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Exhibit 99.1
STOCKHOLDER VOTING
AGREEMENT
THIS
STOCKHOLDER VOTING AGREEMENT (this " Agreement ") is made, entered
into, and effective as of January 25, 2005 by and among
Cimarex Energy Co., a Delaware corporation (the "
Cimarex "), and the
persons listed on Schedule A ( Stockholders ) to this Agreement
(each, a " Stockholder
" and, collectively, the " Stockholders ").
RECITALS
WHEREAS,
concurrently with the execution and delivery of this Agreement,
Cimarex, Cimarex Nevada Acquisition Co., a Nevada corporation and a
wholly-owned subsidiary of Cimarex (" Merger Sub "), and Magnum Hunter
Resources, Inc., a Nevada corporation (" Magnum "), are entering into an
Agreement and Plan of Merger (the " Merger
Agreement "), which provides, among other
things, for the merger of Merger Sub with and into Magnum (the
" Merger "), all
on the terms and subject to the conditions set forth in the Merger
Agreement; and
WHEREAS, as an
inducement and a condition to entering into the Merger Agreement,
Cimarex has required that each Stockholder agree, and each
Stockholder has agreed, to enter into this Agreement;
AGREEMENT
NOW, THEREFORE,
in and as consideration of and for the foregoing premises and the
representations, warranties, agreements, and covenants contained in
this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as
follows:
1.
Definitions . Any and
all capitalized terms used in this Agreement and not otherwise
defined in this Agreement shall have the meaning(s) assigned to
such term(s) in the Merger Agreement which is incorporated herein
by reference.
2.
Voting . Unless and
until this Agreement is terminated:
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(a) Each
Stockholder shall, at each meeting of the stockholders of Magnum,
if any, however called, or in connection with each written consent
of the stockholders of Magnum, if any, vote (or cause to be voted)
all shares of Company Common Stock then held of record and/or
beneficially owned by such Stockholder (the " Shares ") (to the extent such
Stockholder has the right to vote or direct the voting of such
Shares), (i) in favor of the Merger, the execution and
delivery by Magnum of the Merger Agreement and the approval of the
terms thereof and each of the other actions contemplated by the
Merger Agreement and this Agreement and any actions required in
furtherance thereof and hereof and (ii) against any proposal
relating to a Superior Proposal and against any action or agreement
that would impede, frustrate, prevent, or nullify this Agreement,
or result in a breach in any respect of any covenant,
representation, or warranty or any other obligation or agreement of
Magnum under the Merger Agreement or which would result in any of
the conditions set forth in Article VI of the Merger Agreement
not being fulfilled.
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(b) Each
Stockholder hereby covenants and agrees that, except as
contemplated by this Agreement and/or the Merger Agreement, such
Stockholder shall not (i) offer to transfer (which term shall
include, without limitation, any sale, tender, gift, pledge,
assignment or other disposition), transfer, or consent to any
transfer of, any of the Shares beneficially owned by such
Stockholder (to the extent such Stockholder has the right to
dispose of or direct the disposition of such Shares) or any
interest therein without the prior written consent of Cimarex, such
consent not to be unreasonably withheld, conditioned, or delayed in
the case of a gift or similar estate planning transaction (it being
understood that Cimarex may decline to consent to any such transfer
if the person acquiring such Shares does not agree to take such
Shares subject to the terms of this Agreement), (ii) enter
into any contract, option, or other agreement or understanding with
respect to any transfer of any such Shares or any interest therein,
(iii) grant any proxy, power-of-attorney, or other
authorization or consent in or with respect to any such Shares
(other than pursuant to and in accordance with this Agreement),
(iv) deposit any such Shares into a voting trust or enter into
a voting agreement or arrangement with respect to any such Shares
(other than pursuant to and in accordance with this Agreement), or
(v) take any other action that would make any representation
or warranty of such Stockholder contained herein untrue or
incorrect in any material respect or in any way restrict, limit, or
interfere in any material respect with the performance of the
obligations of such Stockholder hereunder or the transactions
contemplated hereby or by the Merger Agreement.
(c) Subject
to the terms and conditions of this Agreement, each of the parties
hereto agrees to use all commercially reasonable efforts to take,
or cause to be taken, all actions, and to do, or cause to be done,
all things necessary, proper, and/or advisable under applicable
laws to consummate and make effective the transactions contemplated
by this Agreement. Each party hereto shall promptly consult with
the other parties hereto and provide any necessary information and
material with respect to all filings made by any party hereto with
any Governmental Authority in connection with this Agreement and
the transactions contemplated hereby.
(d) Each
Stockholder hereby waives any rights of appraisal or rights to
dissent from the Merger that such Stockholder may have.
3.
Representations and Warranties of Each
Stockholder . Each Stockholder hereby
represents and warrants, severally and not jointly, to Cimarex as
follows:
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(a)
Ownership of Shares .
Such Stockholder is the "beneficial owner" (as defined in
Rule 13d-3 under the Securities Exchange Act of 1934, as
amended, which meaning shall apply for all purposes of this
Agreement) of, and has the sole power to vote and dispose of, the
number of Shares set forth opposite the name of such Stockholder on
Schedule A ( Stockholders
) hereto and is the beneficial owner of options
and/or warrants (collectively, the " Options ") to purchase the number
of shares of Company Common Stock set forth opposite the name of
such Stockholder on Schedule A ( Stockholders ) hereto, in each
case, free and clear of any security interests, liens, charges,
encumbrances, equities, claims, options or limitations of whatever
nature and free of any other limitation or restriction (including,
without limitation, any restriction on the right to vote, sell, or
otherwise dispose of such Shares or Options), except, in each case,
as may exist by reason of this Agreement or pursuant to applicable
law or, in the case of the Options, the restrictions on
transferability and/or on exercise or purchase provided for in the
applicable option or warrant agreement and/or any related plan, as
applicable. The number of Shares and Options set forth opposite the
name of such Stockholder on Schedule A ( Stockholders ) hereto represents
all of the shares of capital stock of Magnum beneficially owned by
such Stockholder as of the date of this Agreement.
2
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(b) Such
Stockholder has the power and authority to enter into and perform
all of such Stockholder's obligations under this Agreement. This
Agreement has been duly and validly executed and delivered by such
Stockholder and, assuming due execution and delivery by, and
enforceability against, Cimarex, constitutes a legal, valid and
binding agreement of such Stockholder, enforceable against such
Stockholder in accordance with its terms, except as such
enforcement may be limited by any equitable defense. There is no
beneficiary or holder of a voting trust certificate or other
interest of any trust of which such Stockholder is a trustee, or
any party to any o
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