2.07.
NO LITIGATION.
AS OF THE DATE HEREOF, THERE IS NO LITIGATION OR
OTHER PROCEEDING PENDING OR, TO THE KNOWLEDGE OF ACI, THREATENED AGAINST ACI OR
ANY OF ITS AFFILIATES WHICH, IF ADVERSELY DETERMINED, COULD REASONABLY BE
EXPECTED TO ADVERSELY AFFECT THE ABILITY OF ACI TO PERFORM ITS OBLIGATIONS
HEREUNDER OR UNDER ANY OF THE OTHER ALLIANCE AGREEMENTS.
SECTION 2.08.
FINANCIAL STATEMENTS.
THE AUDITED CONSOLIDATED FINANCIAL
STATEMENTS AND UNAUDITED CONSOLIDATED INTERIM FINANCIAL STATEMENTS OF ACI
INCLUDED IN THE REPORTS, SCHEDULES, FORMS, STATEMENTS AND OTHER DOCUMENTS FILED
WITH THE COMMISSION BY ACI SINCE JANUARY 1, 2007 FAIRLY PRESENT, IN ALL MATERIAL
RESPECTS, THE CONSOLIDATED FINANCIAL POSITION OF ACI AND ITS SUBSIDIARIES AS OF
THE DATES THEREOF AND THEIR CONSOLIDATED RESULTS OF OPERATIONS AND CASH FLOWS
FOR THE PERIODS THEN ENDED (SUBJECT TO, IN THE CASE OF UNAUDITED INTERIM
FINANCIAL STATEMENTS, NORMAL YEAR END ADJUSTMENTS).
SECTION 2.09.
ACI SOFTWARE.
(A)
FOLLOWING OPTIMIZATION PURSUANT TO THE ENABLEMENT ASSISTANCE AGREEMENT, THE
ACI SOFTWARE SHALL SUBSTANTIALLY COMPLY WITH THE SPECIFICATIONS AND REQUIREMENTS
SET FORTH IN THE ENABLEMENT ASSISTANCE AGREEMENT.
(B)
FOLLOWING OPTIMIZATION PURSUANT TO THE ENABLEMENT ASSISTANCE AGREEMENT, THE
ACI SOFTWARE THAT INTERACTS IN ANY CAPACITY WITH MONETARY DATA THAT IS REQUIRED
TO BE EURO-READY AT SUCH TIME OF USE SHALL BE EURO-READY SUCH THAT WHEN USED IN
ACCORDANCE WITH ITS ASSOCIATED DOCUMENTATION IT IS CAPABLE OF CORRECTLY
PROCESSING MONETARY DATA IN THE EURO DENOMINATION AND RESPECTING THE EURO
CURRENCY FORMATTING CONVENTIONS (INCLUDING THE EURO SIGN).
(C)
THE ACI SOFTWARE AND DELIVERABLES FURNISHED BY ACI PURSUANT TO THE
ENABLEMENT ASSISTANCE AGREEMENT, PRIOR TO ITS USE ON ANY SYSTEM OR OTHER MEDIUM
IN CONNECTION WITH THE ENABLEMENT ASSISTANCE AGREEMENT, SHALL BE TESTED (IN
ACCORDANCE WITH ACI'S APPLICABLE TESTING STANDARDS) FOR, AND WILL NOT, TO ACI'S
KNOWLEDGE, CONTAIN, HARMFUL CODE.
11
SECTION 2.10.
PERFORMANCE OF SERVICES.
ACI SHALL PERFORM THE SERVICES USING
REASONABLE CARE AND SKILL AND IN ACCORDANCE WITH THE ENABLEMENT ASSISTANCE
AGREEMENT.
SECTION 2.11.
GENERAL.
EXCEPT AS EXPRESSLY SET FORTH IN ANY
ALLIANCE
AGREEMENT, ACI EXPRESSLY DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES OF
NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
EXCEPT
AS EXPRESSLY SET FORTH IN ANY ALLIANCE AGREEMENT, ANY ACI SOFTWARE, SERVICES OR
DELIVERABLES AND OTHER ITEMS FURNISHED BY ACI PURSUANT TO THE ENABLEMENT
ASSISTANCE AGREEMENT OR ANY OTHER ALLIANCE AGREEMENT ARE PROVIDED ON AN "AS IS"
BASIS.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF IBM
IBM hereby represents and warrants to ACI that:
SECTION 3.01.
ORGANIZATION AND STANDING.
IBM (A) IS A CORPORATION DULY
INCORPORATED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE STATE
OF NEW YORK AND (B) HAS ALL REQUISITE POWER AND AUTHORITY TO CONDUCT ITS
BUSINESS AS NOW CONDUCTED AND AS PRESENTLY CONTEMPLATED AND TO PERFORM ITS
OBLIGATIONS UNDER THE ALLIANCE AGREEMENTS.
SECTION 3.02.
WARRANTS AND WARRANT SHARES.
(A)
THE WARRANTS WILL BE ACQUIRED FOR IBM'S OWN ACCOUNT FOR INVESTMENT PURPOSES
AND NOT WITH A VIEW TO ANY OFFERING OR DISTRIBUTION WITHIN THE MEANING OF THE
SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS.