Common use of Additional Merger Consideration Clause in Contracts

Additional Merger Consideration. (a) In addition ------------------------------- to the Merger Consideration, the Periscope Stockholders shall be entitled to receive an aggregate of 225,000 additional shares of Common Stock (the "Additional GIANT Common Stock" or "Additional Merger Consideration") based upon the net pre-tax profits of Periscope for the fiscal year ending December 31, 1999 (the "1999 Periscope Pre-Tax Profits"). The number of shares of Additional GIANT Common Stock shall be equal to: Amount of 1999 Number of Periscope Pre-Tax Profits Shares ------------------------- --------- less than $13.0 million -0- from 13.0 million but less than $14.0 million 50,000 from $14.0 million but less than $15.5 million 87,500 from $15.5 million but less than $17.3 million 125,000 in excess of $17.3 million 225,000 If between the date of this Agreement and the date of delivery of the Additional GIANT Common Stock to the Periscope Stockholders, the outstanding shares of GIANT Common Stock shall have been changed into a different number of shares or a different class by reason of a stock dividend, subdivision, reclassification, recapitalization, split-up or combination, the Additional GIANT Common Stock constituting the Additional Merger Consideration shall be appropriately adjusted. (b) The accountants then auditing the 1999 financial statements of GIANT shall calculate the 1999 Periscope Pre-Tax Profits. For purposes of the foregoing calculation, the accountants shall follow generally accepted accounting principals ("GAAP") consistent with the 1998 financial statements of Periscope, subject to the following: (i) no corporate overhead allocation of GIANT shall be charged to Periscope, (ii) no charge shall be made for any amortization of goodwill arising from the Merger, (iii) an interest charge at a rate of ten (10%) percent per annum shall be charged for advances exceeding $3 million made by GIANT or any GIANT subsidiary to Periscope, and (iv) no interest shall be charged with respect to the indebtedness referred to in Section 5.11 hereof or the funds provided pursuant ------------ to Section 5.12 hereof. Either of GIANT or ▇▇▇▇▇ ▇▇▇▇▇ ------------ ("Sands"), as representative of the Periscope Stockholders, shall have the right to discuss with the accountants the calculation of the 1999 Periscope Pre-Tax Profits. The accountants shall present their calculation on or before April 30, 1999. The calculation of the accountants shall be final and binding upon GIANT and the Periscope Stockholders, absent mathematical error. (c) The amount of Additional GIANT Common Stock, if any, issuable to each Periscope Stockholder shall be equal to the product of (x) his Fractional Interest multiplied by (y) the aggregate number of shares of Additional GIANT Common Stock as determined by Subsection (a) above. GIANT shall issue or cause the issuance of any Additional GIANT Common Stock within ten (10) days after receipt by GIANT and the Periscope Stockholders of the accountants' report showing the calculation of the 1999 Periscope Pre-Tax Profits pursuant to this Section.

Additional Merger Consideration. (a) In addition ------------------------------- The holders as at the Effective Time (collectively, "Holders" and each, a "Holder") of Class A Common Stock, Class B Common Stock, Class C Common Stock, Company Preferred Stock, 1996 Plan Options, 1992 Plan Options, Non-Plan Class A Options and Warrants (other than Company Common Stock canceled pursuant to the Merger ConsiderationSection 2.1(d), the Periscope Stockholders (e) and (f) and any Dissenting Shares (collectively, "Excluded Shares")) (collectively, "Company Securities") shall be entitled to receive Additional Merger Consideration (as hereinafter defined) in the amounts and at the times set forth in this Section 2.9. Parent shall deposit with the Paying Agent promptly after each Computation Date an aggregate of 225,000 additional shares of Common Stock amount equal to the Additional Merger Consideration due as at such Computation Date, which shall be held and invested in Permitted Investments in a payment fund in accordance with Section 2.2 (the "Additional GIANT Consideration Payment Fund"). The Paying Agent shall, at any time when the Additional Payment Fund is more than $750,000, and after the Final Computation Date, distribute to the Holders all amounts in the Additional Consideration Payment Fund as follows: (i) each Holder of Class A Common Stock" or , Class B Common Stock and Class C Common Stock shall be paid, for each share of Company Common Stock, an amount equal to (1) (A) the Total Additional Merger Consideration then being distributed divided by (B) an amount equal to 13,590,262 less the number of Excluded Shares, if any (the "Additional Common Stock Merger Consideration") based upon plus (2) any earnings on the net preAdditional Common Stock Merger Consideration then held in the Additional Consideration Payment Fund (the Additional Common Stock Merger Consideration plus such earnings thereon are referred to as "Total Additional Common Stock Consideration"); (ii) each Holder of Company Preferred Stock shall be paid, for each share of Company Preferred Stock, an amount equal to (1)16-tax profits of Periscope for 2/3 times the fiscal year ending December 31, 1999 Additional Common Stock Merger Consideration (the "1999 Periscope Pre-Tax ProfitsAdditional Preferred Stock Merger Consideration"). The ) plus (2) any earnings on the Additional Preferred Stock Merger Consideration then held in the Additional Consideration Payment Fund; (iii) each Holder of 1996 Plan Options shall be paid an amount, with respect to each such 1996 Plan Option, equal to the Total Common Stock Additional Consideration multiplied by the number of shares of Additional GIANT Class A Common Stock into which such 1996 Plan Option was exercisable immediately prior to the Effective Time; (iv) each Holder of 1992 Plan Options shall be paid an amount, with respect to each such 1992 Plan Option, equal to: Amount of 1999 Number of Periscope Pre-Tax Profits Shares ------------------------- --------- less than $13.0 million -0- from 13.0 million but less than $14.0 million 50,000 from $14.0 million but less than $15.5 million 87,500 from $15.5 million but less than $17.3 million 125,000 in excess of $17.3 million 225,000 If between to the date of this Agreement and the date of delivery of the Total Additional GIANT Common Stock to Consideration multiplied by the Periscope Stockholders, the outstanding shares of GIANT Common Stock shall have been changed into a different number of shares or a different class by reason of a stock dividend, subdivision, reclassification, recapitalization, split-up or combination, the Additional GIANT Class B Common Stock constituting into which such 1992 Plan Option was exercisable immediately prior to the Additional Merger Consideration Effective Time; (v) each Holder of Non-Plan Class A Options shall be appropriately adjustedpaid an amount, with respect to each such Non-Plan Class A Option, equal to the Total Additional Common Stock Consideration multiplied by the number of shares of Class A Common Stock into which such Non-Plan Class A Option was exercisable immediately prior to the Effective Time; and (vi) each Holder of Warrants shall be paid, with respect to each such Warrant, an amount equal to the Total Additional Common Stock Consideration multiplied by the number of shares of Class A Common Stock into which such Warrant was exercisable immediately prior to the Effective Time. (b) The accountants then auditing the 1999 financial statements of GIANT shall calculate the 1999 Periscope Pre-Tax Profits. For purposes of the foregoing calculation, the accountants shall follow generally accepted accounting principals ("GAAP") consistent with the 1998 financial statements of Periscope, subject Any payment made pursuant to the following: (i) no corporate overhead allocation of GIANT shall be charged to Periscope, (ii) no charge this Section 2.9 shall be made for any amortization net of goodwill arising from the Merger, (iii) an interest charge at a rate of ten (10%) percent per annum shall be charged for advances exceeding $3 million made by GIANT or any GIANT subsidiary to Periscope, and (iv) no interest shall be charged with respect applicable withholding taxes to the indebtedness referred to in Section 5.11 hereof or the funds provided pursuant ------------ to Section 5.12 hereof. Either of GIANT or ▇▇▇▇▇ ▇▇▇▇▇ ------------ ("Sands"), as representative of the Periscope Stockholders, shall have the right to discuss with the accountants the calculation of the 1999 Periscope Pre-Tax Profits. The accountants shall present their calculation on or before April 30, 1999. The calculation of the accountants shall be final and binding upon GIANT and the Periscope Stockholders, absent mathematical errorextent such withholding is required by law. (c) The amount For purposes of Additional GIANT Common Stockthis Agreement, if any, issuable to each Periscope Stockholder the following terms shall be equal to have the product of (x) his Fractional Interest multiplied by (y) the aggregate number of shares of Additional GIANT Common Stock as determined by Subsection (a) above. GIANT shall issue or cause the issuance of any Additional GIANT Common Stock within ten (10) days after receipt by GIANT and the Periscope Stockholders of the accountants' report showing the calculation of the 1999 Periscope Pre-Tax Profits pursuant to this Section.following meanings: