Exhibit 2
VOTING AGREEMENT
THIS VOTING AGREEMENT ("Voting Agreement") is made and entered into as
of June 20, 2002 by and among Xxxxxxx Xxxxxx, Xxxx X. Xxxxxx and each of the
persons or entities listed on Annex A and executing a counterpart signature page
hereto (each, a "Holder").
Recitals
Prior to the execution of this Voting Agreement, Sontra Medical, Inc.,
a Delaware corporation ("SM"), ChoiceTel Communications, Inc., a Minnesota
corporation ("CC") and CC Merger Corp., a Delaware corporation and a
wholly-owned subsidiary of CC ("CC Sub"), have entered into an Agreement and
Plan of Reorganization, dated as of February 27, 2002 (the "Merger Agreement")
providing for the merger of CC Sub with and into SM (the "Merger"). As a result
of the Merger, which is intended to qualify as a reorganization within the
meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended, the
stockholders of SM will become shareholders of CC. Holder is, or will be at the
Effective Time (as defined in the Merger Agreement) pursuant to the terms of the
Merger, the holder of record and the beneficial owner (as defined in Rule 13d-3
under the Securities Exchange Act of 1934, as amended, (the "Exchange Act") of
the number of shares of the capital stock of CC indicated on the counterpart
signature page of this Voting Agreement (the "Shares"). As a condition to CC's
obligation to consummate the Merger pursuant to the Merger Agreement, CC has
requested that each Holder agree, and in consideration, and to induce the
consummation of the Merger, each Holder is willing to agree to vote the Shares
and any other shares of capital stock of CC acquired after the Effective Time
and prior to the Expiration Date (as defined below) ("New Shares") so as to
facilitate the election of Xxxxxxx Xxxxxx and Xxxx X. Xxxxxx (together, the "CC
Nominees") to the Board of Directors of CC following the Merger, as more fully
described below.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
Agreement
Section 1 Agreement to Vote Shares. Each Holder hereby agrees to
appear, or cause the holder of record on any applicable record date to appear in
person or by proxy for the purpose of obtaining a quorum at any annual or
special meeting of shareholders of CC following the Merger, and at any
adjournment thereof, called for the purpose of electing directors of CC. At
every meeting of the CC shareholders called for the purpose of electing
directors of CC, and at any adjournment thereof, and with respect to every
action or approval by written consent of CC shareholders solicited for the
purpose of electing directors of CC, each Holder shall vote the Shares and any
New Shares, to the extent permitted by law and pursuant to CC's Articles of
Incorporation and Bylaws, (i) to cause and maintain the election to the Board of
Directors of CC each of the CC Nominees and (ii) against the approval of any
other proposal or action which would or could reasonably be expected to impede,
frustrate, prevent, prohibit or discourage the election to the Board of
Directors of CC each of the CC Nominees. Each Holder of Shares, as the Holder of
voting stock of CC, shall be present, in person or by proxy, at all meetings of
shareholders of CC so that all Shares and New Shares are counted for the
purposes of
determining the presence of a quorum at such meetings. The provisions of this
Section are intended to bind the Holders only with respect to the specific
matters set forth herein, and shall not prohibit any Holder from acting in
accordance with any fiduciary duties of such Holder as an officer or director of
CC. Each Holder agrees that any New Shares shall be subject to the terms and
conditions of this Voting Agreement to the same extent as if such shares
constituted Shares.
Section 2 Representations, Warranties and Covenants of Each Holder.
Each Holder hereby represents, warrants and covenants to the CC Nominees as
follows:
(a) Ownership of Shares. Holder (i) is (or will be upon
consummation of the Merger) the holder of record and beneficial owner
of the Shares and will be the holder of record and beneficial owner of
all New Shares, if any, which following the Effective Time and at all
times until the Expiration Date will be free and clear of any liens,
claims, options, charges or other encumbrances that would interfere
with the voting of the Shares or the granting of any proxy with respect
thereto, (ii) does not beneficially own any shares of capital stock of
CC other than the Shares (except to the extent that Holder currently
disclaims beneficial ownership in accordance with applicable law) and
(iii) has full power and authority to make, enter into, deliver and
carry out the terms of this Voting Agreement.
(b) No Voting Trusts and Agreements. Between the date of this
Agreement and the Expiration Date, Holder will not, and will not permit
any entity under Holder's control to, deposit any Shares or New Shares
held by Holder or such entity in a voting trust or subject any Shares
or New Shares held by such Holder or such entity to any arrangement or
agreement with respect to the voting of such shares of capital stock,
other than agreements contemplated by the Merger Agreement.
(c) Validity; No Conflict. This Voting Agreement has been
authorized by all necessary action (corporate or otherwise) on the part
of the Holder, has been duly executed by a duly authorized officer on
behalf of Holder, and constitutes the legal, valid and binding
obligation of Holder. Neither the execution of this Voting Agreement by
Holder nor the consummation of the transactions contemplated herein
will violate or result in a breach of (i) any provision of any trust,
charter, partnership agreement or other charter document applicable to
Holder, (ii) any agreement to which Holder is a party or by which
Holder is bound, (iii) any decree, judgment or order to which Holder is
subject, or (iv) any law or regulation now in effect applicable to
Holder.
Section 3 Representations, Warranties and Covenants of the CC
Nominees. Each of the CC Nominees represents, warrants and covenants to the
Holders as follows:
(a) Due Authorization. This Voting Agreement has been
authorized by all necessary action on the part of the CC Nominee.
(b) Validity; No Conflict. This Voting Agreement constitutes
the legal, valid and binding obligation of the CC Nominee. Neither the
execution of this Voting Agreement by the CC Nominee nor the
consummation of the transactions contemplated herein will violate or
result in a breach of (i) any agreement to which the CC Nominee is a
party or by which the CC Nominee is bound, (ii) any decree, judgment or
order to which the CC Nominee is subject, or (iii) any law or
regulation now in effect applicable to the CC Nominee.
Section 4 Termination. Notwithstanding any other provision
contained herein, this Voting Agreement and all obligations of the Holders
hereunder shall terminate as of (i) immediately following the third meeting of
the shareholders of CC called for the purpose of electing directors of CC or
(ii) on the third (3rd) anniversary of the Effective Time, whichever is later
(the "Expiration Date").
Section 5 Confidentiality. Each of the parties to this Voting
Agreement agrees (i) to hold any information regarding this Agreement in strict
confidence and (ii) not to divulge any such information to any third person,
except to the extent required by law or to the extent that any of the same is
hereafter publicly disclosed by CC or SM.
Section 6 Additional Documents. Each CC Nominee and each Holder
hereby covenants and agrees to execute and deliver any additional documents
necessary or desirable, in the reasonable opinion of such CC Nominee's or such
Holder's legal counsel, as the case may be, to carry out the intent of this
Voting Agreement.
Section 7 Miscellaneous.
(a) Severability. If any term, provision, covenant or
restriction of this Voting Agreement (i) is held by a court of
competent jurisdiction to be invalid, void or unenforceable for any
reason, or (ii) would preclude the Merger from qualifying as a
reorganization within the meaning of Section 368(a) of the Internal
Revenue Code of 1986, as amended, such term, provision, covenant or
restriction shall be modified or voided, as may be necessary to achieve
the intent of the parties to the extent possible, and the remainder of
the terms, provisions, covenants and restrictions of this Voting
Agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
(b) Binding Effect and Assignment. This Voting Agreement and
all of the provisions hereof shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
permitted assigns, but, except as otherwise specifically provided
herein, neither this Voting Agreement nor any of the rights, interests
or obligations of the parties hereto may be assigned by either of the
parties hereto without the prior written consent of the other, and any
attempted assignment thereof without such consent shall be null and
void.
(c) Amendments and Modifications. This Voting Agreement may
not be modified, amended, altered or supplemented except upon the
execution and delivery of a
written agreement executed by the CC Nominees and a two-thirds majority
in interest of the Holders.
(d) Specific Performance: Injunctive Relief. The parties
hereto acknowledge that each of the CC Nominees will be irreparably
harmed by a breach of any of the covenants or agreements of the Holders
set forth herein and that there will be no adequate remedy at law for
such a breach. Therefore, it is agreed that, in addition to any other
remedies which may be available to the CC Nominees upon such breach,
the CC Nominees shall have the right to enforce such covenants and
agreements by specific performance, injunctive relief or by any other
means available to it at law or in equity.
(e) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and sufficient if
delivered in person, by commercial overnight courier service, by
confirmed telecopy, or sent by mail (registered or certified mail,
postage prepaid, return receipt requested), to the respective parties
as follows:
If to Xxxxxxx Xxxxxx: XX Xxx 000
0000 Xxxxxxx Xxxx
Xxxx Xxxx, XX 00000-0000
Facsimile: (000) 000-0000
If to Xxxx X. Xxxxxx: 0000 Xxxxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
If to a Holder: To the address for notice set
forth on the last page hereof.
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
only be effective upon receipt.
(f) Governing Law. This Voting Agreement shall be governed by,
construed and enforced in accordance with the laws of the State of
Delaware, without giving effect to principles of conflicts of law. Each
party hereto irrevocably and unconditionally consents and submits to
the jurisdiction of the courts of the State of Delaware and of the
United States of America located in the State of Delaware for any
actions, suits or proceedings arising out of or relating to this
agreement and the transactions contemplated hereby.
(g) Entire Agreement. This Voting Agreement contains the
entire understanding of the parties with respect to the subject matter
hereof, and supersedes all prior negotiations and understandings
between the parties with respect to such subject matter.
(h) Counterparts. This Voting Agreement may be executed in one
or more counterparts, each of which shall be an original, but all of
which together shall constitute one and the same instrument.
(i) Effect of Headings. The section headings contained herein are for
convenience only and shall not affect the construction or interpretation of
this Voting Agreement.
(j) Holder Capacity. Notwithstanding anything herein to the contrary,
no person executing this Agreement who is, or becomes during the term
hereof, a director of CC or SM makes any agreement or understanding herein
in his or her capacity as such director, and the agreements set forth
herein shall in no way restrict any director in the exercise of his or her
fiduciary duties as a director of CC or SM, as the case may be. Each Holder
has executed this Agreement solely in his or her capacity as the record or
beneficial holder of such Holder's Shares or as the trustee of a trust
whose beneficiaries are the beneficial owners of such Holder's Shares. In
addition, no Holder makes any representation or warranty as to the fitness
or competence of any person to serve on CC's Board of Directors by virtue
of such Holder's execution of this Voting Agreement or by the act of such
Holder in voting for such person pursuant to this Agreement.
IN WITNESS WHEREOF, the parties have caused this Voting
Agreement to be duly executed on the day and year first above written.
/s/ Xxxxxxx Xxxxxx
--------------------------------------------
Xxxxxxx Xxxxxx
/s/ Xxxx X. Xxxxxx
--------------------------------------------
Xxxx X. Xxxxxx
COUNTERPART SIGNATURE PAGE TO VOTING AGREEMENT
DATED AS OF JUNE 20, 2002
BY AND AMONG
XXXXXXX XXXXXX, XXXX X. XXXXXX AND EACH HOLDER SET FORTH ON ANNEX A THERETO
The undersigned hereby executes and delivers the Voting Agreement to which this
counterpart signature page is attached, effective as of the date of the Voting
Agreement, which Voting Agreement and counterpart signature page, together with
all counterparts of such Voting Agreement and signature pages of the other
Holders named in such Voting Agreement, shall constitute one and the same
document in accordance with the terms of the Voting Agreement.
HOLDER
/s/ Xxxxx X. XxXxx, Xx.
-----------------------------------------------
Xxxxx X. XxXxx, Xx.
Holder's Address for Notice:
Sontra Medical, Inc.
----------------------------------------------
00 Xxxxxxx Xxxxxx
----------------------------------------------
Xxxxxxxxx, XX 00000
----------------------------------------------
Number of Shares owned beneficially:
493,735
-----------------------------------------------
Number of Shares owned of record (if different
from above):
368,817
-----------------------------------------------
COUNTERPART SIGNATURE PAGE TO VOTING AGREEMENT
DATED AS OF JUNE 20, 2002
BY AND AMONG
XXXXXXX XXXXXX, XXXX X. XXXXXX AND EACH HOLDER SET FORTH ON
ANNEX A THERETO
The undersigned hereby executes and delivers the Voting Agreement to which this
counterpart signature page is attached, effective as of the date of the Voting
Agreement, which Voting Agreement and counterpart signature page, together with
all counterparts of such Voting Agreement and signature pages of the other
Holders named in such Voting Agreement, shall constitute one and the same
document in accordance with the terms of the Voting Agreement.
HOLDER
/s/ Xxxxxx X. Xxxxxx
------------------------------------------------
Xxxxxx X. Xxxxxx
Holder's Address for Notice:
00 Xxxxxxxx Xxxx
------------------------------------------------
Xxxxxx, XX 00000
------------------------------------------------
Number of Shares owned beneficially:
493,735
------------------------------------------------
Number of Shares owned of record (if different
from above):
435,925
------------------------------------------------
COUNTERPART SIGNATURE PAGE TO VOTING AGREEMENT
DATED AS OF JUNE 20, 2002
BY AND AMONG
XXXXXXX XXXXXX, XXXX X. XXXXXX AND EACH HOLDER SET FORTH ON
ANNEX A THERETO
The undersigned hereby executes and delivers the Voting Agreement to which this
counterpart signature page is attached, effective as of the date of the Voting
Agreement, which Voting Agreement and counterpart signature page, together with
all counterparts of such Voting Agreement and signature pages of the other
Holders named in such Voting Agreement, shall constitute one and the same
document in accordance with the terms of the Voting Agreement.
HOLDER
/s/ Xxxxxx Xxxx
-----------------------------------------------
Xxxxxx Xxxx
Holder's Address for Notice:
000 Xxxxxxxxxxxxx Xxxxxx #000
-----------------------------------------------
Xxxxxxxxx, XX 00000
-----------------------------------------------
Number of Shares owned beneficially:
493,735
------------------------------------
Number of Shares owned of record (if different
from above):
493,735
------------------------------------
COUNTERPART SIGNATURE PAGE TO VOTING AGREEMENT
DATED AS OF JUNE 20, 2002
BY AND AMONG
XXXXXXX XXXXXX, XXXX X. XXXXXX AND EACH HOLDER SET FORTH ON
ANNEX A THERETO
The undersigned hereby executes and delivers the Voting Agreement to which this
counterpart signature page is attached, effective as of the date of the Voting
Agreement, which Voting Agreement and counterpart signature page, together with
all counterparts of such Voting Agreement and signature pages of the other
Holders named in such Voting Agreement, shall constitute one and the same
document in accordance with the terms of the Voting Agreement.
HOLDER
ESSEX WOODLANDS HEALTH VENTURES
FUND IV, L.P.
By: Essex Woodlands Health Ventures
IV, L.L.C., general partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
Holder's Address for Notice:
Waterway Plaza Two
------------------
00000 Xxxxxxxx Xxxxxx Xxxxx
---------------------------
Suite 175
----------
The Xxxxxxxxx, Xxxxx 00000
---------------------------------------
Number of Shares owned beneficially:
1,453,429
---------------------------------------
Number of Shares owned of record (if
different from above):
1,453,429
---------------------------------------
COUNTERPART SIGNATURE PAGE TO VOTING AGREEMENT
DATED AS OF JUNE 20, 2002
BY AND AMONG
XXXXXXX XXXXXX, XXXX X. XXXXXX AND EACH HOLDER SET FORTH ON
ANNEX A THERETO
The undersigned hereby executes and delivers the Voting Agreement to which this
counterpart signature page is attached, effective as of the date of the Voting
Agreement, which Voting Agreement and counterpart signature page, together with
all counterparts of such Voting Agreement and signature pages of the other
Holders named in such Voting Agreement, shall constitute one and the same
document in accordance with the terms of the Voting Agreement.
HOLDER
VANGUARD VI, L.P.
By: Vanguard VI Venture Partners,
L.L.C., general partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Member
Holder's Address for Notice:
0000 Xxxx Xxx Xxxxxxxxx
---------------------------------------
Xxxxxxx, XX 00000
---------------------------------------
Number of Shares owned beneficially:
1,303,788
---------------------------------------
Number of Shares owned of record (if
different from above):
1,303,788
---------------------------------------
COUNTERPART SIGNATURE PAGE TO VOTING AGREEMENT
DATED AS OF JUNE 20, 2002
BY AND AMONG
XXXXXXX XXXXXX, XXXX X. XXXXXX AND EACH HOLDER SET FORTH ON
ANNEX A THERETO
The undersigned hereby executes and delivers the Voting Agreement to which this
counterpart signature page is attached, effective as of the date of the Voting
Agreement, which Voting Agreement and counterpart signature page, together with
all counterparts of such Voting Agreement and signature pages of the other
Holders named in such Voting Agreement, shall constitute one and the same
document in accordance with the terms of the Voting Agreement.
HOLDER
VANGUARD VI AFFILIATES FUND, L.P.
By: Vanguard VI Venture Partners,
L.L.C., general partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Member
Holder's Address for Notice:
0000 Xxxx Xxx Xxxxxxxxx
---------------------------------------
Xxxxxxx, XX 00000
---------------------------------------
Number of Shares owned beneficially:
53,922
---------------------------------------
Number of Shares owned of record (if
different from above):
53,922
---------------------------------------
COUNTERPART SIGNATURE PAGE TO VOTING AGREEMENT
DATED AS OF JUNE 20, 2002
BY AND AMONG
XXXXXXX XXXXXX, XXXX X. XXXXXX AND EACH HOLDER SET FORTH ON ANNEX A THERETO
The undersigned hereby executes and delivers the Voting Agreement to which this
counterpart signature page is attached, effective as of the date of the Voting
Agreement, which Voting Agreement and counterpart signature page, together with
all counterparts of such Voting Agreement and signature pages of the other
Holders named in such Voting Agreement, shall constitute one and the same
document in accordance with the terms of the Voting Agreement.
HOLDER
H&Q HEALTHCARE INVESTORS
By: /s/ Xxxx X. Xxxx
----------------------------------
Name: Xxxx X. Xxxx
Title: President Emeritus
Holder's Address for Notice:
00 Xxxxx Xxxxx
-------------------------------------
Xxxxxx, XX 00000
-------------------------------------
Number of Shares owned beneficially:
685,621
-------------------------------------
Number of Shares owned of record
(if different from above):
685,621
-------------------------------------
COUNTERPART SIGNATURE PAGE TO VOTING AGREEMENT
DATED AS OF JUNE 20, 2002
BY AND AMONG
XXXXXXX XXXXXX, XXXX X. XXXXXX AND EACH HOLDER SET FORTH ON ANNEX A THERETO
The undersigned hereby executes and delivers the Voting Agreement to which this
counterpart signature page is attached, effective as of the date of the Voting
Agreement, which Voting Agreement and counterpart signature page, together with
all counterparts of such Voting Agreement and signature pages of the other
Holders named in such Voting Agreement, shall constitute one and the same
document in accordance with the terms of the Voting Agreement.
HOLDER
H&Q LIFE SCIENCES INVESTORS
By: /s/ Xxxx X. Xxxx
----------------------------------
Name: Xxxx X. Xxxx
Title: President Emeritus
Holder's Address for Notice:
00 Xxxxx Xxxxx
-------------------------------------
Xxxxxx, XX 00000
-------------------------------------
Number of Shares owned beneficially:
457,081
-------------------------------------
Number of Shares owned of record (if
different from above):
457,081
-------------------------------------
ANNEX A
Xxxxx X. XxXxx, Xx.
Xxxxxx X. Xxxxxx
Xxxxxx Xxxx
Essex Woodlands Health Ventures Fund IV, L.P.
Vanguard VI, L.P.
Vanguard VI Affiliates Fund, L.P.
H&Q Healthcare Investors
H&Q Life Sciences Investors
