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
”).
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:
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.
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.
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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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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