VOTING AGREEMENT
Exhibit
4.1
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This
VOTING AGREEMENT (this “Agreement”)
is
entered into as of September 20, 2006, by and among Gasco Energy, Inc., a
Nevada
corporation (“Parent”)
and
Xxxxxxx X. Xxxxx, Xxxxxxx Xxx, Xxx Xxxxxxxx, Xxxxxxx X. Xxxxxxx, Xxxxxx Xxxxxxx
and Xxxxxx Xxxxxx (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.
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“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 obligations under this Agreement
or
invalidate (in whole or in part) any actions taken pursuant to this
Agreement.
4.2 Title
to Securities.
As of
the date of this Agreement, (a) the Stockholder Owns (free and clear of any
encumbrances or restrictions, except such as may exist under applicable
securities laws) the Subject Securities set forth under the heading “Subject
Securities” below the Stockholder’s name on the signature page hereof, and (b)
the Stockholder does not Own, directly or indirectly, any Subject Securities
other than those set forth under the name of the Stockholder on the signature
page hereof. None of the Subject Securities Owned by the Stockholder is subject
to any proxy, voting trust or other agreement, arrangement or restriction
(whether written or oral) with respect to the voting of the Subject Securities,
except as contemplated by this Agreement.
ARTICLE
V
TERMINATION
5.1 Termination.
Except
as provided in Section 7.14, this Agreement shall terminate on the Voting
Covenant Expiration Date.
5.2 Effect
of Termination.
Immediately upon the termination of this Agreement in accordance with Section
5.1 or Section 7.14, this Agreement and all obligations hereunder of the
parties
hereto shall be terminated in all respects.
ARTICLE
VI
ADDITIONAL
COVENANTS OF THE STOCKHOLDERS
6.1 Stockholder
Information.
Each
Stockholder hereby agrees to permit Parent and Merger Sub to publish and
disclose the Stockholder’s identity and ownership of Subject Securities and the
nature of the Stockholder’s commitments, arrangements and understandings under
this Agreement in any prospectus or offering memorandum prepared in connection
with the transactions contemplated by the Merger Agreement and in any disclosure
required to be filed by Parent, Merger Sub or any of its Affiliates with
any
Governmental Entity.
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6.2 Waiver
of Appraisal Rights.
Each
Stockholder hereby irrevocably and unconditionally waives, and agrees to
cause
to be waived and to prevent the exercise of, any rights of appraisal, any
dissenters’ rights and any similar rights relating to the Merger or any related
transaction that the Stockholder may have by virtue of any Subject Securities
Owned by the Stockholder (whether under the General Corporation Law of the
State
of Nevada, by written or unwritten agreement, contract, arrangement or
otherwise).
6.3 Further
Assurances.
If the
Stockholder is the beneficial owner, but not the record owner, of any Subject
Securities, the Stockholder agrees to take all actions to cause the record
holder and any of its nominees to vote all of such Subject Securities as
required by Sections 3.1 and 3.2 hereof. The Stockholder shall execute and
deliver, or cause to be executed and delivered, such additional transfers,
assignments, endorsements, proxies, consents and other instruments, and shall
take such further actions, as Parent may reasonably request for the purpose
of
carrying out the transactions contemplated by this Agreement.
ARTICLE
VII
MISCELLANEOUS
7.1 Expenses.
Except
as otherwise set forth herein, all costs and expenses incurred in connection
with the transactions contemplated by this Agreement shall be paid by the
party
incurring such costs and expenses.
7.2 Notices.
Any
notice or other communication required or permitted to be delivered to either
party under this Agreement shall be in writing and shall be deemed properly
delivered, given and received when delivered (by hand, by registered mail,
by
courier or express delivery service or by facsimile) to the address or facsimile
telephone number set forth beneath the name of such party below (or to such
other address or facsimile telephone number as such party shall have specified
in a written notice given to the other party):
if
to the
Stockholder:
c/o
Xxxx
XxXxxxxx
0000
Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx,
XX X0X A46
Facsimile
No.: x0 000 000 0000
with
a
copy to:
Xxxxxxxxxx
& Xxxxx, LLP
The
Chrysler Building
000
Xxxxxxxxx Xxxxxx
00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxx Xxxxxxxx, Esq.
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if
to
Parent:
Gasco
Energy, Inc.
0
Xxxxxxxxx Xxxxx Xxxx
Xxxxx
000
Xxxxxxxxx,
XX 00000
Attention:
X. Xxxx Xxxxx
with
copies to:
Xxxxxx
& Xxxxxx L.L.P.
First
City Tower
0000
Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxx 00000-0000
Fax:
(000) 000-0000
Attention: Xxxx
Xxxxxx, Esq.
7.3 Severability.
Any
term or provision of this Agreement that is invalid or unenforceable in any
situation in any jurisdiction shall not affect the validity or enforceability
of
the remaining terms and provisions hereof or the validity or enforceability
of
the offending term or provision in any other situation or in any other
jurisdiction. If the final judgment of a court of competent jurisdiction
declares that any term or provision hereof is invalid or unenforceable, the
parties hereto agree that the court making such determination shall have
the
power to limit the term or provision, to delete specific words or phrases,
or to
replace any invalid or unenforceable term or provision with a term or provision
that is valid and enforceable and that comes closest to expressing the intention
of the invalid or unenforceable term or provision, then this Agreement shall
be
enforceable as so modified. In the event such court does not exercise the
power
granted to it in the prior sentence, the parties hereto agree to replace
such
invalid or unenforceable term or provision with a valid and enforceable term
or
provision that will achieve, to the greatest extent possible, the economic,
business, legal and other purposes of such invalid or unenforceable term.
7.4 Entire
Agreement.
This
Agreement and any other documents delivered by the parties in connection
herewith constitute the entire agreement between the parties with respect
to the
subject matter hereof and thereof and supersede all prior agreements and
understandings between the parties with respect thereto. No addition to or
modification of any provision of this Agreement shall be binding upon either
party unless made in writing and signed by both parties.
7.5 Assignment;
Binding Effect.
This
Agreement shall be binding upon each Stockholder and its successors and assigns,
and shall inure to the benefit of Parent and its successors and assigns.
Without
limiting any of the restrictions set forth in Article II or Article VI
or elsewhere in this Agreement, this Agreement shall be binding upon any
Person
to whom any Subject Securities are Transferred or otherwise conveyed. Nothing
in
this Agreement is intended to confer on any Person (other than Parent and
its
successors and assigns) any rights or remedies of any nature.
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7.6 Specific
Performance.
The
parties agree that irreparable damage would occur in the event that any of
the
provisions of this Agreement were not performed in accordance with its specific
terms or were otherwise breached. Each Stockholder agrees that, in the event
of
any breach or threatened breach by a Stockholder of any covenant or obligation
contained in this Agreement, Parent shall be entitled (in addition to any
other
remedy that may be available to it, including monetary damages) to seek and
obtain (a) a decree or order of specific performance to enforce the observance
and performance of such covenant or obligation, and (b) an injunction
restraining such breach or threatened breach.
7.7 Non-Exclusivity.
The
rights and remedies of Parent under this Agreement are not exclusive of or
limited by any other rights or remedies which it may have, whether at law,
in
equity, by contract or otherwise, all of which shall be cumulative (and not
alternative). Without limiting the generality of the foregoing, the rights
and
remedies of Parent under this Agreement, and the obligations and liabilities
of
the Stockholders under this Agreement, are in addition to their respective
rights, remedies, obligations and liabilities under all applicable Laws.
7.8 Governing
Law; Venue.
(a) This
Agreement shall be construed in accordance with, and governed in all respects
by, the Laws of the State of Nevada (without giving effect to principles
of
conflicts of Laws provisions of such State).
(b) THE
PARTIES HERETO IRREVOCABLY SUBMIT TO THE JURISDICTION OF THE DISTRICT COURT
OF
WASHOE COUNTY OF THE STATE OF NEVADA AND THE FEDERAL COURTS OF THE UNITED
STATES
OF AMERICA LOCATED IN THE STATE OF NEVADA SOLELY IN CONNECTION WITH ANY DISPUTE
THAT ARISES IN RESPECT OF THE INTERPRETATION AND ENFORCEMENT OF THE PROVISIONS
OF THIS AGREEMENT OR IN RESPECT OF THE TRANSACTIONS CONTEMPLATED HEREBY,
AND
HEREBY WAIVE, AND AGREE NOT TO ASSERT, AS A DEFENSE IN ANY ACTION, SUIT OR
PROCEEDING FOR INTERPRETATION OR ENFORCEMENT HEREOF THAT IT IS NOT SUBJECT
THERETO OR THAT SUCH ACTION, SUIT OR PROCEEDING MAY NOT BE BROUGHT OR IS
NOT
MAINTAINABLE IN SAID COURTS OR THAT VENUE THEREOF MAY NOT BE APPROPRIATE
OR THAT
THIS AGREEMENT MAY NOT BE ENFORCED IN OR BY SUCH COURTS, AND THE PARTIES
HERETO
IRREVOCABLY AGREE THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION, SUIT OR
PROCEEDING SHALL BE HEARD AND DETERMINED EXCLUSIVELY BY SUCH A NEVADA STATE
OR
FEDERAL COURT. THE PARTIES HEREBY CONSENT TO AND GRANT ANY SUCH COURT
JURISDICTION OVER THE PERSON OF SUCH PARTIES AND OVER THE SUBJECT MATTER
OF SUCH
DISPUTE AND AGREE THAT MAILING OF PROCESS OR OTHER PAPERS IN CONNECTION WITH
SUCH ACTION, SUIT OR PROCEEDING IN THE MANNER PROVIDED IN SECTION 8.2 OR
IN SUCH
OTHER MANNER AS MAY BE PERMITTED BY LAW SHALL BE VALID AND SUFFICIENT SERVICE
THEREOF.
(c) EACH
PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER
THIS
AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE
EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH
PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT
(I)
NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER; (II) SUCH PARTY UNDERSTANDS
AND HAS CONSIDERED THE IMPLICATIONS OF THE FOREGOING WAIVER; (III) SUCH PARTY
MAKES THE FOREGOING WAIVER VOLUNTARILY AND (IV) SUCH PARTY HAS BEEN INDUCED
TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND
CERTIFICATIONS IN THIS SECTION 7.8.
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7.9 Counterparts.
This
Agreement may be executed in separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts shall
together constitute one and the same instrument. Execution of this Agreement
by
facsimile transmission shall be deemed effective delivery of an original
counterpart of this Agreement.
7.10 Captions.
The
captions contained in this Agreement are for convenience of reference only,
shall not be deemed to be a part of this Agreement and shall not be referred
to
in connection with the construction or interpretation of this
Agreement.
7.11 Waiver.
No
failure on the part of Parent to exercise any power, right, privilege or
remedy
under this Agreement, and no delay on the part of Parent in exercising any
power, right, privilege or remedy under this Agreement, shall operate as
a
waiver of such power, right, privilege or remedy; and no single or partial
exercise of any such power, right, privilege or remedy shall preclude any
other
or further exercise thereof or of any other power, right, privilege or remedy.
Parent shall not be deemed to have waived any claim available to Parent arising
out of this Agreement, or any power, right, privilege or remedy of Parent
under
this Agreement, unless the waiver of such claim, power, right, privilege
or
remedy is expressly set forth in a written instrument duly executed and
delivered on behalf of Parent; and any such waiver shall not be applicable
or
have any effect except in the specific instance in which it is given.
7.12 Stockholder
Capacity.
Each
Stockholder signs solely in its capacity as the record holder or beneficial
owner of such Stockholder’s Subject Shares. Nothing herein shall limit or affect
any actions taken by a Person affiliated with a Stockholder, who is or becomes
a
director or officer of the Company to the extent this Agreement could be
construed to restrict the exercise by such Person of his or her fiduciary
duties
as a director or officer of the Company.
7.13 Legend.
Upon
the request of Parent, each Stockholder shall cause each certificate evidencing
any of the Subject Securities that are issued in the name of such Stockholder
to
bear a legend indicating that such Subject Securities are subject to the
terms
of this Agreement, including the restrictions on transfer and voting set
forth
herein.
7.14 Amendment
of Merger Agreement.
The
obligations of the Stockholders under this Agreement shall terminate if the
Merger Agreement is amended or otherwise modified after the date hereof without
the prior written consent of the Stockholders in a manner that changes the
form
of Merger Consideration in a manner adverse to the Stockholders in a material
respect.
[Signature
page follows.]
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IN
WITNESS WHEREOF, the undersigned have duly executed this Agreement as of
the
date first written above.
GASCO
ENERGY, INC.
By: ______________________
|
Name:
|
Xxxx
X. Xxxxxxxx
|
|
Title:
|
President
and Chief Executive Officer
|
XXXXXXX
X. XXXXX
By: ______________________
|
Name:
|
Xxxxxxx
X. Xxxxx
|
|
Title:
|
Director,
Chief Executive Officer, President and Chief Financial
Officer
|
XXXXXXX
XXX
By: ______________________
|
Name:
|
Xxxxxxx
Xxx
|
|
Title:
|
Director
|
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XXX
XXXXXXXX
By: ______________________
|
Name:
|
Xxx
Xxxxxxxx
|
|
Title:
|
Director
|
XXXXXXX
X. XXXXXXX
By: ______________________
|
Name:
|
Xxxxxxx
X. Xxxxxxx
|
|
Title:
|
Director
|
XXXXXX
XXXXXXX
By: ______________________
|
Name:
|
Xxxxxx
Xxxxxxx
|
|
Title:
|
Director
|
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XXXXXX
XXXXXX
By: ______________________
|
Name:
|
Xxxxxx
Xxxxxx
|
|
Title:
|
Director
|
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