Tender Back Sample Clauses
The Tender Back clause requires a party who seeks to rescind or challenge an agreement to return any benefits or payments received under that agreement. In practice, this means that if an individual wants to invalidate a contract—such as a settlement or release—they must first repay any money or consideration they obtained as part of the original deal. This clause serves to prevent unjust enrichment and ensures that parties cannot keep the benefits of an agreement while simultaneously contesting its validity.
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Tender Back. This Section 16 does not apply to claims under ADEA or to challenge the sufficiency of the waiver of claims under the Older Workers Benefit Protection Act; provided, however, nothing in this Agreement is intended to reflect any party’s belief that Executive’s waiver of claims under ADEA is invalid or unenforceable under this Agreement, it being the intent of Executive and the Company that such claims are waived. This Section does not grant Executive an option to return the Separation Benefits and institute an action. Instead this Section merely creates an additional term and condition precedent to bringing an action regardless of the fact that such action is expressly barred by this Agreement, and is without merit. Executive understands and agrees that in the event Executive, by himself, or in conjunction with Executive’s heirs, spouse, family members, executors or administrators attempt to institute or do institute any charge, claim, suit or action against any of the Released Parties in violation of this Agreement, Executive shall be obligated, as an express condition of bringing such action, to tender back to Company the full amount of the compensation and benefits that Executive has received under the Agreement; and Executive further agrees that Executive will pay all of the Released Parties’ costs, expenses and fees of defending against such action, including, among other things, reasonable attorneys’ fees.
Tender Back. Prior to filing or pursuing an Arbitration Dispute, Employee understands and agrees that Employee must first tender back to PFF all salary, wages, benefits and other compensation Employee received pursuant to this Agreement.
Tender Back. You agree that in the event of any breach of this Agreement, including but not limited to, your bringing any claim against any Released Party, you will immediately repay all or any portion of the payments made to you and the Company will have no obligation to make any further payments to you under this Agreement, provided, however, that these provisions do not apply to any claims brought pursuant to the Age Discrimination in Employment Act or the Older Workers Benefit Protection Act.
Tender Back. Should Executive attempt to challenge the enforceability of this Agreement or any provision herein, or attempt to initiate any legal proceedings, including but not limited to administrative agency or court proceedings arising out of or related to Executive's employment or termination of employment with Employer, Executive shall initially tender to Employer, by certified check delivered to counsel for Employer, the full amount of cash consideration paid to him hereunder, plus interest at the legal rate from the date of Executive's execution of this Agreement, and shall invite Employer to cancel this Agreement. If Employer accepts the offer to cancel the Agreement, this Agreement shall be canceled. If Employer does not accept this offer to cancel, Employer shall so notify Executive and shall place the amount tendered by Executive in an interest-bearing account pending a determination of the enforceability of this Agreement. If the Agreement is determined to be enforceable, 100% of the amount of the account shall be repaid to Executive; if this Agreement is not determined to be enforceable, the amount in the account shall be retained by Employer or its designee. This Section 14 shall not be applicable to actions brought by Executive to enforce Employer's obligations hereunder.
Tender Back. Executive will forfeit all stock options granted under Section 1.7 above if he does not relocate his primary residence to Raleigh, North Carolina by October 31, 2004. Additionally, Executive will be liable to repay the Company for all temporary living expenses, including expenses for the weekly round-trip travel between Raleigh, North Carolina and Wayzata, Minnesota provided to Executive or his spouse. Executive, however, will not be required to repay the Company for any temporary living expenses, including any travel expenses, if Executive fails to relocate his primary residence to Raleigh, North Carolina because of (a) his death; (b) his disability (within the meaning of Section 7.1); or (c) the Company’s termination of his employment without “cause” as defined in Section 7.3.
Tender Back. Should you attempt to challenge the enforceability of this Agreement or any provision herein, or attempt to initiate any legal proceedings, including but not limited to administrative agency or court proceedings arising out of or related to your employment or termination of employment with ESI, you shall initially tender to ESI, by certified check delivered to counsel for ESI, the full amount of cash consideration paid to you hereunder, plus interest at the legal rate from the date of your execution of this Agreement, and shall invite ESI to cancel this Agreement. If ESI accepts the offer to cancel the Agreement, this Agreement shall be canceled. If ESI does not accept this offer to cancel, ESI shall so notify you and shall place the amount tendered by you in an interest-bearing account pending a determination of the enforceability of this Agreement. If the Agreement is determined to be enforceable, 100% of the amount of the account shall be repaid to you; if this Agreement is not determined to be enforceable, the amount in the account shall be retained by ESI or its designee. This Section 18 shall not be applicable to actions brought by you to enforce ESI's obligations hereunder.
Tender Back. In Oubre v. Entergy Operations, 522 U.S. 422 (1998), the United States Supreme Court held that if an ADEA waiver does not comply with the OWBPA then an employee may pursue an ADEA lawsuit without first tendering back payments made under the waiver. Effective January 10, 2001, the EEOC issued 29 CFR section 1625.23, Sec. 1625.23 (“waivers of rights and claims: tender back of consideration”), which states:
(a) An individual alleging that a waiver agreement, covenant not to sue, or other equivalent arrangement was not knowing and voluntary under the ADEA is not required to tender back the consideration given for that agreement before filing either a lawsuit or a charge of discrimination with EEOC or any state or local fair employment practices agency acting as an EEOC referral agency for purposes of filing the charge with EEOC. Retention of consideration does not foreclose a challenge to any waiver agreement, covenant not to sue, or other equivalent arrangement; nor does the retention constitute the ratification of any waiver agreement, covenant not to sue, or other equivalent arrangement.
(b) No ADEA waiver agreement, covenant not to sue, or other equivalent arrangement may impose any condition precedent, any penalty, or any other limitation adversely affecting any individual's right to challenge the agreement. This prohibition includes, but is not limited to, provisions requiring employees to tender back consideration received, and provisions allowing employers to recover attorneys' fees and/or damages because of the filing of an ADEA suit. This rule is not intended to preclude employers from recovering attorneys' fees or costs specifically authorized under federal law.
(c) Restitution, recoupment, or setoff.
(1) Where an employee successfully challenges a waiver agreement, covenant not to sue, or other equivalent arrangement, and prevails on the merits of an ADEA claim, courts have the discretion to determine whether an employer is entitled to restitution, recoupment or setoff (hereinafter, “reduction”) against the employee's monetary award. A reduction never can exceed the amount recovered by the employee, or the consideration the employee received for signing the waiver agreement, covenant not to sue, or other equivalent arrangement, whichever is less.
(2) In a case involving more than one plaintiff, any reduction must be applied on a plaintiff-by-plaintiff basis. No individual's award can be reduced based on the consideration received by any other perso...
Tender Back. Should Executive materially breach any one or more of his obligations contained in this Agreement or file a lawsuit challenging the validity of the release of, or file a lawsuit based upon, any claim released under Paragraph 13 (other than a federal Age Discrimination in Employment Act claim) Executive shall immediately reimburse Company any and all of the Severance Payment it paid to Executive or on his behalf pursuant to this Agreement, any and all remaining obligations of Company may have under this Agreement to the Severance Payment shall immediately be fully satisfied and forever discharged, and Executive shall reimburse Company for any and all attorneys’ fees and other costs the Company incurs in such action or otherwise in enforcing this provision. Should Executive file a lawsuit asserting one or more federal Age Discrimination in Employment Act claims, he shall immediately reimburse Company any and all of the Severance Payment it paid or property it conveyed to Executive or on his behalf pursuant to this Agreement, except that portion of the Severance Payment attributable to the release of such claims. For the purposes of this Agreement, twenty percent of the consideration provided hereunder is attributable to the release of any federal Age Discrimination in Employment Act claims. In the event either party takes any legal action to enforce the terms and conditions of this Agreement, the prevailing party in such legal action shall be reimbursed by the losing party for its costs and expenses either in prosecuting or defending the legal action, as the case may be.