OR FORUM NON CONVENIENS, OR SIMILAR RULES OR DOCTRINES, AND (III) IRREVOCABLY
AGREE THAT ALL CLAIMS IN RESPECT OF SUCH AN ACTION OR PROCEEDING MAY BE HEARD
AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURT.
THE RAINBOW PARTIES AND
FOX PARTIES HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.
SECTION 11.9
SEVERABILITY.
THE PARTIES STIPULATE
THAT THE TERMS AND PROVISIONS OF THIS AGREEMENT ARE FAIR AND REASONABLE AS OF
THE DATE OF THIS AGREEMENT.
HOWEVER, IF ANY PROVISION OF THIS AGREEMENT IS
DETERMINED BY A COURT OF COMPETENT JURISDICTION OR A GOVERNMENTAL AUTHORITY TO
BE INVALID, VOID OR UNENFORCEABLE, THE REMAINDER OF THE TERMS, PROVISIONS,
COVENANTS AND RESTRICTIONS OF THIS AGREEMENT SHALL REMAIN IN FULL FORCE AND
EFFECT AND SHALL IN NO WAY BE AFFECTED, IMPAIRED OR INVALIDATED.
IF, MOREOVER,
ANY OF THOSE PROVISIONS SHALL FOR ANY REASON BE DETERMINED BY A COURT OF
COMPETENT JURISDICTION TO BE UNENFORCEABLE BECAUSE EXCESSIVELY BROAD OR VAGUE AS
TO DURATION, GEOGRAPHICAL SCOPE, ACTIVITY OR SUBJECT, IT SHALL BE CONSTRUED BY
LIMITING, REDUCING OR DEFINING IT, SO AS TO BE ENFORCEABLE.
SECTION 11.10
BENEFIT.
EXCEPT WITH RESPECT TO THE
TRANSFERRED EMPLOYEES UNDER SECTION 8.8 AND INDEMNIFIED PARTIES UNDER ARTICLE
10, NOTHING IN THIS AGREEMENT, EXPRESS OR IMPLIED, IS INTENDED OR SHALL BE
CONSTRUED TO CONFER UPON OR GIVE TO ANY PERSON, FIRM OR CORPORATION OTHER THAN
THE PARTIES HERETO ANY REMEDY OR CLAIM UNDER OR BY REASON OF THIS AGREEMENT OR
ANY TERM, COVENANT OR CONDITION HEREOF, ALL OF WHICH SHALL BE FOR THE SOLE AND
EXCLUSIVE BENEFIT OF THE PARTIES HERETO.
SECTION 11.11
NON-RECOURSE.
NOTWITHSTANDING ANYTHING
CONTAINED IN THIS AGREEMENT TO THE CONTRARY, IT IS EXPRESSLY UNDERSTOOD AND
AGREED BY THE PARTIES HERETO THAT NO REPRESENTATION, UNDERTAKING OR AGREEMENT
MADE IN THIS AGREEMENT ON THE PART OF ANY PARTY HERETO WAS MADE OR INTENDED TO
BE MADE AS A PERSONAL OR INDIVIDUAL REPRESENTATION, UNDERTAKING OR AGREEMENT ON
THE PART OF ANY INCORPORATOR, STOCKHOLDER, DIRECTOR, OFFICER, AGENT, MEMBER OR
PARTNER (PAST, PRESENT OR FUTURE), OF ANY PARTY AND NO PERSONAL OR INDIVIDUAL
LIABILITY OR RESPONSIBILITY IS ASSUMED BY, NOR SHALL ANY RECOURSE AT ANY TIME BE
ASSERTED OR ENFORCED AGAINST, ANY SUCH INCORPORATOR, STOCKHOLDER, DIRECTOR,
OFFICER, AGENT, MEMBER OR PARTNER, ALL OF WHICH RECOURSE (WHETHER IN COMMON LAW,
IN EQUITY, BY STATUTE OR OTHERWISE) IS HEREBY FOREVER WAIVED AND RELEASED.
SECTION 11.12
TERMINATION.
THIS AGREEMENT MAY BE
TERMINATED AND THE TRANSACTIONS CONTEMPLATED HEREIN MAY BE ABANDONED, (A) BY
MUTUAL CONSENT OF THE PARTIES HERETO, OR (B) BY ANY PARTY BY NOTICE TO THE OTHER
PARTY IF THE CLOSING DATE SHALL NOT HAVE OCCURRED ON OR BEFORE AUGUST 31, 2005.
IN THE EVENT OF ANY TERMINATION OF THIS AGREEMENT, THIS AGREEMENT SHALL
FORTHWITH BECOME WHOLLY VOID AND OF NO FURTHER FORCE AND EFFECT AND THERE SHALL
BE NO LIABILITY ON THE PART OF ANY OF THE PARTIES HERETO OR THEIR RESPECTIVE
OFFICERS OR DIRECTORS, EXCEPT THAT TERMINATION SHALL NOT