<PAGE>
INFORMATION REQUIREMENTS FOR FILINGS UPON ACQUISITION
OF FIVE PERCENT OF A CLASS OF EQUITY SECURITIES SUBJECT
TO THE REPORTING REQUIREMENTS OF THE 1934 ACT
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 2)*
PHOTOGEN TECHNOLOGIES, INC.
(Name of Issuer)
COMMON STOCK
(Title of Class of Securities)
71932A-10-1
(CUSIP Number)
John T. Smolik
c/o Photogen Technologies, Inc.,
7327 OAK RIDGE HIGHWAY, SUITE B, KNOXVILLE, TN 37931 (423/769-4012)
(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications)
JULY 27, 1998
(Date of Event Which Requires Filing of this Statement)
If the person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box / /.
NOTE: Six copies of this statement, including all exhibits, should be
filed with the Commission. See Rule 13d-1(a) for other parties to whom
copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a proper cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section
of the Act but shall be subject to all other provisions of the Act (however,
see the Notes).
<PAGE>
CUSIP No. 71932A-10-1
- ------------------------------------------------------------------------------
(1) Names of Reporting Persons.
S.S. or I.R.S. Identification John T. Smolik
Nos. of Above Persons
- ------------------------------------------------------------------------------
(2) Check the Appropriate Box if a (a) X
--------------------------
Member of a Group (See Instructions) (b)
--------------------------
- ------------------------------------------------------------------------------
(3) SEC Use Only
- ------------------------------------------------------------------------------
(4) Source of Funds (See Instructions) 00
- ------------------------------------------------------------------------------
(5) Check if Disclosure of Legal Proceedings
is Required Pursuant to Items 2(d) or 2(e)
- ------------------------------------------------------------------------------
(6) Citizenship or Place of Organization United States
- ------------------------------------------------------------------------------
Number of Shares Beneficially (7) Sole Voting Power 4,588,000(A)
Owned by Each Reporting Person ----------------------------------------------
With (8) Shared Voting Power 0(A)
----------------------------------------------
(9) Sole Dispositive Power 4,588,000
----------------------------------------------
(10) Shared Dispositive Power 0
- ------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned
By Each Reporting Person 4,588,000(A)
- ------------------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11)
Excludes Certain Shares (See Instructions) [X](A)
- ------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount
in Row (11) 12.44%
- ------------------------------------------------------------------------------
(14) Type of Reporting Person (See Instructions) IN
- ------------------------------------------------------------------------------
(A) Excludes all shares owned beneficially by the other reporting persons
indicated in this Schedule 13D, as to which this reporting person disclaims
beneficial ownership. See description of Amended and Restated Voting Agreement
in Item 4, below.
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<PAGE>
CUSIP No. 71932A-10-1
- ------------------------------------------------------------------------------
(1) Names of Reporting Persons.
S.S. or I.R.S. Identification Eric A. Wachter, Ph.D.
Nos. of Above Persons
- ------------------------------------------------------------------------------
(2) Check the Appropriate Box if a (a) X
--------------------------
Member of a Group (See Instructions) (b) ---------------------
- ------------------------------------------------------------------------------
(3) SEC Use Only
- ------------------------------------------------------------------------------
(4) Source of Funds (See Instructions) 00
- ------------------------------------------------------------------------------
(5) Check if Disclosure of Legal Proceedings
is Required Pursuant to Items 2(d) or 2(e)
- ------------------------------------------------------------------------------
(6) Citizenship or Place of Organization United States
- ------------------------------------------------------------------------------
Number of Shares Beneficially (7) Sole Voting Power 4,588,000(A)
Owned by Each Reporting Person ----------------------------------------------
With (8) Shared Voting Power 0(A)
----------------------------------------------
(9) Sole Dispositive Power 4,588,000
----------------------------------------------
(10) Shared Dispositive Power 0
- ------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned
By Each Reporting Person 4,588,000(A)
- ------------------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11)
Excludes Certain Shares (See Instructions) [X](A)
- ------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount
in Row (11) 12.44%
- ------------------------------------------------------------------------------
(14) Type of Reporting Person (See Instructions) IN
- ------------------------------------------------------------------------------
(A) Excludes all shares owned beneficially by the other reporting persons
indicated in this Schedule 13D, as to which this reporting person disclaims
beneficial ownership. See description of Amended and Restated Voting Agreement
in Item 4, below.
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<PAGE>
CUSIP No. 71932A-10-1
- ------------------------------------------------------------------------------
(1) Names of Reporting Persons.
S.S. or I.R.S. Identification Craig Dees, Ph.D.
Nos. of Above Persons
- ------------------------------------------------------------------------------
(2) Check the Appropriate Box if a (a) X
--------------------------
Member of a Group (See Instructions) (b) ---------------------
- ------------------------------------------------------------------------------
(3) SEC Use Only
- ------------------------------------------------------------------------------
(4) Source of Funds (See Instructions) 00
- ------------------------------------------------------------------------------
(5) Check if Disclosure of Legal Proceedings
is Required Pursuant to Items 2(d) or 2(e)
- ------------------------------------------------------------------------------
(6) Citizenship or Place of Organization United States
- ------------------------------------------------------------------------------
Number of Shares Beneficially (7) Sole Voting Power 4,588,000(A)
Owned by Each Reporting Person ----------------------------------------------
With (8) Shared Voting Power 0(A)
----------------------------------------------
(9) Sole Dispositive Power 4,588,000
----------------------------------------------
(10) Shared Dispositive Power 0
- ------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned
By Each Reporting Person 4,588,000(A)
- ------------------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11)
Excludes Certain Shares (See Instructions) [X](A)
- ------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount
in Row (11) 12.44%
- ------------------------------------------------------------------------------
(14) Type of Reporting Person (See Instructions) IN
- ------------------------------------------------------------------------------
(A) Excludes all shares owned beneficially by the other reporting persons
indicated in this Schedule 13D, as to which this reporting person disclaims
beneficial ownership. See description of Amended and Restated Voting Agreement
in Item 4, below.
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<PAGE>
CUSIP No. 71932A-10-1
- ------------------------------------------------------------------------------
(1) Names of Reporting Persons.
S.S. or I.R.S. Identification Walter G. Fisher, Ph.D.
Nos. of Above Persons
- ------------------------------------------------------------------------------
(2) Check the Appropriate Box if a (a) X
--------------------------
Member of a Group (See Instructions) (b) ---------------------
- ------------------------------------------------------------------------------
(3) SEC Use Only
- ------------------------------------------------------------------------------
(4) Source of Funds (See Instructions) 00
- ------------------------------------------------------------------------------
(5) Check if Disclosure of Legal Proceedings
is Required Pursuant to Items 2(d) or 2(e)
- ------------------------------------------------------------------------------
(6) Citizenship or Place of Organization United States
- ------------------------------------------------------------------------------
Number of Shares Beneficially (7) Sole Voting Power 2,288,000(A)
Owned by Each Reporting Person -----------------------------------------------
With (8) Shared Voting Power 0(A)
-----------------------------------------------
(9) Sole Dispositive Power 2,288,000
-----------------------------------------------
(10) Shared Dispositive Power 0
- ------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned
By Each Reporting Person 2,288,000(A)
- ------------------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11)
Excludes Certain Shares (See Instructions) [X](A)
- ------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount
in Row (11) 6.20%
- ------------------------------------------------------------------------------
(14) Type of Reporting Person (See Instructions) IN
- ------------------------------------------------------------------------------
(A) Excludes all shares owned beneficially by the other reporting persons
indicated in this Schedule 13D, as to which this reporting person disclaims
beneficial ownership, except that Dr. Fisher does not disclaim beneficial
ownership of shares owned by the Fisher Family Investment Limited Partnership.
See description of Amended and Restated Voting Agreement in Item 4, below.
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<PAGE>
CUSIP No. 71932A-10-1
- ------------------------------------------------------------------------------
(1) Names of Reporting Persons. Fisher Family Investment
S.S. or I.R.S. Identification Limited Partnership
Nos. of Above Persons
- ------------------------------------------------------------------------------
(2) Check the Appropriate Box if a (a) X
--------------------------
Member of a Group (See Instructions) (b) ---------------------
- ------------------------------------------------------------------------------
(3) SEC Use Only
- ------------------------------------------------------------------------------
(4) Source of Funds (See Instructions) 00
- ------------------------------------------------------------------------------
(5) Check if Disclosure of Legal Proceedings
is Required Pursuant to Items 2(d) or 2(e)
- ------------------------------------------------------------------------------
(6) Citizenship or Place of Organization Delaware
- ------------------------------------------------------------------------------
Number of Shares Beneficially (7) Sole Voting Power 2,300,000(A)
Owned by Each Reporting Person -----------------------------------------------
With (8) Shared Voting Power 0(A)
-----------------------------------------------
(9) Sole Dispositive Power 2,300,000
-----------------------------------------------
(10) Shared Dispositive Power 0
- ------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned
By Each Reporting Person 2,300,000(A)
- ------------------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11)
Excludes Certain Shares (See Instructions) [X](A)
- ------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount
in Row (11) 6.24%
- ------------------------------------------------------------------------------
(14) Type of Reporting Person (See Instructions) PN
- ------------------------------------------------------------------------------
(A) Excludes all shares owned beneficially by the other reporting persons
indicated in this Schedule 13D, as to which this reporting person disclaims
beneficial ownership, except that the partnership does not disclaim beneficial
ownership of shares owned by Walter G. Fisher, Ph.D. See description of Amended
and Restated Voting Agreement in Item 4, below.
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<PAGE>
CUSIP No. 71932A-10-1
- ------------------------------------------------------------------------------
(1) Names of Reporting Persons.
S.S. or I.R.S. Identification Timothy Scott, Ph.D.
Nos. of Above Persons
- ------------------------------------------------------------------------------
(2) Check the Appropriate Box if a (a) X
--------------------------
Member of a Group (See Instructions) (b) ---------------------
- ------------------------------------------------------------------------------
(3) SEC Use Only
- ------------------------------------------------------------------------------
(4) Source of Funds (See Instructions) 00
- ------------------------------------------------------------------------------
(5) Check if Disclosure of Legal Proceedings
is Required Pursuant to Items 2(d) or 2(e)
- ------------------------------------------------------------------------------
(6) Citizenship or Place of Organization United States
- ------------------------------------------------------------------------------
Number of Shares Beneficially (7) Sole Voting Power 2,288,000(A)
Owned by Each Reporting Person -----------------------------------------------
With (8) Shared Voting Power 0(A)
-----------------------------------------------
(9) Sole Dispositive Power 2,288,000
-----------------------------------------------
(10) Shared Dispositive Power 0
- ------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned
By Each Reporting Person 2,288,000(A)
- ------------------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11)
Excludes Certain Shares (See Instructions) [X](A)
- ------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount
in Row (11) 6.20%
- ------------------------------------------------------------------------------
(14) Type of Reporting Person (See Instructions) IN
- ------------------------------------------------------------------------------
(A) Excludes all shares owned beneficially by the other reporting persons
indicated in this Schedule 13D, as to which this reporting person disclaims
beneficial ownership, except that Dr. Scott does not disclaim beneficial
ownership of shares owned by the Scott Family Investment Limited Partnership.
See description of Amended and Restated Voting Agreement in Item 4, below.
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<PAGE>
CUSIP No. 71932A-10-1
- ------------------------------------------------------------------------------
(1) Names of Reporting Persons. Scott Family Investment
S.S. or I.R.S. Identification Limited Partnership
Nos. of Above Persons
------------------------------------------------------------------
(2) Check the Appropriate Box if a (a) X
--------------------------
Member of a Group (See Instructions) (b) ---------------------
- ------------------------------------------------------------------------------
(3) SEC Use Only
- ------------------------------------------------------------------------------
(4) Source of Funds (See Instructions) 00
- ------------------------------------------------------------------------------
(5) Check if Disclosure of Legal Proceedings
is Required Pursuant to Items 2(d) or 2(e)
- ------------------------------------------------------------------------------
(6) Citizenship or Place of Organization Delaware
- ------------------------------------------------------------------------------
Number of Shares Beneficially (7) Sole Voting Power 2,300,000(A)
Owned by Each Reporting Person -----------------------------------------------
With (8) Shared Voting Power 0(A)
-----------------------------------------------
(9) Sole Dispositive Power 2,300,000
-----------------------------------------------
(10) Shared Dispositive Power 0
- ------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned
By Each Reporting Person 2,300,000(A)
- ------------------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11)
Excludes Certain Shares (See Instructions) [X](A)
- ------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount
in Row (11) 6.24%
- ------------------------------------------------------------------------------
(14) Type of Reporting Person (See Instructions) PN
- ------------------------------------------------------------------------------
(A) Excludes all shares owned beneficially by the other reporting persons
indicated in this Schedule 13D, as to which this reporting person disclaims
beneficial ownership, except that the partnership does not disclaim beneficial
ownership of the shares owned by Timothy Scott, Ph.D. See description of
Amended and Restated Voting Agreement in Item 4, below.
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<PAGE>
CUSIP No. 71932A-10-1
- ------------------------------------------------------------------------------
(1) Names of Reporting Persons.
S.S. or I.R.S. Identification Robert J. Weinstein, M.D. and
Nos. of Above Persons Lois Weinstein (joint tenants)
- ------------------------------------------------------------------------------
(2) Check the Appropriate Box if a (a) X
--------------------------
Member of a Group (See Instructions) (b) ---------------------
- ------------------------------------------------------------------------------
(3) SEC Use Only
- ------------------------------------------------------------------------------
(4) Source of Funds (See Instructions) PF
- ------------------------------------------------------------------------------
(5) Check if Disclosure of Legal Proceedings
is Required Pursuant to Items 2(d) or 2(e)
- ------------------------------------------------------------------------------
(6) Citizenship or Place of Organization United States
- ------------------------------------------------------------------------------
Number of Shares Beneficially (7) Sole Voting Power 1,955,421(A)
Owned by Each Reporting Person ----------------------------------------------
With (8) Shared Voting Power 0(A)
----------------------------------------------
(9) Sole Dispositive Power 1,955,421
----------------------------------------------
(10) Shared Dispositive Power 0
- ------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned
By Each Reporting Person 1,955,421(A)
- ------------------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11)
Excludes Certain Shares (See Instructions) [X](A)
- ------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount
in Row (11) 5.30%
- ------------------------------------------------------------------------------
(14) Type of Reporting Person (See Instructions) IN
- ------------------------------------------------------------------------------
(A) Excludes all shares owned beneficially by the other reporting persons
indicated in this Schedule 13D, as to which this reporting person disclaims
beneficial ownership, except that Dr. and Mrs. Weinstein do not disclaim
beneficial ownership of the shares owned by W.F. Investments Enterprises Limited
Partnership or by the Robert and Lois Weinstein Family Foundation, Inc. See
description of Amended and Restated Voting Agreement in Item 4, below.
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<PAGE>
CUSIP No. 71932A-10-1
- ------------------------------------------------------------------------------
(1) Names of Reporting Persons.
S.S. or I.R.S. Identification W.F. Investments Enterprises,
Nos. of Above Persons Limited Partnership
- ------------------------------------------------------------------------------
(2) Check the Appropriate Box if a (a) X
--------------------------
Member of a Group (See Instructions) (b) ---------------------
- ------------------------------------------------------------------------------
(3) SEC Use Only
- ------------------------------------------------------------------------------
(4) Source of Funds (See Instructions) OO
- ------------------------------------------------------------------------------
(5) Check if Disclosure of Legal Proceedings
is Required Pursuant to Items 2(d) or 2(e)
- ------------------------------------------------------------------------------
(6) Citizenship or Place of Organization Georgia
- ------------------------------------------------------------------------------
Number of Shares Beneficially (7) Sole Voting Power 1,400,000 (A)
Owned by Each Reporting Person ----------------------------------------------
With (8) Shared Voting Power 0(A)
----------------------------------------------
(9) Sole Dispositive Power 1,400,000
----------------------------------------------
(10) Shared Dispositive Power 0
- ------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned
By Each Reporting Person 1,400,000(A)
- ------------------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11)
Excludes Certain Shares (See Instructions) [X](A)
- ------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount
in Row (11) 3.80%
- ------------------------------------------------------------------------------
(14) Type of Reporting Person (See Instructions) PN
- ------------------------------------------------------------------------------
(A) Excludes all shares owned beneficially by the other reporting persons
indicated in this Schedule 13D, as to which this reporting person disclaims
beneficial ownership, except that the partnership does not disclaim beneficial
ownership of the shares owned by Robert J. Weinstein, M.D. and Lois Weinstein or
by the Robert and Lois Weinstein Family Foundation, Inc. See description of
Amended and Restated Voting Agreement in Item 4, below.
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<PAGE>
CUSIP No. 71932A-10-1
- ------------------------------------------------------------------------------
(1) Names of Reporting Persons.
S.S. or I.R.S. Identification Robert and Lois Weinstein
Nos. of Above Persons Family Foundation, Inc.
- ------------------------------------------------------------------------------
(2) Check the Appropriate Box if a (a) X
--------------------------
Member of a Group (See Instructions) (b) ---------------------
- ------------------------------------------------------------------------------
(3) SEC Use Only
- ------------------------------------------------------------------------------
(4) Source of Funds (See Instructions) PF
- ------------------------------------------------------------------------------
(5) Check if Disclosure of Legal Proceedings
is Required Pursuant to Items 2(d) or 2(e)
- ------------------------------------------------------------------------------
(6) Citizenship or Place of Organization Illinois
- ------------------------------------------------------------------------------
Number of Shares Beneficially (7) Sole Voting Power 100,000(A)
Owned by Each Reporting Person ----------------------------------------------
With (8) Shared Voting Power 0(A)
----------------------------------------------
(9) Sole Dispositive Power 100,000
----------------------------------------------
(10) Shared Dispositive Power 0
- ------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned
By Each Reporting Person 100,000(A)
- ------------------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11)
Excludes Certain Shares (See Instructions) [X](A)
- ------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount
in Row (11) .27%
- ------------------------------------------------------------------------------
(14) Type of Reporting Person (See Instructions) CO
- ------------------------------------------------------------------------------
(A) Excludes all shares owned beneficially by the other reporting persons
indicated in this Schedule 13D, as to which this reporting person disclaims
beneficial ownership, except that the foundation does not disclaim beneficial
ownership of shares owned by Robert J. Weinstein, M.D. and Lois Weinstein or by
W.F. Investments Enterprises Limited Partnership. See description of Voting
Agreement in Item 4, below.
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<PAGE>
Item 1. SECURITY AND ISSUER.
The title of the class of securities to which this Schedule 13D
relates is Common Stock ("Common Stock") of Photogen Technologies, Inc., a
Nevada corporation (the "Issuer"). The principal executive offices of the
Issuer are located at 7327 Oak Ridge Highway, Suite B, Knoxville, TN 37931.
Item 2. IDENTITY AND BACKGROUND.
Set forth below is the following information with respect to each
of the persons filing this Schedule 13D (together, the "Filing Persons") and,
in addition, each of such person's general partners, if applicable, and, if
applicable, the persons controlling such general partners (such additional
persons, together with the Filing Persons, the "Item 2 Persons"): (a) name;
(b) address of principal offices (if entity) or residence or business address
(if individual); (c) principal business (if entity) or principal occupation
and name, business and address of employer (if individual); (d) information
concerning criminal convictions during the last five years; (e) information
concerning civil or administrative proceedings under state or federal
securities laws during the past five years with respect to any state or
federal securities laws and (f) citizenship (if individual) or jurisdiction
of organization (if entity).
I.
a) John T. Smolik
b) Photogen Technologies, Inc., 7327 Oak Ridge Highway, Suite B,
Knoxville, TN 37931
c) Chairman of the Board, President, Chief Executive Officer and Chief
Financial Officer of Photogen Technologies, Inc., 7327 Oak Ridge
Highway, Suite B, Knoxville, TN 37931
d) No criminal convictions (1)
e) No adverse civil judgments for violations of securities laws (1)
f) United States
II.
a) Eric A. Wachter, Ph.D.
b) Photogen Technologies, Inc., 7327 Oak Ridge Highway, Suite B,
Knoxville, TN 37931
c) Director and employee (research scientist) of Photogen
Technologies, Inc., 7327 Oak Ridge Highway, Suite B,
Knoxville, TN 37931
d) No criminal convictions (1)
No adverse civil judgments for violations of securities laws (1)
f) United States
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<PAGE>
III.
a) Craig Dees, Ph.D.
b) Photogen Technologies, Inc., 7327 Oak Ridge Highway, Suite B,
Knoxville, TN 37931
c) Director and employee (research scientist) of Photogen Technologies, Inc.,
7327 Oak Ridge Highway, Suite B, Knoxville, TN 37931
d) No criminal convictions (1)
e) No adverse civil judgments for violations of securities laws (1)
f) United States
IV.
a) Walter G. Fisher, Ph.D.
b) Photogen Technologies, Inc., 7327 Oak Ridge Highway, Suite B,
Knoxville, TN 37931
c) Director and employee (research scientist) of Photogen Technologies, Inc.,
7327 Oak Ridge Highway, Suite B, Knoxville, TN 37931
d) No criminal convictions (1)
e) No adverse civil judgments for violations of securities laws (1)
f) United States
V.
a) Fisher Family Investment Limited Partnership
b) c/o Walter Fisher, Ph.D., 7327 Oak Ridge Highway, Suite B,
Knoxville, TN 37931
c) Investment partnership
d) No criminal convictions (1)
e) No adverse civil judgments for violations of securities laws (1)
f) Delaware
VI.
a) Timothy Scott, Ph.D.
b) Photogen Technologies, Inc., 7327 Oak Ridge Highway, Suite B,
Knoxville, TN 37931
c) Employee (research scientist) of Photogen Technologies, Inc., 7327
Oak Ridge Highway, Suite B, Knoxville, TN 37931
d) No criminal convictions (1)
e) No adverse civil judgments for violations of securities laws (1)
f) United States
VII.
a) Scott Family Investment Limited Partnership
b) c/o Timothy Scott, Ph.D., 7327 Oak Ridge Highway, Suite B,
Knoxville, TN 37931
c) Investment partnership
d) No criminal convictions (1)
e) No adverse civil judgments for violations of securities laws (1)
f) Delaware
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<PAGE>
VIII.
a) Robert J. Weinstein, M.D.
b) 875 North Michigan Avenue, Suite 2930, Chicago, IL 60611
c) Private investor, 875 North Michigan Avenue, Suite 2930, Chicago, IL 60611
d) No criminal convictions (1)
e) No adverse civil judgments for violations of securities laws (1)
f) United States
IX.
a) W.F. Investments Enterprises, Limited Partnership
b) c/o Robert J. Weinstein, M.D., 875 North Michigan Avenue, Suite 2930,
Chicago, IL 60611
c) Investment partnership
d) No criminal convictions (1)
e) No adverse civil judgments for violations of securities laws (1)
f) Georgia
X.
a) Robert and Lois Weinstein Family Foundation, Inc.
b) c/o Robert J. Weinstein, M.D., 875 North Michigan Avenue, Suite 2930,
Chicago, IL 60611
c) Not-for-profit corporation formed for investment purposes
d) No criminal convictions (1)
e) No adverse civil judgments for violations of securities laws (1)
f) United States
(1) During the last five years, no person listed above has been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors), nor has any such person been a party to a civil proceeding of
a judicial or administrative body of competent jurisdiction that resulted in
such person becoming subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to,
federal or state securities laws or finding any violation with respect to
such laws.
Item 3 SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Mr. Smolik and Drs. Wachter, Dees, Fisher and Scott acquired their
Common Stock from the Issuer on May 16, 1997 as a result of the merger
between Photogen, Inc. (of which they were the sole stockholders) and a
wholly-owned subsidiary of Issuer. The consideration for the Common Stock
Mr. Smolik and Drs. Wachter, Dees, Fisher and Scott received from the Issuer
was their interest in Photogen, Inc.
Dr. Weinstein and his wife acquired 3,239,350 shares of Common Stock on
December 9, 1994 from the Issuer in a private transaction (adjusted to
reflect a subsequent two-for-one reverse stock split). The purchase price
was $.0231528 per share, which Dr. Weinstein and his wife paid with their
personal funds.
-14-
<PAGE>
On May 16, 1997, the Issuer sold 2,975,359 shares of Common Stock to
Dr. and Mrs. Weinstein in a private transaction. The purchase price was
$.28568 per share, which Dr. Weinstein and his wife paid with their personal
funds. (These purchases were part of a stockholder restructuring in which
Dr. Weinstein and his wife transferred 2,714,288 shares to the Issuer's
treasury for cancellation.)
Subsequently, Robert J. Weinstein, M.D. and Lois Weinstein conveyed
1,400,000 shares of common stock to the W.F. Investments Enterprises Limited
Partnership, a family partnership, and a 100,000 shares of Common Stock to
the Robert and Lois Weinstein Family Foundation, Inc., a not-for-profit
corporation, both of which are jointly controlled by Dr. and Mrs. Weinstein.
Dr. and Mrs. Weinstein retain beneficial ownership of all 100,000 shares of
stock held by the family foundation and all 1,400,000 shares held by the
limited partnership.
On or about June 30, 1998, both Walter Fisher, Ph.D. and Timothy
Scott, Ph.D., conveyed 2,300,000 shares each of Photogen Technologies, Inc.
common stock to the Fisher Family Investment Limited Partnership and the
Scott Family Investment Limited Partnership, respectively. Dr. Fisher and
Dr. Scott each retain beneficial ownership of the shares held by their
respective family partnerships.
Item 4. PURPOSE OF TRANSACTION.
The reporting persons filed their original Schedule 13D as a result
of the Issuer's registration of its common stock under Section 12(g) of the
Securities Exchange Act of 1934 pursuant to a Form 10-SB filed with the
Securities and Exchange Commission. All of the shares of Common Stock
subject to this Schedule 13D have been owned by the reporting persons prior
to the effectiveness of the Issuer's Section 12(g) registration.
Mr. Smolik and Drs. Wachter, Dees, Fisher and Weinstein are officers
and/or directors of the Issuer, and they are in a position to influence
management of the Issuer. In that capacity, they may consider from time to
time various plans for the Issuer to raise additional capital which may have
the effect of changing the present capitalization of the Issuer.
The shares of Common Stock beneficially owned by the reporting persons
are subject to an Amended and Restated Voting Agreement and, accordingly, the
parties to the Amended and Restated Voting Agreement may be deemed to share
voting power with respect to their shares. The reporting persons originally
entered into a Voting Agreement dated May 16, 1997 (the "Original
Agreement"), which was amended and replaced by the Amended and Restated
Voting Agreement dated June 17, 1998 (the "Amended Agreement"). The Original
Agreement was amended to reflect the increase in size of the Board of
Directors from five to six and to remove Theodore Tannebaum, Stuart P. Levine
and Thomas B. Rosenberg as parties. The Amended and Restated Voting
Agreement was entered into among Eric Wachter, Ph.D., Craig Dees, Ph.D.,
Walter Fisher, Ph.D., Tim Scott, Ph.D. and John Smolik (the "Tennessee
Stockholders") and Robert Weinstein, M.D. (the "Chicago Stockholder"). The
Amended Agreement generally provides that the Tennessee Stockholders and
Chicago Stockholder will vote shares of common stock beneficially owned by
them (i) in accordance with the unanimous recommendation of the Board of
Directors with respect to any amendments to the Articles of Incorporation or
Bylaws,
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<PAGE>
(ii) to fix the number of directors at six, (iii) to elect to the Board of
Directors four persons nominated by holders of 80% of the shares of the
Tennessee Stockholders and one person nominated by holders of 80% of the
shares of the Chicago Stockholder (and to remove any such director at the
request of the stockholders who nominated him), and (iv) to fix the number of
directors on the Board's Executive Committee at three, two of whom will be
selected by the Tennessee Stockholders and one of whom will be selected by
the Chicago Stockholder. The original Voting Agreement was amended effective
as of June 17, 1998 and arrangements to finalize the amendment and other
matters related to the amendment were completed on July 27, 1998. The
Amended Agreement is attached as Exhibit 1 to this Schedule 13D.
Except as described above, no reporting person has any current plans or
proposals that relate to or would result in:
a. The acquisition by any person of additional securities of the Issuer,
or the disposition of securities of the Issuer;
b. An extraordinary corporate transaction, such as a merger, reorganization
or liquidation, involving the Issuer or any of its subsidiaries;
c. A sale or transfer of a material amount of assets of the Issuer or any of
its subsidiaries;
d. Any change in the present board of directors or management of the Issuer,
including any plans or proposals to change the number or term of directors
or to fill any existing vacancies on the board;
e. Any material change in the present capitalization or dividend policy of
the Issuer;
f. Any other material change in the Issuer's business or corporate structure;
g. Changes in the Issuer's charter, bylaws or instruments corresponding
thereto or other actions which may impede the acquisition of control of
the Issuer by any person;
h. Causing a class of securities of the Issuer to be delisted from a national
securities exchange or to cease to be authorized to be quoted in an
inter-dealer quotation system of a registered national securities
association;
i. A class of equity securities of the Issuer becoming eligible for
termination of registration pursuant to Section 12(g)(4) of the Exchange
Act; or
j. Any action similar to any of those enumerated above.
-16-
<PAGE>
Item 5. INTEREST IN SECURITIES OF THE ISSUER.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Common Stock
Name of Beneficially % of Voting Power
Item of Person Owned Class (1)
- --------------------------------------------------------------------------------
<S> <C> <C> <C>
John T. Smolik 4,588,000(2) 12.44% Sole (3)
- --------------------------------------------------------------------------------
Eric A. Wachter, Ph.D. 4,588,000(2) 12.44% Sole (3)
- --------------------------------------------------------------------------------
Craig Dees, Ph.D. 4,588,000(2) 12.44% Sole (3)
- --------------------------------------------------------------------------------
Walter G. Fisher, 2,288,000(2) 6.20% Sole (3)
Ph.D.
- --------------------------------------------------------------------------------
Fisher Family 2,300,000(2) 6.24% Sole (3)
Investment Partnership
- --------------------------------------------------------------------------------
Timothy Scott, Ph.D. 2,288,000(2) 6.20% Sole (3)
- --------------------------------------------------------------------------------
Scott Family 2,300,000(2) 6.24% Sole (3)
Investment Partnership
- --------------------------------------------------------------------------------
Robert J. Weinstein, 1,955,421(2) 5.30% Sole (3)
M.D. and Lois
Weinstein (joint tenants)
- --------------------------------------------------------------------------------
Robert and Lois 100,000(2) .27% Sole (3)
Weinstein Family
Foundation, Inc.
- --------------------------------------------------------------------------------
W.F. Investments 1,400,000(2) 3.80% Sole (3)
Enterprises, Limited
Partnership
- --------------------------------------------------------------------------------
</TABLE>
(1) All percentages in this table are based, pursuant to Rule 13d-1(e) of
the Securities Exchange Act of 1934, on the 36,875,001 shares of Common Stock
of the Issuer outstanding as of May 11, 1998.
(2) Excludes shares of Common Stock owned by other reporting persons that
are subject to the Amended and Restated Voting Agreement described in Item 4,
above.
(3) Common Stock owned by this reporting person is subject to the Amended
and Restated Agreement described in Item 4, above, which requires such person
to vote such shares as specified therein.
Item 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER.
-17-
<PAGE>
The Amended and Restated Voting Agreement among the reporting persons is
described in Item 4, above. There are no other contracts, arrangements or
understandings among any of the Item 2 Persons made or entered into specifically
with respect to holding, voting or disposing of the Common Stock of the Issuer.
Item 7. MATERIAL TO BE FILED AS EXHIBITS.
The following exhibits are filed with this Schedule 13D:
1. Joint Filing Agreement by and among Craig Dees, Ph.D., Walter Fisher,
Ph.D., Timothy Scott, Ph.D., John Smolik, Eric A. Wachter, Ph.D. and Robert
Weinstein, M.D. and Lois Weinstein dated July 27, 1998.
2. Amended and Restated Voting Agreement by and among Eric Wachter, Ph.D.,
Craig Dees, Ph.D., Walter Fisher, Ph.D., Tim Scott, Ph.D., John Smolik,
and Robert Weinstein, M.D., dated June 17, 1998.
-18-
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete
and correct.
Dated: August 5, 1998
/s/ John T. Smolik
------------------------------------
JOHN T. SMOLIK
/s/ Eric A. Wachter
------------------------------------
ERIC A. WACHTER, Ph.D.
/s/ Craig Dees
------------------------------------
CRAIG DEES, Ph.D.
/s/ Walter G. Fisher
------------------------------------
WALTER G. FISHER, Ph.D.
FISHER FAMILY INVESTMENT
LIMITED PARTNERSHIP
/s/ Walter Fisher
------------------------------------
By: Walter Fisher, Ph.D.
Its: General Partner
/s/ Timothy Scott
------------------------------------
TIMOTHY SCOTT, Ph.D.
SCOTT FAMILY INVESTMENT
LIMITED PARTNERSHIP
/s/ Timothy Scott
------------------------------------
By: Timothy Scott, Ph.D.
Its: General Partner
-19-
<PAGE>
/s/ Robert J. Weinstein
------------------------------------
ROBERT J. WEINSTEIN, M.D.
W.F. INVESTMENTS ENTERPRISES,
LIMITED PARTNERSHIP
/s/ Robert J. Weinstein
-------------------------------------
By: Robert J. Weinstein, M.D.
Its: General Partner
ROBERT AND LOIS WEINSTEIN
FAMILY FOUNDATION, INC.
/s/ Robert J. Weinstein
--------------------------------------
By: Robert J. Weinstein, M.D.
Its: Secretary, Treasurer and Director
-20-
<PAGE>
Eric A. Wachter, Ph.D., Craig Dees, Ph.D., Walter G. Fisher, Ph.D.,
Fisher Family Investment Limited Partnership, Timothy Scott, Ph.D. and Scott
Family Investment Limited Partnership, each hereby constitutes and appoints
John T. Smolik his or its attorney-in-fact, with the power of substitution,
and Lois Weinstein, W.F. Investments Enterprises Limited Partnership, Robert
and Lois Weinstein Family Foundation, Inc., hereby constitute and appoint
Robert J. Weinstein, M.D. its, his or her attorney-in-fact, with the power of
substitution, and for each of them in any and all capacities, to sign any and
all amendments to this Schedule 13D and to file the same, with exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, hereby ratifying and confirming all that said
attorney-in-fact, or his substitute or substitutes, may do or cause to be
done by virtue hereof.
Dated: August 5, 1998
/s/ John T. Smolik
------------------------------------
JOHN T. SMOLIK
/s/ Eric A. Wachter
------------------------------------
ERIC A. WACHTER, Ph.D.
/s/ Craig Dees
------------------------------------
CRAIG DEES, Ph.D.
/s/ Walter G. Fisher
------------------------------------
WALTER G. FISHER, Ph.D.
FISHER FAMILY INVESTMENT
LIMITED PARTNERSHIP
/s/ Walter Fisher
------------------------------------
By: Walter Fisher, Ph.D.
Its: General Partner
/s/ Timothy Scott
------------------------------------
TIMOTHY SCOTT, Ph.D.
-21-
<PAGE>
SCOTT FAMILY INVESTMENT
LIMITED PARTNERSHIP
/s/ Timothy Scott
------------------------------------
By: Timothy Scott, Ph.D.
Its: General Partner
/s/ Robert J. Weinstein
------------------------------------
ROBERT J. WEINSTEIN, M.D.
W.F. INVESTMENTS ENTERPRISES,
LIMITED PARTNERSHIP
/s/ Robert J. Weinstein
------------------------------------
By: Robert J. Weinstein, M.D.
Its: General Partner
ROBERT AND LOIS WEINSTEIN
FAMILY FOUNDATION, INC.
/s/ Robert J. Weinstein
--------------------------------------
By: Robert J. Weinstein, M.D.
Its: Secretary, Treasurer and Director
-22-
<PAGE>
EXHIBIT 1
JOINT FILING AGREEMENT
In accordance with Rule 13-d-1(f) under the Securities Exchange Act of
1934, as amended, each of the persons named below agrees to the joint filing
on behalf of each of them of a Statement on Schedule 13D (including
amendments thereto) with respect to the common stock, $.001 par value per
share, of Photogen Technologies, Inc., a Nevada corporation, and further
agrees that this Joint Filing Agreement be included as an exhibit to such
filings provided that, as contemplated by Rule 13d-1(f)(1)(ii), no person
shall be responsible for the completeness or accuracy of the information
concerning the other persons making the filing, unless such person knows or
has reason to believe that such information is inaccurate. This Joint Filing
Agreement may be executed in any number of counterparts, all of which taken
together shall constitute one and the same instrument.
Dated effective as of July 27, 1998.
/s/ John T. Smolik
------------------------------------
JOHN T. SMOLIK
/s/ Eric A. Wachter
------------------------------------
ERIC A. WACHTER, Ph.D.
/s/ Craig Dees
------------------------------------
CRAIG DEES, Ph.D.
/s/ Walter G. Fisher
------------------------------------
WALTER G. FISHER, Ph.D.
FISHER FAMILY INVESTMENT
LIMITED PARTNERSHIP
/s/ Walter Fisher
------------------------------------
By: Walter Fisher, Ph.D.
Its: General Partner
/s/ Timothy Scott
------------------------------------
TIMOTHY SCOTT, Ph.D.
<PAGE>
SCOTT FAMILY INVESTMENT
LIMITED PARTNERSHIP
/s/ Timothy Scott
------------------------------------
By: Timothy Scott, Ph.D.
Its: General Partner
/s/ Robert J. Weinstein
------------------------------------
ROBERT J. WEINSTEIN, M.D.
W.F. INVESTMENTS ENTERPRISES,
LIMITED PARTNERSHIP
/s/ Robert J. Weinstein
------------------------------------
By: Robert J. Weinstein, M.D.
Its: General Partner
ROBERT AND LOIS WEINSTEIN
FAMILY FOUNDATION
/s/ Robert J. Weinstein
-----------------------------------
By: Robert J. Weinstein, M.D.
Its: Secretary, Treasurer and Director
<PAGE>
EXHIBIT 2
AMENDED AND RESTATED VOTING AGREEMENT
This Amended and Restated Voting Agreement ("Agreement") is entered into
as of the 17th day of June, 1998, by and among Eric A. Wachter, Ph.D.
("Wachter"), Craig Dees, Ph.D. ("Dees"), Walter G. Fisher, Ph.D. ("Fisher"),
Tim Scott, Ph.D. (individually and as General Partner of Scott Family
Investment Limited Partnership, a Delaware limited partnership, "Scott"),
John Smolik ("Smolik"), and Robert J. Weinstein, M.D. (individually, and as a
General Partner of W.F. Investments Enterprises, Limited Partnership, a
Georgia Limited partnership, "Weinstein") (individually, each a "Stockholder"
and collectively the "Stockholders"), and joined into by Photogen
Technologies, Inc. for purposes of Sections 1(c) and 1(d) herein. Wachter,
Dees, Fisher, Scott and Smolik are sometimes collectively referred to herein
as the "Tennessee Stockholders;" Weinstein is sometimes referred to herein as
the "Chicago Stockholder;" and the Chicago Stockholder or Tennessee
Stockholders are each sometimes referred to herein as a "Stockholder."
RECITALS
The Stockholders collectively own as of the date of this Agreement
approximately 75% of the issued and outstanding shares of common stock, $.001
par value per share (the "Common Stock"), of Photogen Technologies, Inc., a
Nevada corporation (the "Company"). The Company owns all of the issued and
outstanding shares of Photogen, Inc., a Tennessee corporation ("Subsidiary").
The shares of Common Stock together with all other capital stock or
securities of the Company, whether authorized or outstanding as of the date
hereof or at any time hereafter, are collectively referred to as the "Shares."
The Stockholders and Theodore Tannebaum ("Tannebaum"), Stuart P. Levine
("Levine") and Thomas B. Rosenberg ("Rosenberg") were parties to that certain
Voting Agreement dated May 16, 1997 (the "Original Agreement"). The parties
desire to amend the Original Agreement to reflect an increase in the number
of directors of the Company, to release the Shares of Tannebaum, Levine and
Rosenberg from the provisions of this Agreement, and to restate the Original
Agreement as set forth herein.
AGREEMENT
Now, therefore, in consideration of the mutual promises herein and other
consideration, the receipt and adequacy of which is acknowledged, the parties
hereby agree as follows:
<PAGE>
1. VOTING AGREEMENT.
(a) The agreement in Section 1(b) shall be deemed to constitute a
voting agreement among the Stockholders pursuant to Section 78.365(3) of the
Nevada General Corporation Law. The agreement in Section 1(c) shall be
deemed to constitute an agreement among the parties hereto pursuant to
Section 48-17-302 of the Tennessee Business Corporation Act. As used in this
Agreement, the definition and determination of a "Beneficial Owner" or
"Beneficial Ownership" shall be governed by Regulation 13d-3 under the
Securities Exchange Act of 1934, as amended. All percentages of stock
ownership in this Agreement shall be calculated on a fully-diluted basis.
(b) At each annual meeting of the stockholders of the Company, or at
each special meeting of the stockholders of the Company, and at any other
time at which stockholders of the Company will have the right to or will vote
for or render consent in writing, then and in each event, each Stockholder
hereby agrees to vote or cause to be voted all Shares of which he is the
Beneficial Owner in favor of the following actions to the extent any such
actions are subject to such vote or consent:
(i) To amend, alter, modify or repeal the Articles of
Incorporation or the By-Laws of the Company only in accordance with the
unanimous recommendation of all of the Directors of the Company
(whether or not any Board action is required by law);
(ii) To fix and maintain the number of directors of the Company
at six (6);
(iii) To cause and maintain the election to the Board of
Directors of the Company of the following: (A) four (4) persons
nominated by the holders of 80% of the aggregate Shares Beneficially
Owned by the Tennessee Stockholders; and (B) one (1) person nominated
by the holder(s) of 80% of the aggregate Shares Beneficially Owned by
the Chicago Stockholder;
(iv) To remove from the Board of Directors of the Company any
director nominated by the Tennessee or Chicago Stockholder, as
applicable pursuant to paragraph 1(b)(iii) at the request of the
Stockholder(s) nominating such director; and
(v) To fix and maintain the Executive Committee of the Board
of Directors of the Company to consist of three (3) directors, two (2)
of whom shall be selected by the directors nominated by the Tennessee
Stockholders and one (1) of whom shall be selected by the director
nominated by the Chicago Stockholder.
(c) Company is agreeing for the benefit of the other parties hereto to
act in its capacity as stockholder of Subsidiary to the actions set forth in
this paragraph (c). At each annual meeting of the stockholder of the
Subsidiary, or at each special meeting of the stockholder of the Subsidiary,
and at any other time at which stockholder of the Subsidiary will have the
right to or will vote for or render consent in writing, then and in each
event, the Company (as the sole stockholder
-2-
<PAGE>
of the Subsidiary) hereby agrees to vote or cause to be voted all voting
securities of the Subsidiary of which it is the Beneficial Owner in favor of
the following actions to the extent any such actions are subject to such vote
or consent:
(i) To amend, alter, modify or repeal the Articles of
Incorporation or the By-Laws of the Subsidiary only in accordance with
the unanimous recommendation of all of the Directors of the Subsidiary
(whether or not any Board action is required by law);
(ii) To fix and maintain the number of directors of the
Subsidiary at six (6);
(iii) To cause and maintain the election to the Board of
Directors of the Subsidiary of the following: (A) four (4) persons
nominated by the directors of the Company who were selected by the
Tennessee Stockholders; and (B) one (1) person nominated by the
director of the Company who was selected by the Chicago Stockholder;
(vi) To remove from the Board of Directors of the Subsidiary any
director nominated by the Tennessee or Chicago Stockholder, as
applicable, pursuant to paragraph 1(c)(iii) at the request of the
Company directors or director, as applicable, nominating such
Subsidiary director; and
(v) To fix and maintain the Executive Committee of the Board of
Directors of the Subsidiary to consist of three (3) directors, two (2)
of whom shall be selected by the directors nominated by the Tennessee
Stockholders and one (1) of whom shall be selected by the director
nominated by the director of the Company who was selected by the
Chicago Stockholder.
(d) The Company or Subsidiary, as applicable, shall provide the
Stockholders entitled to nominate directors hereunder prior notice of any
intended mailing of notice to Stockholders for a meeting at which any of the
actions subject to paragraphs 1(b) or 1(c) are to be acted upon. Thereafter,
Stockholders (or Company directors with respect to nominations of Subsidiary
directors) entitled to nominate directors hereunder shall notify the Company
or the Subsidiary (as applicable) in writing, prior to such mailing, of the
person nominated by him or it to be a director; provided, that if such
Stockholder (or Company directors) fails to give notice to the Company or
Subsidiary (as applicable), it shall be deemed that the nominee of such party
for such meeting is the person then serving as director pursuant to such
Stockholders' (or Company directors') previous nomination.
2. NECESSARY ACTS; ADDITIONAL PARTIES. Each of the parties hereto
agrees that he or it will do (or cause to be done) any act or thing and will
execute (or cause to be executed) any and all instruments necessary and/or
proper to make effective the provisions of this Agreement. Each Stockholder
represents and warrants to, and agrees with, each other party hereto that (a)
any transferee holding Shares over which such Stockholder remains the
Beneficial Owner shall execute
-3-
<PAGE>
and deliver a counterpart of this Agreement and shall be bound by the
provisions hereof as if such transferee was an original party hereto; and (b)
such Stockholder shall provide each other party hereto true and complete
information concerning the Beneficial Ownership of Shares in the hands of
transferees.
3. LEGEND ON STOCK CERTIFICATE. Each certificate representing
Shares covered by this Agreement is subject to and shall bear the restrictive
legend set forth below:
The voting of shares of stock evidenced by this certificate is subject
to a Voting Agreement dated as of May 16, 1997, as amended from time
to time. Copies of the Agreement may be obtained from the Secretary
of the Company at no cost by written request of the holder of record
of this certificate.
4. GENERAL PROVISIONS.
(a) This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their legal representatives, heirs and legatees.
(b) The section headings in this Agreement are inserted for
convenience of reference only, and shall not affect the construction or
interpretation of this Agreement.
(c) The failure at any time to enforce any of the provisions of
this Agreement shall not be construed as a waiver of such provisions and
shall not affect the right of any party thereafter to enforce each and every
provision of this Agreement in accordance with its terms.
(d) This Agreement shall be governed by and construed in accordance
with the laws of the State of Illinois without giving effect to conflict of
laws principles thereof, except to the extent the Nevada General Corporation
Law and the Tennessee Business Corporation Law govern portions hereof.
(e) This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original and shall be enforceable
against the party executing the same, and all of which together shall
constitute a single Agreement. In making proof of this Agreement, it shall
not be necessary to produce or account for more than one such counterpart.
(f) Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be held to be invalid by a court
of competent jurisdiction, the remaining provisions shall remain in full
force and effect and the provision held invalid shall be modified to the
extent necessary to be valid and shall be enforced as modified.
(g) Any notice to be served under this Agreement shall be in
writing and shall be deemed to be delivered or given upon receipt if
delivered personally, by overnight courier or by
-4-
<PAGE>
telecopier, or two days after mailing by registered mail, return receipt
requested, addressed as follows:
IF TO THE COMPANY:
Photogen Technologies, Inc.
To its then current address
Attention: John Smolik
IF TO ANY STOCKHOLDER:
To such Stockholder's address on file in the
stock records of the Company
or to such other place as a party may specify in writing, delivered in
accordance with the provisions of this subsection.
(h) This Agreement constitutes the full and entire understanding and
agreement of the parties with regard to the subject hereof, and supersedes
any prior agreement or understanding, written or oral, with respect to such
subject matter. No party shall be liable or bound by any representations,
warranties or agreements, or any other information or materials previously
delivered, whether written or oral, regarding such subject matter.
5. AMENDMENT; TERMINATION. This Agreement may be modified or amended
in any respect upon the written approval of the holders of 90% of the Shares,
and as so modified or amended, this shall continue to bind all Stockholders
regardless of whether they consented to such modification or amendment. This
Agreement shall terminate upon the earliest to occur of the following: (i)
the written approval of the termination executed by holders of 90% or more of
the Shares; (ii) the Stockholders collectively cease to own an aggregate of
20% of the issued and outstanding voting securities of the Company; (iii) the
merger of the Company with another company in which the Company is not the
survivor or the sale of all or substantially all of the Company's assets; or
(vii) the 15th anniversary of the date of this Agreement.
-5-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
/s/ Eric A. Wachter, Ph.D.
_________________________________________
Eric A. Wachter, Ph.D.
/s/ Craig Dees, Ph.D.
_________________________________________
Craig Dees, Ph.D.
/s/ Walter G. Fisher, Ph.D.
_________________________________________
Walter G. Fisher, Ph.D.
/s/ Tim Scott, Ph.D.
_________________________________________
Tim Scott, Ph.D., individually and as General
Partner of the Scott Family Investment Limited
Partnership, a Delaware limited partnership
/s/ John Smolik
_________________________________________
John Smolik
/s/ Robert J. Weinstein, M.D.
_________________________________________
Robert J. Weinstein, M.D., individually and as a
General Partner of W.F. Investments Enterprises,
Limited Partnership
Joined into by for purposes of Sections 1(c) and 1(d) herein.
Photogen Technologies, Inc.
By: /s/ John Smolik
_____________________________________
Its: President
_____________________________________
-6-
