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VOTING AGREEMENT

Voting Agreement

VOTING AGREEMENT | Document Parties: GASCO ENERGY INC | Richard N. Jeffs | Gregory Pek | Michael L. Nazmack You are currently viewing:
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GASCO ENERGY INC | Richard N. Jeffs | Gregory Pek | Michael L. Nazmack

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Title: VOTING AGREEMENT
Governing Law: Nevada     Date: 9/21/2006
Industry: Oil and Gas Operations     Law Firm: Richardson & Patel, LLP    

VOTING AGREEMENT, Parties: gasco energy inc , richard n. jeffs , gregory pek , michael l. nazmack
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Exhibit 4.1

VOTING AGREEMENT

     This VOTING AGREEMENT (this “ Agreement ”) is entered into as of September 20, 2006, by and among Gasco Energy, Inc., a Nevada corporation (“ Parent ”) and Richard N. Jeffs, Gregory Pek, Ian Robinson, Michael L. Nazmack, Eugene Sweeney and Shawne Malone (each a “ Stockholder ” and collectively, “ Stockholders ”).

RECITALS

     WHEREAS, each Stockholder is the holder of record and the “beneficial owner” (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended, (the “ Exchange Act ”)) of certain shares of common stock of Brek Energy Corporation, a Nevada corporation (the “ Company ”);

     WHEREAS, concurrently with the execution and delivery of this Agreement, Parent, Gasco Acquisition, Inc., a Nevada corporation (“ Merger Sub ”), and the Company are entering into an Agreement and Plan of Merger (the “ Merger Agreement ”) which provides (subject to the conditions set forth therein) for, among other things, the merger of Merger Sub with and into the Company (the “ Merger ”);

     WHEREAS, the execution and delivery of this Agreement by the Stockholders, and the form and substance of this Agreement, have been approved by the board of directors of the Company;

     WHEREAS, in connection with the Merger, the outstanding shares of common stock of the Company are to be converted into the right to receive the Merger Consideration; and

     WHEREAS, it is a condition to the Company entering into the Merger Agreement that the Stockholders and the Parent enter into this Agreement;

     NOW, THEREFORE, the parties to this Agreement, intending to be legally bound, hereby agree, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, as follows:

ARTICLE I

DEFINITIONS; RULES OF CONSTRUCTION

      1.1 Definitions . For purposes of this Agreement:

     “ Acquisition Proposal ” has the meaning assigned to it in the Merger Agreement.

     “ Affiliate ” means, with respect to a specific Person, a Person that directly, or indirectly through one or more intermediaries, controls or is controlled by, the Person specified.

     “ Company Common Stock ” means the common stock, par value $0.001 per share, of the Company.

     “ Effective Time ” has the meaning assigned to it in the Merger Agreement.


 

     “ Governmental Entity ” has the meaning assigned to it in the Merger Agreement.

     “ Judgment ” means any judgment, order or decree.

     “ Law ” means any federal, state or foreign constitutional provision, statute, law (including common law), ordinance, rule, regulation or interpretation of any Governmental Entity.

     “ Merger Consideration ” has the meaning assigned to it in the Merger Agreement.

     A Person is deemed to “ Own ” or to have acquired “ Ownership ” of a security if such Person (i) is the record owner of such security or (ii) is the “beneficial owner” (within the meaning of Rule 13d-3 under the Exchange Act) of such security.

     “ Person ” means any individual (including any beneficiary of a Stockholder), firm, corporation, partnership, company, limited liability company, trust, joint venture, association, Governmental Entity or other entity.

     “ Subject Securities ” means: (i) all securities of the Company (including all shares of Company Common Stock and all options, warrants and other rights to acquire shares of Company Common Stock) Owned by a Stockholder as of the date of this Agreement; and (ii) all additional securities of the Company (including all additional shares of Company Common Stock and all additional options, warrants and other rights to acquire shares of Company Common Stock) with respect to which such Stockholder acquires Ownership after the date of this Agreement; provided, however, that all such securities listed in clauses (i) and (ii) shall cease to be Subject Securities upon a Transfer of such securities permitted by this Agreement.

     A Person is deemed to have effected a “ Transfer ” of a security if such Person directly or indirectly (i) sells, pledges, encumbers, grants an option with respect to, transfers or disposes of such security or any interest in such security to any Person (other than Parent, any subsidiary of Parent or any Person party to this Agreement), (ii) enters into an agreement or commitment contemplating the possible sale of, pledge of, encumbrance of, grant of an option with respect to, transfer of or disposition of such security or any interest therein to any Person (other than Parent, any subsidiary of Parent or any Person party to this Agreement), or (iii) reduces such Person’s beneficial ownership of, or interest in, such security.

     “ Voting Covenant Expiration Date ” means the earliest to occur of (i) the date upon which the Merger Agreement is validly terminated pursuant to the terms of Section 10.1 thereof, (ii) the date upon which this Agreement terminates pursuant to the terms of Section 7.14, and (iii) the Effective Time of the Merger.

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      1.2 Rules of Construction .

     (a) Unless otherwise indicated, the words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement, and any reference in this Agreement to any Caption, Recital, Article, Section or clause shall be to the Captions, Recitals, Articles, Sections and clauses of this Agreement.

     (b) The words “include,” “includes” and “including” are deemed to be followed by the phrase “without limitation.” Any reference to the masculine, feminine or neuter gender shall include each other gender and any reference to the singular or plural shall include the other, in each case unless the context otherwise requires.

ARTICLE II

TRANSFER OF SUBJECT SECURITIES; VOTING RIGHTS

      2.1 Restriction on Transfer of Subject Securities . During the period from the date of this Agreement through the Voting Covenant Expiration Date, no Stockholder shall, directly or indirectly, cause any Transfer of any of its Subject Securities to be effected, and each Stockholder shall use commercially reasonable efforts not to permit any Transfer of any of its Subject Securities to be effected, except in connection with the Merger, unless the transferee agrees in writing to be bound by the terms hereof.

      2.2 Restriction on Transfer of Voting Rights . During the period from the date of this Agreement through the Voting Covenant Expiration Date, except as otherwise provided by this Agreement, no Stockholder shall (a) deposit any of its Subject Securities into a voting trust or (b) except for this Agreement, grant proxy (revocable or irrevocable) or power of attorney or enter into any voting agreement or similar agreement, with respect to any of the Subject Securities.

ARTICLE III

VOTING OF SHARES

      3.1 Voting Covenant . Each Stockholder hereby agrees that, during the period commencing on the date hereof and continuing until the Voting Covenant Expiration Date, at any meeting of the stockholders of the Company, however called, and in connection with any written action by consent of stockholders of the Company, unless otherwise directed in writing by Parent, it shall cause its Subject Securities to be voted to the extent any of the Subject Securities may be voted:

     (a) in favor the adoption of the Merger Agreement, the Merger and the other actions contemplated by the Merger Agreement, and in favor of any action in furtherance of any of the foregoing; and

     (b) against any action or agreement that Parent has advised Stockholder in writing in advance would result in a breach of any representation, warranty, covenant or obligation of the Company in the Merger Agreement.

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ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS

     Each Stockholder hereby represents and warrants to Parent as follows:

      4.1 No Conflicts or Consents . The execution and delivery of this Agreement by the Stockholder do not, and the performance of this Agreement by the Stockholder will not, (i) to the Stockholder’s knowledge, conflict with or violate any Law or Judgment applicable to the Stockholder or by which the Stockholder is or may be bound or affected, (ii) result in or constitute (with or without notice or lapse of time) any breach of or default under, or give to any other Person (with or without notice or lapse of time) any right of termination, amendment, acceleration or cancellation of, or result (with or without notice or lapse of time) in the creation of any encumbrance or restriction on any of its Subject Securities pursuant to, any agreement, contract or other arrangement (whether written or oral) to which the Stockholder is a party or by which the Stockholder is or may be bound or affected or (iii) require any consent or approval of any Person; provided, however, that the failure of clauses (i), (ii) or (iii) of this representation to be true and correct in all respects shall not be a breach of this Agreement if such failure does not, in any manner, impair or delay the ability of such Stockholder to perform its obligatio


 
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