TO PERFORM ITS
OBLIGATIONS UNDER THE
ALLIANCE AGREEMENTS.
SECTION 2.02.
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.
9
(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