EXHIBIT 4.1
AMENDMENT AND WAIVER AGREEMENT
THIS AMENDMENT AND WAIVER AGREEMENT, dated as of September 10, 2003, is
executed by and among TOM BROWN, INC., a Delaware corporation (the "Company"),
UNION OIL COMPANY OF CALIFORNIA, a California corporation ("Unocal"), and
CHICAGO CARBON COMPANY, an Illinois general partnership ("CCC").
RECITALS
A. The Company and Unocal entered into a Stock Ownership and
Registration Rights Agreement dated as of June 29, 1999, which Agreement was
supplemented by an Addendum dated as of September 30, 1999 by and among the
Company, Unocal and CCC (collectively, the "Agreement").
B. Pursuant to Section 4.2(a) of the Agreement, in the event that the
Company issues, sells or transfers shares of common stock of the Company (the
"TBI Common Stock"), CCC (as Unocal's successor in interest) has the right to
purchase additional shares from the Company to maintain its percentage
ownership of TBI Common Stock at the level it was immediately prior to the time
of each such issuance, sale or transfer.
C. The Company has commenced and intends to consummate a public offering
of shares of TBI Common Stock (the "Offering") pursuant to an underwritten
offering led by JP Morgan and CCC will be a selling stockholder in such
offering.
AGREEMENTS
NOW, THEREFORE, in consideration of the agreements set forth above,
1. Unocal and CCC hereby waive any and all rights they may have to
acquire additional shares from the Company pursuant to the provisions set forth
in Section 4.2(a) of the Agreement as a result of the issuance and sale of
shares in the Offering or pursuant to any employee benefit plan of the Company.
2. The Agreement is hereby amended to add the following sentence to the
end of Section 4.2(a):
Notwithstanding anything contained herein, neither Unocal nor any of
its affiliates shall have the right to acquire shares of TBI Common
Stock from TBI as a result of any issuance, sale or transfer of shares
of TBI Common Stock pursuant to any employee benefit plan of TBI.
(3) Neither Unocal nor CCC waives any other rights or privileges under the
Agreement and, except for the specific waiver and amendment made herein, the
Agreement shall remain in full force and effect without modification.
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IN WITNESS WHEREOF, the parties have caused this Waiver to be duly
executed as of the date set forth above.
TOM BROWN, INC.
By: /s/ Daniel G. Blanchard
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Name: Daniel G. Blanchard
Title: Executive Vice President and
Chief Financial Offer
UNION OIL COMPANY OF CALIFORNIA
By: /s/ Douglas M. Miller
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Name: Douglas M. Miller
Title: Vice President, Corporate
Development
CHICAGO CARBON COMPANY
By: Midwest 76, Inc.
By: /s/ Darrell D. Chessum
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Name: Darrell D. Chessum
Title: Treasurer
By: Lemont Carbon, Inc.
By: /s/ Darrell D. Chessum
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Name: Darrell D. Chessum
Title: Treasurer
By: Midwest Natural Gas Pipeline Company
By: /s/ Gary R. Miller
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Name: Gary R. Miller
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Title: Assistant Comptroller
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Constituting all of the partners of the
Chicago Carbon Company