Notwithstanding any other provision of this Plan to the contrary, if the date for which Fair Market Value is determined is the Registration Date, the Fair Market Value shall be the offering price of a share of Common Stock for grants of such Awards made in connection with the Companys initial public offering and sale of equity securities pursuant to an effective registration statement (other than on Form S-4, S-8 or their equivalents) filed under the Securities Act.
2.21 Grant Date means the date on which an Award under the Plan is granted by the Committee or such later date as the Committee may specify to be the effective date of an Award.
2.22 Incentive Stock Option means a Stock Option granted under Section 6 hereof that is intended to meet the requirements of Section 422 of the Code and the regulations thereunder.
2.23 Investor means any of Cerberus Capital Management, L.P. (including any investment fund that is directly or indirectly managed or advised by Cerberus Capital Management, L.P. or any of its Affiliates or the successors of any such investment fund), Kimco Realty Corporation, Klaff Realty, LP, Lubert-Adler Partners, L.P., Schottenstein Stores Corporation and their respective Affiliates.
2.24 Non-Employee Director means a member of the Board who is not an employee of the Company or any of its subsidiaries.
2.25 Nonqualified Stock Option means a Stock Option granted under Section 6 hereof that is not an Incentive Stock Option.
2.26 Parent Corporation means, with respect to the Company, a parent corporation within the meaning of Section 424(e) of the Code.
2.27 Participant means any Eligible Person who holds an outstanding Award under the Plan.
2.28 Performance Criteria means any performance criteria selected by the Committee for purposes of the grant or vesting of an Award, which may include, without limitation, performance criteria based on one or more of the following: (a) net earnings (either before or after (i) interest, (ii) taxes, (iii) depreciation and (iv) amortization), (b) gross or net sales or revenue, (c) net income (either before or after taxes), (d) operating profit, (e) cash flow (including, but not limited to, operating cash flow and free cash flow), (f) return on assets, (g) return on capital or investment, (h) return on stockholders equity, (i) return on sales, (j) gross or net profit or operating margin, (k) costs, (l) funds from operations, (m) expense, (n) working capital, (o) earnings per share, (p) price per share of Common Stock or total shareholder return, (q) United States Food and Drug Administration or other regulatory body approval for commercialization of a product, (r) market share, (s) identical store sales, (t) identical store sales excluding fuel, any of which may be measured either in absolute terms or as compared to any incremental increase or decrease or as compared to results of a peer group, (u) inventory, (v) store level performance, (w) implementation or completion of critical projects or processes, (x) customer service or customer service satisfaction, (y) leverage ratio, or (z) or any other objective or subjective measures determined by the Committee.