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.
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.
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