financing for its U.S. operations on terms and conditions at least as favorable to the Company and its Subsidiaries as those terms and conditions set forth in the term sheet attached hereto as Exhibit C (the "Senior Credit Agreement"); (h) All conditions to the funding under the Senior Credit Agreement shall have been satisfied, no defaults or events of default under the Senior Credit Agreement shall exist and no event shall have occurred that, with the passage of time, the giving of notice or both, would constitute a default or event of default under the Senior Credit Agreement; (i) The holders of the series of promissory notes dated May 26, 2000 for an aggregate principal amount of $6,175,000 (the "Bridge Notes") and the warrants to purchase Company Shares issued in connection with the issuance of the Bridge Notes or the extension thereof (the "Bridge Notes') shall have entered into an agreement with the Company, in a form reasonably acceptable to Parent and on terms and conditions at least as favorable, in the aggregate, to the Company and its Subsidiaries as those terms and conditions set forth in the term sheet attached hereto as Exhibit D; (j) The Company's French Subsidiaries, RoweCom Reala and RoweCom France SAS, shall have obtained a credit facility on the terms and conditions at least as favorable, in the aggregate, to such Subsidiaries as those contained in such financing documents for the 2000-2001 subscription year, including, without limitation, those terms set forth on Exhibit E, pursuant to agreements in forms reasonably acceptable to Parent, and there shall not exist any defaults or events of default under such credit facility as of the Effective Time, and no event shall have occurred, including but not limited to, the consummation of any transaction contemplated hereby, which with the passage of time, the giving of notice or both would constitute such a default or event of default and all conditions to the funding of such credit facility set forth in such agreement shall have been satisfied; (k) The Company shall have received declaratory relief from a court of competent jurisdiction that the sole owner of RoweCom UK Ltd., a company organized under the laws of Great Britain, is RoweCom Global Holdings Ltd., a company organized under the laws of the British Virgin Islands; and (l) The compensation committee of the board of directors of the Company shall have approved the mailing of a notice to the holders of the Out of the Money Options of their right, upon consummation of the Merger, to exercise their Out of the Money Options and the termination of such Out of the Money Options in the event such Out of the Money Options is not exercised in accordance with terms of such notice. (m) The Company shall have received all consents, waivers, authorizations necessary to provide for the continuation in full force and effect of at least fifty percent (50%) of the contracts and agreements listed on Exhibit F in accordance with the terms of such contracts or agreements in effect on date hereof. (n) RoweCom France SAS shall have obtained a waiver and amendment to its existing midterm loan with BNP Paribas and Credit Lyonnais (the "MidTerm Loan"), which waiver and amendment shall contain those modifications set forth on Exhibit G and shall be in form reasonably satisfactory to Parent, there shall not exist any defaults or events of default under the MidTerm Loan as of the Effective Time or arising as a result of the consummation of the transactions contemplated hereby and no event shall have occurred which with the passage of time, the giving of notice or both would constitute a Material Adverse Effect; and (d) Parent shall have received a certificate from an executive officer default or event of the Company confirming the satisfaction of the conditions set forth in Section 9.02(a) and Section 9.02(b)default.

Conditions to the Obligations of Parent. The obligations of Parent to consummate cause the Transaction Closing to occur are subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by Parent) of the following further conditions, any one or more of which may be waived in writing by Parent: (a) The Company shall have performed, in all material respects, all of its obligations hereunder required to be performed by it at or prior to the Closing; (b) (i) the representations and warranties Each of the Company contained in Section 4.01 (other than the third, fourth and sixth sentences therein), Section 4.02, Section 4.05(c) (other than the last sentence therein), Section 4.06(b), Section 4.25, Section 4.26 and Section 4.27 (A) in the case of any such representations and warranties that are qualified by materiality or Material Adverse Effect in the text thereof, shall be true and correct in all respects, and (B) in the case of any such representations and warranties that are not so qualified, Fundamental Buyer Representations shall be true and correct in all material respects, in respects at and as of the case date of each of clauses (A) this Agreement and (B), at and as of the Closing Date as if made at and as of the Closing Date (or, if other than such representations and warranties are given that expressly address matters only as of another specific specified date, at which need only be true and correct as of such date); ) and (ii) each of the other representations and warranties of the Company each Buyer contained in Section 4.05(a) Article V of this Agreement, without giving effect to materiality or other similar qualifications, shall be true and correct at and as of the date of this Agreement and at and as of the Closing Date as if made at and as of the Closing Date (or, if other than such representations and warranties are given that expressly address matters only as of another specific specified date, at which need only be true and correct as of such date), except for any de minimis inaccuracies, (iii) the representations and warranties of the Company contained in Section 4.09(b) shall be true and correct in all respects at and as of the Closing as if made at and as of the Closing; and (iv) the other representations and warranties of the Company contained in Article IV (disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect) shall be true and correct at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except, in the case of this clause (iv) only, where the failure of such representations and warranties to be so true and correct has not had and would not reasonably be expected to havenot, individually or in the aggregate, a Material Adverse Effectreasonably be expected to prevent or materially delay the ability of Buyers or Buyer Parent to enter into and perform its obligations under this Agreement or the other Transaction Documents or consummate the transactions contemplated hereby or thereby; (b) Each Buyer shall have performed and complied in all material respects with the covenants and agreements required by this Agreement to be performed or complied with by such Buyer on or before the Closing; and (c) since the date of this Agreement, there shall not have occurred a Material Adverse Effect; and (d) Parent Each Buyer shall have received a certificate from an executive officer of delivered to Parent or the Company confirming Deposit Escrow Agent, as applicable, the satisfaction of the conditions items and documents set forth in Section 9.02(a2.6(b) and Section 9.02(b)which are required to be delivered by such Buyer at the Closing.

Conditions to the Obligations of Parent. Merger Sub 1 and Merger Sub 2. The obligations of Parent Parent, Merger Sub 1 and Merger Sub 2 to consummate the Transaction Mergers are subject to the satisfaction (or, to the extent permitted by Applicable Law, waiver by Parent) of the following further conditions: (a) The the Company shall have performed, performed in all material respects, respects all of its obligations hereunder required to be performed by it at or prior to the ClosingFirst Merger Effective Time; (b) (i) the representations and warranties of the Company contained in Section 4.01 (other than the third, fourth and sixth sentences therein), Section 4.02, Section 4.05(c4.05(a) (other than the last sentence therein), Section 4.06(b), Section 4.25, Section 4.26 and Section 4.27 (A) in the case of any such representations and warranties that are qualified by materiality or Material Adverse Effect in the text thereof, shall be true and correct in all respectscorrect, subject only to de minimis exceptions, at and (B) in as of the case date of any such representations this Agreement and warranties that are not so qualified, shall be true and correct in all material respects, in the case of each of clauses (A) and (B), at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date); (ii) the representations and warranties of the Company contained in Section 4.05(a‎4.01 (other than the third sentence thereof), Section ‎4.02, ‎Section 4.04(i), ‎Section 4.06(b) (solely with respect to Major Subsidiaries of the Company), Section 4.27, Section ‎4.28 and Section ‎4.29 shall be true and correct in all material respects at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except for any de minimis inaccuracies, (iii) the representations and warranties of the Company contained in Section 4.09(b) shall be true and correct in all respects at and as of the Closing as if made at and as of the Closing; and (iviii) the other representations and warranties of the Company contained in Article IV (this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Company Material Adverse Effect) , shall be true and correct at and as of the date of this Agreement and at and as of the Closing as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except, in the case of this clause (iviii) only, where the failure of such representations and warranties to be true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (c) since the date of this Agreement, there shall not have occurred any event, change, effect, development or occurrence that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; and; (d) both (i) the early termination or expiration of the waiting period required under the HSR Act shall have occurred and (ii) the Company Required Governmental Authorizations and the Parent Required Governmental Authorizations set forth in Section 9.02(d) of the Parent Disclosure Schedule shall have been made or obtained and shall be in full force and effect and, in each case in this clause (d), shall not impose any term or condition that would have or would reasonably be expected to have, individually or in the aggregate, a Regulatory Material Adverse Effect on Parent or the Company; (e) Parent shall have received a certificate from an executive officer of the Company confirming the satisfaction of the conditions set forth in Section Sections 9.02(a), 9.02(b) and 9.02(c); (f) Parent shall have received an opinion of ▇▇▇▇▇ ▇▇▇▇ (or another nationally recognized law firm) substantially to the effect that (i) for U.S. federal income tax purposes the Mergers, taken together, will be treated as a reorganization within the meaning of Section 9.02(b368(a) of the Code and (ii) the Company and Parent will each be a “party to the reorganization” within the meaning of Section 368(b) of the Code. In rendering such opinion, ▇▇▇▇▇ ▇▇▇▇ shall be entitled to rely upon assumptions, representations, warranties and covenants, including those contained in this Agreement and in the Tax Representation Letters described in Section 8.13; and (g) (i) CMS shall not have imposed any sanction involving suspension of marketing, enrollment and/or payment (it being understood and agreed that the imposition of a civil monetary penalty that does not involve the suspension of payment will not be included in this clause (i)) under any Medicare Advantage Contract or Medicare Part D Contract to which the Company or any of its Subsidiaries is a party, (ii) CMS shall not have terminated any Medicare Advantage Contract or Medicare Part D Contract to which the Company or any of its Subsidiaries is a party and (iii) the Company or any of its Subsidiaries shall not have suspended enrollment or marketing under any Medicare Advantage Contract or Medicare Part D Contract to which the Company or any of its Subsidiaries is a party (each of the items in clauses (i), (ii) and (iii) of this Section 9.02(g), a “CMS Sanction”), in each case which CMS Sanction, individually or in the aggregate with any and all other CMS Sanctions, is, or would reasonably be expected to be, material and adverse to the Company and its Subsidiaries, taken as a whole (it being understood and agreed that, among other things, the impact (and the reasonably expected impact) on current or future stars rating, membership, revenue, stars bonus payments, open enrollment and earnings, as well as the impact (both positive and negative) (and the reasonably expected impact) of any remediation or other offsetting actions taken by the Company or any of its Subsidiaries (collectively, the “Relevant Factors”), shall be taken into account in determining if such CMS Sanction, individually or in the aggregate with any and all other CMS Sanctions, is, or would reasonably be expected to be, material and adverse to the Company and its Subsidiaries, taken as a whole).

Conditions to the Obligations of Parent. The obligations of Parent to consummate the Transaction Merger are subject to the satisfaction (or, to the extent permitted by Applicable Law, or waiver by Parent) in writing of the following further additional conditions: (a) The the Company and Merger Sub shall have performed, performed in all material respects, respects all of its their respective obligations hereunder required to be performed by it them at or prior to the ClosingEffective Time (except for the covenants set forth in Section 6.01, which shall have been complied with in all respects other than de minimis deviations); (b) (i) the representations and warranties of the Company and Merger Sub contained in Section 4.01 (other than the third, fourth and sixth sentences therein)4.05, Section 4.02, Section 4.05(c) (other than the last sentence therein), Section 4.06(b), Section 4.25, Section 4.26 4.06 and Section 4.27 (A4.10(a) in the case of any such representations and warranties that are qualified by materiality or Material Adverse Effect in the text thereof, shall be true and correct in all respects, and (B) in the case of any such representations and warranties that are not so qualified, shall be true and correct in all material respects, in the case of each of clauses (A) and (B), respects at and as of the Closing Effective Time as if made at and as of the Closing (orsuch time, if such representations and warranties are given as of another specific date, at and as of such date); (ii) the representations and warranties of the Company and Merger Sub contained in Section 4.05(a) 4.01, Section 4.02, Section 4.03, Section 4.22, Section 4.23, Section 4.24 and Section 4.25 shall be true and correct in all respects other than de minimis inaccuracies at and as of the Closing Effective Time as if made at and as of the Closing (or, if such representations and warranties are given as of another specific date, at and as of such date), except for any de minimis inaccuraciestime, (iii) the representations and warranties of the Company and Merger Sub contained in Section 4.09(b4.04(a) shall be true (disregarding all materiality and correct Company Material Adverse Effect qualifications contained therein) in all material respects at and as of the Closing Effective Time as if made at and as of such time (other than representations and warranties that by their terms address matters only as of another specified time, which shall be so true only as of such time; provided that for purposes of this parenthetical, clauses (a) and (c) of the Closing; first paragraph of Article 4 shall be disregarded), and (iv) the other representations and warranties of the Company and Merger Sub contained in Article IV this Agreement (disregarding all qualifications materiality and exceptions contained therein relating to materiality or Company Material Adverse EffectEffect qualifications contained therein) shall be true and correct in all respects at and as of the Closing Effective Time as if made at and as of the Closing such time (or, if such other than representations and warranties are given that by their terms address matters only as of another specific datespecified time, at and which shall be so true only as of such datetime; provided that for purposes of this parenthetical, clauses (a) and (c) of the first paragraph of Article 4 shall be disregarded), except, with only such exceptions in the case of this clause (iv) only, where the failure of such representations and warranties to be true and correct has as have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (c) since the date of this AgreementOriginal Agreement Date, there shall not have occurred a Company Material Adverse Effect; and; (d) Parent shall have received a certificate from signed by an executive officer of the Company confirming to the satisfaction of effect that the conditions set forth in Section 9.02(athe preceding clauses (a), (b) and (c) have been satisfied; (e) the transactions contemplated by Section 9.02(b)2.01 shall have been consummated; (f) no share of Company Capital Stock, or any holder thereof, shall be entitled to assert dissenter’s or appraisal rights pursuant to the Dissenter’s Rights Statutes or otherwise; (g) the Class A Common Stock (as will be defined in the Company A&R Articles of Incorporation) into which the Class B Common Stock (as defined in the Company’s Organizational Documents in effect on the Original Agreement Date) is redesignated pursuant to and in accordance with this Agreement and the Company A&R Articles of Incorporation, and such other shares of Company Common Stock to be reserved for issuance in connection with the Merger, shall have been approved for listing on Nasdaq, subject to official notice of issuance; and (h) Parent shall have received the Section 351 Tax Opinion.