Common use of Commencement of Exercisability Clause in Contracts

Commencement of Exercisability. (a) Except as otherwise provided in Section 3.1(b) or (c) below, so long as the Optionee continues to be employed by the Company or any other Service Recipient, the Option shall become vested and exercisable with respect to 25% of the Shares subject to such Option on each of the first four (4) anniversaries of the Grant Date. To the extent this vesting schedule results in the vesting of fractional shares, the fractional shares shall be combined and be exercisable on the first anniversary of the Grant Date. (b) Notwithstanding Section 3.1(a) above, upon the earliest occurrence of (i) a Change in Control, (ii) the Optionee’s death, or (iii) a termination of the Optionee’s employment by reason of the Optionee’s Disability, the Option shall become immediately vested and exercisable with respect to 100% of the Shares subject to such unvested Option immediately prior to such event (but only to the extent such Option has not otherwise terminated or become exercisable). (c) Notwithstanding Section 3.1(a) above, in the event of the Optionee’s Retirement, that portion of the Option that would have become vested and exercisable within the one (1) year period following the Optionee’s Retirement date if the Optionee had remained employed with the Company or the applicable Service Recipient shall remain outstanding for a period of one (1) year following the Optionee’s Retirement date and shall become vested and exercisable on the anniversary of the Grant Date that falls within the one (1) year period following the Optionee’s Retirement date (but only to the extent such portion of the Option has not otherwise terminated or become exercisable); provided, however, that if during such one (1) year period there occurs a Change in Control or the Optionee dies or incurs a Disability, such portion of the Option shall instead become immediately vested and exercisable (but only to the extent such portion of the Option has not otherwise terminated). (d) No Option shall become vested or exercisable as to any additional Shares following the Optionee’s termination of employment for any reason, and any Option which is unexercisable as of the Optionee’s termination of employment shall immediately expire without payment therefor, in each case except as otherwise provided in Section 3.1(b) or (c) above.

Commencement of Exercisability. (a) Except as otherwise provided in Section 3.1(b) or (c) below, so So long as the Optionee continues to be employed by an Eligible Individual performing bona fide services to or for the Company or any other Service Recipientthrough the applicable vesting date(s) below (each, a “Vesting Date”), the Option shall become vested and exercisable with respect pursuant to 25% the following schedule: <<Vesting Date 1>> <<Number of the Shares subject to such Option on each Options 1>> <<Vesting Date 2>> <<Number of the first four (4) anniversaries Options 2>> <<Vesting Date 3>> <<Number of the Grant Date. To the extent this vesting schedule results in the vesting of fractional shares, the fractional shares shall be combined and be exercisable on the first anniversary of the Grant Date.Options 3>> (b) Notwithstanding Section 3.1(athe foregoing, if, before the final Vesting Date, but on or within the eighteen (18) above, upon the earliest occurrence of (i) months after a Change in Control, (ii) the Optionee’s death, Optionee ceases to be an Eligible Individual because the Company or (iii) a termination of its successor terminates the Optionee’s employment by reason of the Optionee’s Disabilityor other service relationship without Cause, the Option shall become immediately vested and exercisable with respect as to 100% of the Shares shares of Common Stock subject to the Option on such unvested Option immediately prior to such event termination date (but only to the extent such Option has not otherwise terminated or become exercisable). (c) Notwithstanding Section 3.1(a) aboveIf, in before a Vesting Date, the event of Optionee ceases to be an Eligible Individual due to the Optionee’s Retirementdeath or Permanent Disability, that portion the Optionee will vest on the Optionee’s termination date in the number of shares of Common Stock subject to the Option that would have become vested and exercisable within the one (1) year period following the Optionee’s Retirement date if had the Optionee had remained employed with until the Company or the applicable Service Recipient shall remain outstanding for a period of one (1) year following the Optionee’s Retirement date and shall become vested and exercisable on the anniversary of the Grant Date that falls within the one (1) year period following the Optionee’s Retirement date (but only to the extent such portion of the Option has not otherwise terminated or become exercisable); provided, however, that if during such one (1) year period there occurs a Change in Control or the Optionee dies or incurs a Disability, such portion of the Option shall instead become immediately vested and exercisable (but only to the extent such portion of the Option has not otherwise terminated)next scheduled Vesting Date. (d) No portion of the Option shall become vested or exercisable as to any additional Shares shares of Common Stock following the Optionee’s termination of employment for any reasontime the Optionee ceases to be an Eligible Individual, and any portion of the Option which is unexercisable as of the Optionee’s termination cessation of employment service as an Eligible Individual shall immediately expire without payment therefor, in each case except as otherwise provided in Section 3.1(b) or (c) above.

Commencement of Exercisability. (a) Except as otherwise provided in Section 3.1(b) or (c) below, so long as the Optionee continues to be employed by the Company or any other Service Recipient, the Option shall become vested and exercisable with respect to 25% of the Shares subject to such Option on each April 1 of the first four (4) anniversaries of fiscal years following the fiscal year in which the Grant Date occurs, as set forth on Schedule A hereto (each such date, a “Vesting Date”). To the extent this vesting schedule results in the vesting of fractional shares, the fractional shares shall be combined and be exercisable on the first anniversary of the Grant earliest Vesting Date. (b) Notwithstanding Section 3.1(a) above, upon the earliest occurrence of (i) a Change in Control, (ii) the Optionee’s death, or (iii) a termination of the Optionee’s employment by reason of the Optionee’s Disability, the Option shall become immediately vested and exercisable with respect to 100% of the Shares subject to such unvested Option immediately prior to such event (but only to the extent such Option has not otherwise terminated or become exercisable). (c) Notwithstanding Section 3.1(a) above, in the event of the Optionee’s Retirement, that portion of the Option that would have become vested and exercisable within the one (1) year period following the Optionee’s Retirement date if the Optionee had remained employed with the Company or the applicable Service Recipient shall remain outstanding for a period of one (1) year following the Optionee’s Retirement date and shall become vested and exercisable on the anniversary of the Grant Date that falls within the one (1) year period following the Optionee’s Retirement date (but only to the extent such portion of the Option has not otherwise terminated or become exercisable); provided, however, that if during such one (1) year period there occurs a Change in Control or the Optionee dies or incurs a Disability, such portion of the Option shall instead become immediately vested and exercisable (but only to the extent such portion of the Option has not otherwise terminated). (d) No Option shall become vested or exercisable as to any additional Shares following the Optionee’s termination of employment for any reason, and any Option which is unexercisable as of the Optionee’s termination of employment shall immediately expire without payment therefor, in each case except as otherwise provided in Section 3.1(b) or (c) above.

Commencement of Exercisability. (a) Except as otherwise provided in Section 3.1(b), (c) or (cd) below, so long as the Optionee continues to be employed by the Company or any other Service Recipienta Subsidiary, the Option shall become vested and exercisable with respect to 25% thirty-three and one-third percent (33 1/3%) of the Shares subject to such the Option on each of the first four (4) third, fourth and fifth anniversaries of the Grant Date (each such date, a “Vesting Date”). To the extent this vesting schedule results in the vesting of fractional sharesShares, the fractional shares Shares shall be combined into one Share and be exercisable on the first anniversary of the Grant earliest Vesting Date. (b) Notwithstanding Section 3.1(a) above, upon the earliest occurrence of (i) a Change in Control, (ii) the Optionee’s death, or (iiiii) a termination of the Optionee’s employment by reason of the Optionee’s DisabilityDisability Termination, the Option shall become immediately vested and exercisable with respect to one hundred percent (100% %) of the Shares subject to such the unvested Option immediately prior to such event (but only to the extent such the Option has not otherwise terminated terminated, been forfeited or become exercisable). (c) Notwithstanding Section 3.1(a) above, in the event the Optionee experiences a Qualifying Termination, the Option shall become immediately vested and exercisable on the date of such Qualifying Termination with respect to one hundred percent (100%) of the Shares subject to the unvested Option (but only to the extent the Option has not otherwise terminated, been forfeited or become exercisable). (d) Notwithstanding Section 3.1(a) above, in the event of the Optionee’s Retirement, that portion of the Option that would have become vested and exercisable within the one (1) year period following the Optionee’s Retirement date if the Optionee had remained employed with the Company or the applicable Service Recipient a Subsidiary shall remain outstanding for a period of one (1) year following the Optionee’s Retirement date and shall become vested and exercisable on the anniversary of the Grant Date that falls within the one (1) year period following the Optionee’s Retirement date (but only to the extent such portion of the Option has not otherwise terminated terminated, been forfeited or become exercisable); provided, however, that if during such one (1) year period there occurs a Change in Control or the Optionee dies or incurs a Disabilitydies, such portion of the Option shall instead become immediately vested and exercisable (but only to the extent such portion of the Option has not otherwise terminated), been forfeited or become exercisable) upon such death. (de) No Option shall become vested or exercisable as to any additional Shares following the Optionee’s termination of employment for any reason, and any portion of the Option which is unexercisable as of the Optionee’s termination of employment shall immediately expire terminate and be forfeited without payment therefor, in each case except as otherwise provided in Section 3.1(b), (c) or (cd) above.

Commencement of Exercisability. (a) Except as otherwise provided in Section 3.1(b) or (c) below, so long as the Optionee continues to be employed by the Company or any other Service Recipient, the Option shall become vested and exercisable with respect to 2533 1/3% of the Shares subject to such Option on each of the first four (4) third, fourth and fifth anniversaries of the Grant Date (each such date, a “Vesting Date”). To the extent this vesting schedule results in the vesting of fractional shares, the fractional shares shall be combined and be exercisable on the first third anniversary of the Grant Date. (b) Notwithstanding Section 3.1(a) above, upon the earliest occurrence of (i) a Change in Control, (ii) the Optionee’s death, or (iii) a termination of the Optionee’s employment by reason of the Optionee’s Disability, the Option shall become immediately vested and exercisable with respect to 100% of the Shares subject to such unvested Option immediately prior to such event (but only to the extent such Option has not otherwise terminated or become exercisable). (c) Notwithstanding Section 3.1(a) above, in the event of the Optionee’s Retirement, that portion of the Option Option, if any, that would have become vested and exercisable within the one (1) year period following the Optionee’s Retirement date if the Optionee had remained employed with the Company or the applicable Service Recipient shall remain outstanding for a period of one (1) year following the Optionee’s Retirement date and shall become vested and exercisable on the anniversary of the Grant Date that falls within the one (1) year period following the Optionee’s Retirement date (but only to the extent such portion of the Option has not otherwise terminated or become exercisable); provided, however, that if during such one (1) year period there occurs a Change in Control or the Optionee dies or incurs a Disability, such portion of the Option shall instead become immediately vested and exercisable (but only to the extent such portion of the Option has not otherwise terminated). (d) No Option shall become vested or exercisable as to any additional Shares following the Optionee’s termination of employment for any reason, and any portion of the Option which is unvested or unexercisable as of the Optionee’s termination of employment shall immediately expire without payment therefor, in each case except as otherwise provided in Section 3.1(b) or (c) above.

Commencement of Exercisability. (a) Except as otherwise provided in Section 3.1(b) or (c) below, so long as the Optionee continues to be employed by the Company or any other Service Recipient, the Option shall become vested and exercisable with respect to 25% of the Shares subject to such Option on each of the first four (4) anniversaries of the Grant Date. To the extent this vesting schedule results in the vesting of fractional shares, the fractional shares shall be combined and be exercisable on the first anniversary of the Grant Date. (b) Notwithstanding Section 3.1(a) above, upon the earliest occurrence of (i) a Change in Control, (ii) the Optionee’s death, or (iii) a termination of the Optionee’s employment by reason of the Optionee’s Disability, the Option shall become immediately vested and exercisable with respect to 100% of the Shares subject to such unvested Option immediately prior to such event (but only to the extent such Option has not otherwise terminated or become exercisable). (c) Notwithstanding Section 3.1(a) above, in the event of the Optionee’s Retirement, that portion of the Option that would have become vested and exercisable within the one (1) year period following the Optionee’s Retirement date if the Optionee had remained employed with the Company or the applicable Service Recipient shall remain outstanding for a period of one (1) year following the Optionee’s Retirement date and shall become vested and exercisable on the anniversary of the Grant Date that falls within the one (1) year period following the Optionee’s Retirement date (but only to the extent such portion of the Option has not otherwise terminated or become exercisable); provided, however, that if during such one (1) year period there occurs a Change in Control or the Optionee dies or incurs a Disability, such portion of the Option shall instead become immediately vested and exercisable (but only to the extent such portion of the Option option has not otherwise terminated). (d) No Option shall become vested or exercisable as to any additional Shares following the Optionee’s termination of employment for any reason, and any Option which is unexercisable as of the Optionee’s termination of employment shall immediately expire without payment therefor, in each case except as otherwise provided in Section 3.1(b) or (c) above.

Commencement of Exercisability. (a) Except as otherwise provided in Section 3.1(b), (c) or (cd) below, so long as the Optionee continues to be employed by the Company or any other Service Recipient, the Option shall become vested and exercisable with respect to 2533 1/3% of the Shares subject to such Option on each of the first four (4) third, fourth and fifth anniversaries of the Grant Date (each such date, a “Vesting Date”). To the extent this vesting schedule results in the vesting of fractional shares, the fractional shares shall be combined and be exercisable on the first third anniversary of the Grant Date. (b) Notwithstanding Section 3.1(a) above, upon the earliest occurrence of (i) a Change in Control, (ii) the Optionee’s death, death or (iiiii) a termination of the Optionee’s employment by reason of the Optionee’s Disability, the Option shall become immediately vested and exercisable with respect to 100% of the Shares subject to such unvested Option immediately prior to such event (but only to the extent such Option has not otherwise terminated terminated, been forfeited or become exercisable). (c) Notwithstanding Section 3.1(a) above, in the event the Optionee experiences a Qualifying Termination, the Option shall become immediately vested and exercisable on the date of such Qualifying Termination with respect to 100% of the Shares subject to such unvested Option (but only to the extent such Option has not otherwise terminated, been forfeited or become exercisable). (d) Notwithstanding Section 3.1(a) above, in the event of the Optionee’s Retirement, that portion of the Option Option, if any, that would have become vested and exercisable within the one (1) year period following the Optionee’s Retirement date if the Optionee had remained employed with the Company or the applicable Service Recipient shall remain outstanding for a period of one (1) year following the Optionee’s Retirement date and shall become vested and exercisable on the anniversary of the Grant Date that falls within the one (1) year period following the Optionee’s Retirement date (but only to the extent such portion of the Option has not otherwise terminated terminated, been forfeited or become exercisable); provided, however, that if during such one (1) year period there occurs a Change in Control or the Optionee dies or incurs a Disability, such portion of the Option shall instead become immediately vested and exercisable (but only to the extent such portion of the Option has not otherwise terminated)terminated or been forfeited) upon such death or Disability. (de) No Option shall become vested or exercisable as to any additional Shares following the Optionee’s termination of employment for any reason, and any portion of the Option which is unvested or unexercisable as of the Optionee’s termination of employment shall immediately expire terminate and be forfeited without payment therefor, in each case except as otherwise provided in Section 3.1(b), (c) or (cd) above.

Commencement of Exercisability. (a) Except as otherwise provided in Section Subject to Sections 3.1(b), 3.1(c) or (c) below, so long as the Optionee continues to be employed by the Company or any other Service Recipientand 3.3, the Option shall become vested and exercisable with respect to 25% of the Shares subject to in such Option on each of the first four (4) anniversaries of amounts and at such times as are set forth in the Grant Date. To the extent this vesting schedule results in the vesting of fractional shares, the fractional shares shall be combined and be exercisable on the first anniversary of the Grant DateNotice. (b) Notwithstanding No portion of the Option which has not become vested and exercisable at the date of the Participant’s Termination of Services shall thereafter become vested and exercisable, except as follows or as may be otherwise provided by the Administrator: If Participant incurs a termination of employment under any of the circumstances described in Section 3.1(a5(a)(i) above(death) of that certain Employment Agreement between Participant and Company effective April 25, upon 2008, as amended and restated (the earliest occurrence “Employment Agreement”), Section 5(a)(ii) (Disability) of the Employment Agreement, Section 5(a)(iv) (iResignation for Good Reason) a Change in Control, of the Employment Agreement or Section 5(a)(v) (iiTermination without Cause) of the Optionee’s deathEmployment Agreement, or (iiiB) a if the Employment Agreement expires or is otherwise not renewed beyond December 31, 2015 and upon such expiration or nonrenewal or thereafter at any time prior to vesting Executive ceases to be an employee of the Company for any reason other than Cause (as defined in the Employment Agreement notwithstanding its expiration), in each such case vesting will continue after termination of the Optionee’s employment by reason of the Optionee’s Disabilityas provided below: Prior to April 25, the Option shall become immediately vested and exercisable with respect to 1002011 0 % of the Shares subject to such unvested Option immediately On or after April 25, 2011 but prior to such event (April 25, 2012 20 % On or after April 25, 2012 but only prior to April 25, 2013 40 % On or after April 25, 2013 but prior to April 25, 2014 60 % On or after April 25, 2014 but prior to April 25, 2015 80 % On or after April 25, 2015 100 % The percentage of remaining Options permitted to vest will be spread ratably over the extent such Option has not otherwise terminated or become exercisable)performance vesting schedule and time vesting schedule. (c) Notwithstanding Section 3.1(a) aboveof this Agreement and Section 8 of the Plan (but subject to Section 3.1(b) of this Agreement), in the event of the Optionee’s Retirement, that portion of the Option that would have a Change in Control: Options shall become fully vested and exercisable within the one (1) year period following the Optionee’s Retirement date if the Optionee had remained employed with Fair Market Value per share on the effective date of a Change in Control is: (i) $56.87, if such Change in Control occurs on September 30, 2011; (ii) $65.23, if such Change in Control occurs on September 30, 2012, and (iii) $71.23, if such Change in Control occurs on or after September 30, 2013, it being understood that if a Change in Control occurs between October 1 and September 30 (through September 30, 2013) in any year, the required Fair Market Value per share on the effective date of a Change in Control for purposes of this Section shall be determined by means of linear interpolation. Notwithstanding the foregoing, the Administrator may, in good faith and in such manner as it may deem equitable, in its sole discretion, adjust the foregoing Fair Market Value requirements in the event of a dividend or other distribution (whether in the form of cash, Stock, other securities or property), recapitalization, reclassification, stock split, reverse stock split, reorganization, merger, consolidation, split-up, spin-off, combination, repurchase or exchange of Stock or other securities of the Company, issuance of warrants or other rights to purchase Stock or other securities of the Company, or any unusual or nonrecurring transactions or events affecting the Company or the applicable Service Recipient shall remain outstanding for a period of one (1) year following the Optionee’s Retirement date and shall become vested and exercisable on the anniversary financial statements of the Grant Date that falls within Company if the one (1) year period following adjustment is determined by the Optionee’s Retirement date (but only Administrator to be appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan or with respect to the extent such portion Option. For purposes of this Section 3.1, shall take into account the Option has not otherwise terminated or become exercisable); provided, however, that if during such one (1) year period there occurs consideration received by the stockholders in connection with a Change in Control or in connection with any other sale of common stock or other equity interests in the Optionee dies Company or incurs any Subsidiary, after taking into account all post-closing adjustments relating to a DisabilityChange in Control, and assuming the exercise of all vested options and warrants outstanding as of the effective date of such Change in Control (after giving effect to any dilution of securities or instruments arising in connection with such Change in Control); provided however, that if the stockholders retain any portion of the common stock following such Change in Control or other sale, the Fair Market Value of such portion of the Option retained common stock immediately following such Change in Control or other sale shall instead be deemed “consideration received” for purposes of calculating the proceeds and provided further that the Fair Market Value of any non-cash consideration (including stock) received in connection with a Change in Control shall be determined as of the date of such Change in Control. Notwithstanding Section 3.1(a) of this Agreement and Section 8 of the Plan (but subject to Section 3.1(b) of this Agreement, after March 1, 2013, in the event the closing price of the Company’s common stock on the New York Stock Exchange exceeds $160 per share on any 60 trading days during any consecutive 12-month period, then all Options granted hereunder will become immediately fully vested and exercisable (but only to the extent such portion of the Option has not otherwise terminated)exercisable. (d) No Option Anything in this Agreement to the contrary notwithstanding, if a Change of Control occurs and it is determined that any payment or distribution by the Company to or for the benefit of Participant, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, including the acceleration of Options hereunder (a “Payment”), would constitute an “excess parachute payment” within the meaning of Section 280G of the Code, the Company shall become vested or exercisable pay to the Participant an additional amount (the “Gross-Up Payment”) equal to the amount of any excise tax imposed under Section 4999 of the Code, times a gross-up factor equal to 1 divided by (1 minus the Total Tax Rate) (but limited in amount to the excise tax that would have been imposed under the Code as in effect on the date hereof), where the “Total Tax Rate” includes any applicable federal, state and local income tax, employment tax and excise tax for the Participant. For purposes of determining the amount of the Gross-Up Payment, unless the Participant specifies that other rates apply, the Participant shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made, and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Participant’s residence on the Payment date, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. All determinations to be made under this paragraph shall be made by the Company’s independent public accountants immediately prior to the Change of Control. Any such determination by the Company’s independent public accountants shall be binding upon the Company and the Participant. The Company shall pay the Gross-Up Payment to the Participant within ten days after the independent public accountant’s determination of the amount thereof. In any additional Shares event, the Gross-Up Payment shall be made no later than three and one-half months following the Optionee’s termination of employment for any reason, and any Option taxable year in which is unexercisable as the Payment occurs. All of the Optionee’s termination fees and expenses of employment the independent public accountants in performing the determinations referred to in this paragraph shall immediately expire without payment thereforbe borne solely by the Company. In the event there is a material change in the Code that negatively impacts the amount of excise tax that would be payable in the event of a Change in Control, the Administrator will revisit the issue of providing a Gross-Up Payment and consider whether the limitation on the amount of the Gross-Up Payment based on the Code as in each case except as otherwise provided in Section 3.1(b) effect on the date hereof should be removed or (c) abovemodified.

Commencement of Exercisability. (a) Except as otherwise provided in Section 3.1(b), (c) or (cd) below, so long as the Optionee continues to be employed by the Company or any other Service Recipienta Subsidiary, the Option shall become vested and exercisable with respect to [twenty-five percent (25% %)] of the Shares subject to such the Option on [each April 1 of the first four (4) anniversaries of fiscal years following the fiscal year in which the Grant Date occurs] (each such date, a “Vesting Date”). To the extent this vesting schedule results in the vesting of fractional sharesShares, the fractional shares Shares shall be combined into one Share and be exercisable on the first anniversary of the Grant earliest Vesting Date. (b) Notwithstanding Section 3.1(a) above, upon the earliest occurrence of (i) a Change in Control, (ii) the Optionee’s death, or (iiiii) a termination of the Optionee’s employment by reason of the Optionee’s DisabilityDisability Termination, the Option shall become immediately vested and exercisable with respect to one hundred percent (100% %) of the Shares subject to such the unvested Option immediately prior to such event (but only to the extent such the Option has not otherwise terminated terminated, been forfeited or become exercisable). (c) Notwithstanding Section 3.1(a) above, in the event the Optionee experiences a Qualifying Termination, the Option shall become immediately vested and exercisable on the date of such Qualifying Termination with respect to one hundred percent (100%) of the Shares subject to the unvested Option (but only to the extent the Option has not otherwise terminated, been forfeited or become exercisable). ​ ​ (d) Notwithstanding Section 3.1(a) above, in the event of the Optionee’s Retirement, that portion of the Option that would have become vested and exercisable within the one (1) year period following the Optionee’s Retirement date if the Optionee had remained employed with the Company or the applicable Service Recipient a Subsidiary shall remain outstanding for a period of one (1) year following the Optionee’s Retirement date and shall become vested and exercisable on the anniversary of the Grant Date April 1 that falls within the one (1) year period following the Optionee’s Retirement date (but only to the extent such portion of the Option has not otherwise terminated terminated, been forfeited or become exercisable); provided, however, that if during such one (1) year period there occurs a Change in Control or the Optionee dies or incurs a Disabilitydies, such portion of the Option shall instead become immediately vested and exercisable (but only to the extent such portion of the Option has not otherwise terminated), been forfeited or become exercisable) upon such death. (de) No Option shall become vested or exercisable as to any additional Shares following the Optionee’s termination of employment for any reason, and any portion of the Option which is unexercisable as of the Optionee’s termination of employment shall immediately expire terminate and be forfeited without payment therefor, in each case except as otherwise provided in Section 3.1(b), (c) or (cd) above.