VOTING AGREEMENT
Exhibit 4.1
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.
“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.
2
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.
3
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
4
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.
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 VGE A46
Facsimile No.: x0 000 000 0000
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX VGE 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.
The Chrysler Building
000 Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxx, Esq.
if to Parent:
Gasco Energy, Inc.
5
0 Xxxxxxxxx Xxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: X. Xxxx Xxxxx
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.
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.
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
6
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
7
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.
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.
8
[Signature page follows.]
9
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as of the date first
written above.
GASCO ENERGY, INC. | ||||||
By: | /s/ Xxxx X. Xxxxxxxx | |||||
Name: | Xxxx X. Xxxxxxxx | |||||
Title: | President and Chief Executive Officer | |||||
XXXXXXX X. XXXXX | ||||||
By: | /s/ Xxxxxxx X. Xxxxx | |||||
Name: | Xxxxxxx X. Xxxxx | |||||
Title: | Director, Chief Executive Officer, President and Chief Financial Officer | |||||
XXXXXXX XXX | ||||||
By: | /s/ Xxxxxxx Xxx | |||||
Name: | Xxxxxxx Xxx | |||||
Title: | Director | |||||
[SIGNATURE PAGE TO VOTING AGREEMENT]
XXX XXXXXXXX | ||||||
By: | /s/ Xxx Xxxxxxxx | |||||
Name: | Xxx Xxxxxxxx | |||||
Title: | Director | |||||
XXXXXXX X. XXXXXXX | ||||||
By: | /s/ Xxxxxxx X. Xxxxxxx | |||||
Name: | Xxxxxxx X. Xxxxxxx | |||||
Title: | Director | |||||
XXXXXX XXXXXXX | ||||||
By: | /s/ Xxxxxx Xxxxxxx | |||||
Name: | Xxxxxx Xxxxxxx | |||||
Title: | Director | |||||
[SIGNATURE PAGE TO VOTING AGREEMENT]
XXXXXX XXXXXX | ||||||
By: | /s/ Xxxxxx Xxxxxx | |||||
Name: | Xxxxxx Xxxxxx | |||||
Title: | Director | |||||
[SIGNATURE PAGE TO VOTING AGREEMENT]