THIS AGREEMENT AND THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY.
3.4.
NO VIOLATIONS.
ASSUMING THE ACCURACY OF THE
REPRESENTATIONS OF THE DTI STOCKHOLDERS SET FORTH HEREIN, TITAN AND ACQUISITION
SUB'S EXECUTION AND DELIVERY OF THIS AGREEMENT AND PERFORMANCE BY IT OF ITS
OBLIGATIONS UNDER THIS AGREEMENT DO NOT (A) VIOLATE ANY PROVISION OF THE
CERTIFICATE OF INCORPORATION OR BY-LAWS OF TITAN OR ACQUISITION SUB, (B)
CONFLICT WITH, RESULT IN A BREACH OF, CONSTITUTE A DEFAULT UNDER (OR AN EVENT
THAT, WITH NOTICE OR LAPSE OF TIME OR BOTH, WOULD CONSTITUTE A DEFAULT UNDER),
ACCELERATE THE PERFORMANCE REQUIRED BY, RESULT IN THE CREATION OF ANY LIEN UPON
ANY OF THE PROPERTIES OR ASSETS OF TITAN OR ACQUISITION SUB UNDER, OR CREATE IN
ANY PARTY THE RIGHT TO ACCELERATE, TERMINATE, MODIFY, OR CANCEL, OR REQUIRE ANY
NOTICE UNDER, ANY CONTRACT TO WHICH TITAN OR ACQUISITION SUB IS A PARTY OR BY
WHICH ANY PROPERTIES OR ASSETS OF TITAN OR ACQUISITION SUB ARE BOUND, OR (C)
VIOLATE ANY LAW OR ORDER CURRENTLY IN EFFECT TO WHICH TITAN OR ACQUISITION SUB
IS SUBJECT, IN EACH CASE WHERE SUCH CONFLICT, BREACH OR VIOLATION WOULD HAVE A
MATERIAL ADVERSE EFFECT ON TITAN OR ACQUISITION SUB.
ARTICLE 4.
INDEMNIFICATION
4.1.
INDEMNIFICATION.
SUBJECT TO THE LIMITATIONS
OF SECTIONS 4.2 AND 4.3 HEREOF:
(A)
THE FOUNDERS JOINTLY AND SEVERALLY AGREE TO
INDEMNIFY, DEFEND AND HOLD TITAN AND ITS AFFILIATES, SUBSIDIARIES (INCLUDING THE
SURVIVING CORPORATION), OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS THEREOF
(COLLECTIVELY, THE "TITAN INDEMNIFIED PARTIES") HARMLESS FROM AND AGAINST AND IN
RESPECT OF ANY AND ALL OUT-OF-POCKET LOSS, COST, EXPENSE, LIABILITY OR CLAIM
(INCLUDING REASONABLE ATTORNEYS' FEES AND OTHER COSTS AND EXPENSES) (ALL OF THE
FOREGOING COLLECTIVELY, "LOSSES"), RESULTING FROM OR ARISING IN CONNECTION WITH
ANY MATERIAL MISREPRESENTATION OR MATERIAL BREACH OF WARRANTY ON THE PART OF DTI
OR THE FOUNDERS UNDER THE TERMS OF THIS AGREEMENT. FOR PURPOSES OF THIS
AGREEMENT, LOSSES SHALL SPECIFICALLY EXCLUDE ANY SPECIAL, INCIDENTAL, INDIRECT,
CONSEQUENTIAL OR SIMILAR DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR
INDIRECT LOSS OF PROFITS, LOSS OF BUSINESS REPUTATION OR THE LIKE).
(B)
TITAN AGREES TO INDEMNIFY, DEFEND AND HOLD
THE FOUNDERS AND DTI (THE "DTI INDEMNIFIED PARTIES") HARMLESS FROM AND AGAINST
ANY AND ALL LOSSES RESULTING FROM ANY MISREPRESENTATION OR BREACH OF WARRANTY OR
COVENANT ON THE PART OF TITAN OR ACQUISITION SUB UNDER THE TERMS OF THIS
AGREEMENT OR IN ANY CERTIFICATE DELIVERED HEREUNDER OR PURSUANT HERETO OR
NON-FULFILLMENT OF ANY AGREEMENT ON THE PART OF TITAN UNDER THE TERMS OF THIS
AGREEMENT.
9
4.2.
LIMITATION ON LIABILITY AND RECOURSE.
(A)
WITH RESPECT TO ANY CLAIM FOR
INDEMNIFICATION UNDER THIS AGREEMENT, NEITHER THE FOUNDERS, ON THE ONE HAND, NOR
TITAN, ON THE OTHER HAND, SHALL BE LIABLE TO THE OTHER FOR INDEMNIFICATION
UNLESS THE AGGREGATE AMOUNT OF THE DAMAGES INCURRED BY THE OTHER AS A RESULT OF
SUCH BREACH EXCEEDS THE SUM OF $100,000 (WHEREUPON SUCH PARTY SHALL BE LIABLE
FOR THE AMOUNT OF SUCH DAMAGES IN EXCESS OF $100,000).
(B)
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO