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EXHIBIT 4
SUPPLEMENTAL AGREEMENT
REGARDING CONTINGENT MERGER CONSIDERATION
Reference is made to that certain Agreement and Plan of Merger Agreement
(the "Merger Agreement") dated as of January 1, 2000, by and among Black Hills
Corporation, Black Hills Energy Capital, Inc. ("Newco"), Indeck Capital, Inc.
("Indeck"), Xxxxxx X. Xxxxxxxx, Xxxxxxxx X. Xxxxxxx, Xxxxxx Xxxxxxxx, Xxxxxx
Xxxxxxx, Xxxxxxx X. Xxxxxxxx and Xxxx X. Xxxxxx, Xx. All terms not defined
herein shall have the respective meaning ascribed thereto in the Merger
Agreement.
Section 2.2 of the Merger Agreement provides for the payment of certain
Earn-Out Consideration based upon the Adjusted Net Income of the Surviving
Corporation for each of the four (4) calendar years in the period from January
1, 2000 through December 31, 2003. It is hereby agreed and acknowledged by the
parties hereto that for purposes of the Merger Agreement, Adjusted Net Income of
the Surviving Corporation for the calendar year commencing January 1, 2000 shall
be equal to (i) the consolidated net income of Indeck for the period commencing
January 1, 2000 and ending on the Closing Date (the "Pre-Closing Period"),
calculated in accordance with GAAP, exclusive of any components of net income
attributable to the following non-cash items: (1) forgiveness of payments
received in excess of avoided cost related to the New York State Dam,
Warrensburg, Sissonville and Otter Creek projects and (2) one-time debt
restructuring associated with the New York State Dam, Sissonville and Middle
Falls projects, plus (ii) the consolidated net income of Newco for the
Pre-Closing Period, calculated in accordance with GAAP, plus (iii) the Adjusted
Net Income of Surviving Corporation for the period from the Closing Date through
and including December 31, 2000.
This Agreement shall be governed by the laws of the State of Delaware.
This Agreement may be signed in two or more counterparts, each of which
when duly executed and delivered shall be deemed an original and all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of January __, 2000.
BLACK HILLS CORPORATION
By: /s/
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Name:
Title:
BLACK HILLS ENERGY CAPITAL, INC.
By: /s/
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Name:
Title:
INDECK CAPITAL, INC.
By: /s/
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Name:
Title:
/s/
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XXXXXX X. XXXXXXXX
/s/
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XXXXXXXX X. XXXXXXX
/s/
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XXXXXX XXXXXXXX
/s/
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XXXXXX XXXXXXX
/s/
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XXXXXXX X. XXXXXXXX
/s/
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XXXX X. XXXXXX, XX.
