Common use of Capital Stock, Warrants and Warrant Shares Clause in Contracts

Capital Stock, Warrants and Warrant Shares. (a) The authorized Capital Stock of ACI consists of (i) 70,000,000 shares of common stock, par value $0.005, of ACI (“ACI Common Stock”) and (ii) 5,000,000 shares of preferred stock, par value $0.01, of ACI (“ACI Preferred Stock”). As of December 12, 2007, (1) 35,675,884 shares of ACI Common Stock were issued and outstanding and no shares of ACI Preferred Stock were issued and outstanding, (2) 5,145,632 shares of ACI Common Stock were held in the treasury of ACI and (3) 3,893,404 shares of ACI Common Stock were reserved for issuance upon (x) exercise of then-outstanding options to purchase ACI Common Stock and (y) payout of shares of ACI Common Stock pursuant to then-outstanding performance share awards based on targeted award amounts, including options and performance shares granted to officers, directors or employees of ACI pursuant to ACI’s incentive plans. Since December 12, 2007, other than upon exercise of options included in clause (3) of the immediately preceding sentence, (x) no shares of Capital Stock of ACI have been issued and (y) no options, warrants, securities convertible into, or commitments with respect to the issuance of shares of Capital Stock of ACI have been issued, granted or made. (b) Except as set forth in Section 2.02(a), as of the date hereof, there are no outstanding subscriptions, options, calls, contracts, commitments, restrictions, arrangements, rights or warrants, including any right of conversion or exchange under any outstanding security, instrument or other agreement and also including any rights plan, obligating ACI or any Subsidiary of ACI to issue, deliver or sell, or to cause to be issued, delivered or sold, additional shares of the Capital Stock of ACI or obligating ACI or any of its Subsidiaries to grant, extend or enter into any such agreement or commitment. There are no outstanding stock appreciation rights or similar derivative securities or rights issued by ACI or any of its Subsidiaries or to which ACI or any of its Subsidiaries is a party. (c) Each of the Warrants and the Warrant Shares have been duly authorized. When the Warrant Shares are issued and delivered in accordance with the terms of the respective Warrant Agreement, such Warrant Shares will have been validly issued and will be fully paid and nonassessassable and free from all taxes, liens, claims and encumbrances, and the issuance thereof will not have been subject to any purchase option, right of first refusal, subscription right or preemptive right or made in contravention of the Amended and Restated Certificate of Incorporation of ACI, as in effect on the date hereof (the “ACI Charter”) or the Amended and Restated Bylaws of ACI, as in effect on the date hereof (the “ACI Bylaws”) or any Applicable Law. (d) ACI has reserved solely for issuance and delivery, upon the exercise of the Warrants, the number of shares of ACI Common Stock that would be issuable if the Warrants were exercised in full immediately after the execution and delivery of the Warrant Agreements. (e) Neither ACI, nor any of its Affiliates, nor any Person acting on its or their behalf, has directly or indirectly made any offers or sales of any security or solicited any offers to buy any security under circumstances that would require registration, or the filing of a prospectus qualifying the distribution, of the Warrants being issued pursuant to the Warrant Agreements under the Securities Act or cause the issuance of the Warrants to be integrated with any prior offering of securities of ACI for purposes of the Securities Act. (f) IBM will, upon issuance of the Warrant Shares, have the rights set forth in the Warrant Agreements and under the General Corporation Law of the State of Delaware. (g) Except for registration of securities on Form S-8 pursuant to employee compensation and incentive plans of ACI, there are no agreements or plans in effect on the date of this Agreement pursuant to which ACI has agreed to register any of its securities under the Securities Act.

Capital Stock, Warrants and Warrant Shares. (a) The authorized Capital Stock of ACI consists of (i) 70,000,000 shares of common stock, par value $0.005, of ACI (“ACI Common Stock”) and (ii) 5,000,000 shares of preferred stock, par value $0.01, of ACI (“ACI Preferred Stock”). As of December 12, 2007, (1) 35,675,884 shares of ACI Common Stock were issued and outstanding and no shares of ACI Preferred Stock were issued and outstanding, (2) 5,145,632 shares of ACI Common Stock were held in the treasury of ACI and (3) 3,893,404 shares of ACI Common Stock were reserved for issuance upon (x) exercise of then-outstanding options to purchase ACI Common Stock and (y) payout of shares of ACI Common Stock pursuant to then-outstanding performance share awards based on targeted award amounts, including options and performance shares granted to officers, directors or employees of ACI pursuant to ACI’s incentive plans. Since December 12, 2007, other than upon exercise of options included in clause (3) of the immediately preceding sentence, (x) no shares of Capital Stock of ACI have been issued and (y) no options, warrants, securities convertible into, or commitments with respect to the issuance of shares of Capital Stock of ACI have been issued, granted or made. . (b) Except as set forth in Section 2.02(a), as of the date hereof, there are no outstanding subscriptions, options, calls, contracts, commitments, restrictions, arrangements, rights or warrants, including any right of conversion or exchange under any outstanding security, instrument or other agreement and also including any rights plan, obligating ACI or any Subsidiary of ACI to issue, deliver or sell, or to cause to be issued, delivered or sold, additional shares of the Capital Stock of ACI or obligating ACI or any of its Subsidiaries to grant, extend or enter into any such agreement or commitment. There are no outstanding stock appreciation rights or similar derivative securities or rights issued by ACI or any of its Subsidiaries or to which ACI or any of its Subsidiaries is a party. (c) Each of the Warrants and the Warrant Shares have been duly authorized. When the Warrant Shares are issued and delivered in accordance with the terms of the respective Warrant Agreement, such Warrant Shares will have been validly issued and will be fully paid and nonassessassable and free from all taxes, liens, claims and encumbrances, and the issuance thereof will not have been subject to any purchase option, right of first refusal, subscription right or preemptive right or made in contravention of the Amended and Restated Certificate of Incorporation of ACI, as in effect on the date hereof (the “ACI Charter”) or the Amended and Restated Bylaws of ACI, as in effect on the date hereof (the “ACI Bylaws”) or any Applicable Law. (d) ACI has reserved solely for issuance and delivery, upon the exercise of the Warrants, the number of shares of ACI Common Stock that would be issuable if the Warrants were exercised in full immediately after the execution and delivery of the Warrant Agreements. (e) Neither ACI, nor any of its Affiliates, nor any Person acting on its or their behalf, has directly or indirectly made any offers or sales of any security or solicited any offers to buy any security under circumstances that would require registration, or the filing of a prospectus qualifying the distribution, of the Warrants being issued pursuant to the Warrant Agreements under the Securities Act or cause the issuance of the Warrants to be integrated with any prior offering of securities of ACI for purposes of the Securities Act. (f) IBM will, upon issuance of the Warrant Shares, have the rights set forth in the Warrant Agreements and under the General Corporation Law of the State of Delaware. (g) Except for registration of securities on Form S-8 pursuant to employee compensation and incentive plans of ACI, there are no agreements or plans in effect on the date of this Agreement pursuant to which ACI has agreed to register any of its securities under the Securities Act.