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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
-------------------------
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
-------------------------
DATE OF REPORT: May 17, 2000
(Date of earliest event reported)
PHOTOGEN TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
NEVADA 0-23553 36-4010347
(State or other jurisdiction (Commission File Number) (I.R.S. Employer
of incorporation or organization) Identification No.)
7327 OAK RIDGE HIGHWAY, SUITE B
KNOXVILLE, TENNESSEE 37931
(Address of principal executive offices) (Zip Code)
(865) 769-4011
(Registrant's telephone number including area code)
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ITEM 5. OTHER EVENTS.
Photogen Technologies, Inc. (the "Company") announced the
results of its annual meeting of shareholders held on May 17, 2000 and the
annual meeting of its Board of Directors immediately following the
shareholders' meeting.
At the annual meeting of shareholders, the shareholders
took the following actions:
- Approved an amendment to the Company's Articles of
Incorporation to increase the size of the Board of
Directors to seven and to permit vacancies in the
Board between regular elections to be filled in the
manner provided in the Bylaws;
- Elected Theodore Tannebaum, Eugene Golub, Lester H.
McKeever, Jr., Eric A. Wachter and Robert J.
Weinstein, M.D. as directors;
- Approved the Company's 2000 Long Term Incentive
Compensation Plan covering 2,000,000 shares of common
stock for awards of options or restricted stock; and
- Ratified the engagement of BDO Seidman, LLP as the
Company's independent certified public accountants
for 2000.
As a result of these shareholder actions, a number of
amendments to the Company's Bylaws became effective. These Bylaw amendments
permit the Board to appoint directors to fill vacancies between regular
elections and change the requirement that certain matters be approved by all
of the directors to a requirement that five of seven of the directors approve
certain matters.
At the Board meeting immediately following the
shareholders' meeting, the directors took a number of actions, including:
- Employing Taffy J. Williams, Ph.D. as the Company's
President and Chief Executive Officer;
- Electing Dr. Williams as a director;
- Approving the Company's Senior Executive Long Term
Incentive Compensation Plan (the Company expects to
obtain shareholder approval of this plan in the near
future);
- Granting Dr. Williams options to acquire 3,000,000
shares of common stock pursuant to the Senior
Executive Long Term Incentive Compensation Plan;
- Electing Aidan King as a director (Mr. King replaces
Vince Fabiano as Elan International Services, Ltd.'s
designee to the Company's Board. Mr. Fabiano withdrew
his name from consideration prior to the annual
meeting.); and
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- Approving an Indemnity Agreement to be entered into
with directors.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) The following exhibits are filed with this report:
3.1 Restated Articles of Incorporation of Photogen Technologies,
Inc.
3.2 Bylaws of Photogen Technologies, Inc. (Amended and Restated as
of May 17, 2000).
3.3 Bylaws of Photogen, Inc. (Amended and Restated as of May 17,
2000).
10.1 2000 Long Term Incentive Compensation Plan.
10.2 Senior Executive Long Term Incentive Compensation Plan.
10.3 Employment Agreement effective as of May 17, 2000 by and
between the Company and Taffy J. Williams, Ph.D.
10.4 Incentive Stock Option Award Agreement effective as of May 17,
2000 by and between the Company and Taffy J. Williams, Ph.D.
10.5 Form of Indemnification Agreement to be entered into by and
between the Company and each director of the Company.
99 Press release of the Company, dated May 18, 2000, announcing
that it has named Taffy J. Williams, Ph.D., President and CEO.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Photogen Technologies, Inc.
By: /s/ Taffy J. Williams
-----------------------------
Taffy J. Williams, President
Date: May 18, 2000
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EXHIBIT INDEX
Exhibit Description
No.
3.1 Restated Articles of Incorporation of Photogen Technologies,
Inc.
3.2 Bylaws of Photogen Technologies, Inc. (Amended and Restated as
of May 17, 2000).
3.3 Bylaws of Photogen, Inc. (Amended and Restated as of May 17,
2000).
10.1 2000 Long Term Incentive Compensation Plan.
10.2 Senior Executive Long Term Incentive Compensation Plan.
10.3 Employment Agreement effective as of May 17, 2000 by and
between the Company and Taffy J. Williams, Ph.D.
10.4 Incentive Stock Option Award Agreement effective as of May 17,
2000 by and between the Company and Taffy J. Williams, Ph.D.
10.5 Form of Indemnification Agreement to be entered into by and
between the Company and each director of the Company.
99 Press release of the Company, dated May 18, 2000, announcing
that it has named Taffy J. Williams, Ph.D., President and CEO.
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Exhibit 3.1
RESTATED ARTICLES OF INCORPORATION OF
PHOTOGEN TECHNOLOGIES, INC.
We, the undersigned, for the purpose of amending and restating
the Restated Articles of Incorporation of Photogen Technologies, Inc. filed June
17, 1998 with the Secretary of State of Nevada and subject to the requirements
of Title 7, Chapter 78 of the Nevada Revised Statutes, and the acts amendatory
thereof, and hereinafter sometimes referred to as the General Corporation Law of
the State of Nevada, hereby adopt and make the following Restated Articles of
Incorporation:
FIRST: The name of the corporation (hereinafter called the
"Corporation") is: Photogen Technologies, Inc.
SECOND: The resident agent of the Corporation within the State
of Nevada is The Corporation Trust Company of Nevada, whose address is One East
First Street, Reno, Nevada 89501.
THIRD: The nature of the business of the Corporation and the
objects or the purposes to be transacted, promoted, or carried on by it are to
engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Nevada.
FOURTH: (a) The total number of shares of all classes of stock
which the Corporation shall have the authority to issue is one hundred
fifty-five million (155,000,000), of which (i) one hundred fifty million
(150,000,000) shares shall be Common Stock, par value $.001 per share ("Common
Stock"), and (ii) five million (5,000,000) shares shall be Preferred Stock, par
value $.01 per share ("Preferred Stock"), which Preferred Stock may be issued
from time to time by the Board of Directors. The Board of Directors is
authorized to prescribe the classes, series and the number of each class or
series of Preferred Stock and the voting powers, designations, preferences,
limitations, restrictions and relative rights of each class or series of
Preferred Stock. The voting powers, designations, preferences, limitations,
restrictions, relative rights and distinguishing designation of each class or
series of Preferred Stock shall be described in one or more resolutions of the
Board of Directors authorizing the issuance of such class or series of Preferred
Stock.
(b) No holder of any of the shares of any class or
series of capital stock of the Corporation shall have a preemptive right to
acquire unissued shares, treasury shares or securities convertible into or
carrying a right to subscribe for or acquire any such shares.
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(c) Any paid-up shares of stock of the Corporation
and any shares of stock of the Corporation issued as fully paid-up shall not be
assessable or assessed in any manner or for any cause.
FIFTH: (a) The governing board of the Corporation shall be
styled as a "Board of Directors," and any member of said Board shall be styled
as a "director."
(b) The authorized number of members constituting the
Board of Directors of the Corporation is seven (7).
(c) All vacancies on the Board of Directors,
including those caused by an increase in the number of directors, shall only be
filled in the manner provided by the Bylaws.
SIXTH: The Corporation shall have perpetual existence.
SEVENTH: The personal liability of the directors to the
Corporation or its stockholders is hereby eliminated to the fullest extent
permitted by the General Corporation Law of the State of Nevada, as the same may
be amended and supplemented. No amendment to or repeal of this Article Seventh
shall apply to or have any effect on the liability or alleged liability of any
director of the Corporation for or with respect to any acts or omissions of such
director occurring prior to the effective date of such amendment or repeal.
EIGHTH: The Corporation shall, to the fullest extent
permitted by the General Corporation Law of the State of Nevada, as the same
may be amended and supplemented, indemnify each person who is or was a
director of the Corporation and each person who serves or served at the
request of the Corporation as a director of another enterprise. The
indemnification provided for herein shall not be deemed exclusive of any
other rights to which such person may be entitled under any Bylaw, agreement,
vote of stockholders or disinterested directors or otherwise. No amendment to
or repeal of this Article Eighth shall apply to or have any effect on the
rights of any person referred to in this Article Eighth for or with respect
to acts or omissions of such person occurring prior to such amendment or
repeal. The indemnification provided in this Article Eighth shall continue as
to a person who has ceased to be a director and shall inure to the benefit of
the heirs, executors and administrators of such person.
NINTH: The Corporation reserves the right to amend, alter,
change, or repeal any provision contained in these Restated Articles of
Incorporation in the manner now or hereafter prescribed by statute, and all
rights conferred upon stockholders herein are granted subject to this
reservation.
We, the undersigned President and Secretary, respectively,
of the Corporation, hereby certify that the amendment to the Restated
Articles of Incorporation of the Corporation was adopted by the holders of at
least 33,405,202 shares of stock eligible to vote thereon which represents
approximately at least 88% of the shares of the Corporation eligible to vote
thereon.
IN WITNESS WHEREOF, we hereby execute these Restated Articles
of Incorporation on this seventeenth day of May, 2000.
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/s/ Timothy Scott
----------------------------------------
Timothy Scott, Ph.D., President
/s/ Eric Wachter
----------------------------------------
Eric A. Wachter, Ph.D., Secretary
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
On this 17th day of May, 2000, personally appeared before me,
a Notary Public in and for the State and County aforesaid, Timothy Scott, Ph.D.
and Eric A. Wachter, Ph.D., known to me to be the persons described in and who
executed the foregoing Restated Articles of Incorporation, and who acknowledged
to me that they, respectively, executed the same freely and voluntarily and for
the uses and purposes therein mentioned.
WITNESS my hand and official seal, the day and year first
above written.
/s/ Linda Rozich
------------------------------
Notary Public
(Notarial Seal)
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Exhibit 3.2
BYLAWS
OF
PHOTOGEN TECHNOLOGIES, INC.
(AMENDED AND RESTATED AS OF MAY 17, 2000)
ARTICLE I
OFFICES
Section 1. PRINCIPAL EXECUTIVE OFFICE. The principal executive
office of the corporation may be located within or without the State of Nevada.
The Board of Directors (herein called the "Board") is hereby granted full power
and authority to change the principal executive office or the location of any
other corporate office from one location to another.
Section 2. OTHER OFFICES. Branch or subordinate offices may at
any time be established by the Board at any place or places.
ARTICLE II
STOCKHOLDERS
Section 1. PLACE OF MEETINGS. Meetings of stockholders shall
be held either at the principal executive office of the corporation or at any
other place within or without the State of Nevada which may be designated either
by the Board or by the written consent of all persons entitled to vote thereat,
given either before or after the meeting and filed with the Secretary.
Section 2. ANNUAL MEETINGS. The annual meetings of
stockholders shall be held on the last Tuesday of each April, at 10:00 o'clock
a.m., local time, or such other date or such other time as may be fixed by the
Board. At such meetings, directors shall be elected and any other proper
business may be transacted.
Section 3. SPECIAL MEETINGS. Special meetings of the
stockholders may be called at any time by the Board, the Chairman of the Board,
the President, or by the holders of shares entitled to cast not less than 10
percent of the votes at such meeting. Upon request in writing to the Chairman of
the Board, the President, any Vice President or the Secretary by any person
(other than the Board) entitled to call a special meeting of stockholders, the
officer forthwith shall cause notice to be given in writing to the stockholders
entitled to vote that a meeting will be held at a time requested by the person
or persons calling the meeting, not less than 10 nor more than 60 days after the
receipt of the request.
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Section 4. NOTICE OF ANNUAL OR SPECIAL MEETINGS. Written
notice of each annual or special meeting of stockholders shall be given not less
than ten nor more than sixty days before the date of the meeting to each
stockholder entitled to vote thereat. Such notice shall state the place, date,
and hour of the meeting and (a) in the case of a special meeting, the general
nature of the business to be transacted, and no other business may be
transacted, or (b) in the case of the annual meeting, those matters which the
Board, at the time of the mailing of the notice, intends to present for action
by the stockholders, but, subject to the provisions of applicable law, any
proper matter may be presented at the meeting for such action. The notice of any
meeting at which directors are to be elected shall include the names of nominees
intended at the time of the notice to be presented by management for election.
Notice of a stockholders' meeting shall be given either by
mail or by other means of written communication, addressed to the stockholder
at the address of such stockholder appearing on the books of the corporation
or given by the stockholder to the corporation for the purpose of notice, or,
if no such address appears or is given, at the place where the principal
executive office of the corporation is located or by publication at least
once in a newspaper of general circulation in the county in which the
principal executive office is located. Notice by mail shall be deemed to have
been given at the time a written notice is deposited in the United States
mails, postage prepaid. Any other written notice shall be deemed to have been
given at the time it is personally delivered to the recipient or is delivered
to a common carrier for transmission, or actually transmitted by the person
giving the notice by electronic means, to the recipient.
Section 5. QUORUM. A majority of the shares entitled to
vote, represented in person or by proxy, shall constitute a quorum at any
meeting of stockholders. If a quorum is present, the affirmative vote of the
majority of the shares represented at the meeting and voting at the meeting
(which shares voting affirmatively also constitute at least a majority of the
required quorum) shall be the act of the stockholders, unless the vote of a
greater number or voting by classes is required by law, by the Articles of
Incorporation or the Bylaws and except as provided in the following sentence.
The stockholders present at a duly called or held meeting at which a quorum
is present may continue to do business until adjournment, notwithstanding the
withdrawal of enough stockholders to leave less than a quorum, if any action
taken (other than adjournment) is approved by at least a majority of the
shares required to constitute a quorum.
Section 6. ADJOURNED MEETINGS AND NOTICE THEREOF. Any
stockholders' meeting, whether or not a quorum is present, may be adjourned
from time to time by the vote of a majority of the shares, represented either
in person or by proxy, but in the absence of a quorum (except as provided in
Section 5 of this Article) no other business may be transacted at such
meeting.
It shall not be necessary to give any notice of the time
and place of the adjourned meeting or of the business to be transacted
thereat, other than by announcement at the meeting at which such adjournment
is taken; provided, however, when any stockholders' meeting is adjourned for
more than 45 days, or if after adjournment a new record date is fixed for the
adjourned meeting, notice of the adjourned meeting shall be given as in the
case of an original
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meeting.
Section 7. VOTING. The stockholders entitled to notice of
any meeting or to vote at any such meeting shall be only persons in whose
name shares stand on the stock records of the corporation on the record date
determined in accordance with Section 8 of this Article.
Voting shall in all cases be subject to the provisions of
Title 7 of the Nevada Revised Statutes and to the following provisions:
(a) Shares held by an administrator, executor, guardian,
conservator or custodian may be voted by such holder either in person or by
proxy, without a transfer of such shares into the holder's name; and shares
standing in the name of a trustee may be voted by the trustee, either in
person or by proxy, but no trustee shall be entitled to vote shares held by
such trustee without a transfer of such shares into the trustee's name.
(b) Shares standing in the name of a receiver may be voted
by such receiver, and shares held by or under the control of a receiver may
be voted by such receiver without the transfer thereof into the receiver's
name if authority to do so is contained in an order of the court by which
such receiver was appointed.
(c) Subject to the provisions of Title 7 of the Nevada
Revised Statutes, and except where otherwise agreed in writing between the
parties, a stockholder whose shares are pledged shall be entitled to vote
such shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee shall be entitled to vote the shares so
transferred.
(d) Shares standing in the name of a minor may be voted and
the corporation may treat all rights incident thereto as exercisable by the
minor, in person or by proxy, whether or not the corporation has notice,
actual or constructive, of the minority, unless a guardian of the minor's
property has been appointed and written notice of such appointment given to
the Secretary of the corporation.
(e) Shares standing in the name of another corporation,
domestic or foreign, may be voted by such officer, agent or proxyholder as
the bylaws of such other corporation may prescribe or, in the absence of such
provision, as the Board of Directors of such other corporation may determine
or, in the absence of such determination, by the chairman of the board,
president or any vice president of such other corporation. Shares which are
purported to be voted or any proxy purported to be executed in the name of a
corporation (whether or not any title of the person signing is indicated)
shall be presumed to be voted or the proxy executed in accordance with the
provisions of this clause, unless the contrary is shown.
(f) If shares stand of record in the names of two or more
persons, whether fiduciaries, members of a partnership, joint tenants,
tenants in common, husband and wife as community property, tenants by the
entirety, voting trustees, persons entitled to vote under a stockholder
voting agreement or otherwise, or if two or more persons (including
proxyholders) have the same fiduciary relationship respecting the same
shares, unless the Secretary of the
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corporation is given written notice to the contrary and is furnished with a
copy of the instrument or order appointing them or creating the relationship
wherein it is so provided, their acts with respect to voting shall have the
following effect:
(i) If only one votes, such act binds all;
(ii) If more than one vote, the act of the majority
so voting binds all; and
(iii) If more than one vote, but the vote is evenly
split on any particular matter, each faction may vote the
securities in question proportionately.
If the instrument so filed or the registration of the shares shows that any such
tenancy is held in unequal interests, a majority or even split for the purpose
of this section shall be a majority or even split in interest.
(g) No stockholder shall be entitled to cumulate votes at any
election of directors. Elections need not be by ballot; provided, however, that
all elections for directors must be by ballot upon demand made by the Chairman
of the Board or by a majority of the outstanding shares entitled to vote
therefor at the meeting and before the voting begins.
Section 8. RECORD DATE. The Board may fix, in advance, a
record date for the determination of the stockholders entitled to notice of any
meeting or to vote, or entitled to receive payment of any dividend or other
distribution, or any allotment of rights, or to exercise rights in respect of
any other lawful action. The record date so fixed shall be not more than 60 days
prior to the date of the meeting nor more than 60 days prior to any other
action. When a record date is so fixed, only stockholders of record on that date
are entitled to notice of and to vote at the meeting or to receive the dividend,
distribution, or allotment of rights, or to exercise of the rights, as the case
may be, notwithstanding any transfer of shares on the books of the corporation
after the record date. A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any adjournment
of the meeting unless the Board fixed a new record date for the adjourned
meeting. The Board shall fix a new record date if the meeting is adjourned for
more than 45 days.
If no record date is fixed by the Board, the record date
for determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the business day next
preceding the day on which notice is given or, if notice is waived, at the
close of business on the business day next preceding the day on which the
meeting is held. The record date for determining stockholders for any purpose
other than as set forth in this Section 8 or Section 10 of this Article shall
be at the close of business on the day on which the Board adopts the
resolution relating thereto, or the sixtieth day prior to the date of such
other action, whichever is later.
Section 9. CONSENT OF ABSENTEES. The transactions of any
meeting of
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stockholders, however called and noticed, and wherever held, are as valid as
though had at a meeting duly held after regular call and notice, if a quorum
is present either in person or by proxy, and if, either before or after the
meeting, each of the persons entitled to vote, not present in person or by
proxy, signs a written waiver of notice, or a consent to the holding of the
meeting or an approval of the minutes thereof. All such waivers, consents, or
approvals shall be filed with the corporate records or made a part of the
minutes of the meeting. Attendance of a person shall constitute a waiver of
notice of and presence at such meeting, except when the person objects, at
the beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened and except that attendance at a
meeting is not a waiver of any right to object to the consideration of
matters required by Title 7 of the Nevada Revised Statutes to be included in
the notice but not so included, if such objection is expressly made at the
meeting. Neither the business to be transacted at nor the purpose of any
regular or special meeting of stockholders need be specified in any written
waiver of notice, consent to the holding of the meeting or approval of the
minutes thereof, except as provided in Title 7 of the Nevada Revised Statutes.
Section 10. ACTION WITHOUT MEETING. Any action which under
any provision of Title 7 of the Nevada Revised Statutes may be taken at any
annual or special meeting of stockholders, may be taken without a meeting and
without prior notice if a consent in writing, setting forth the action so
taken, shall be signed by the holders of outstanding shares having not less
than the minimum number of votes that would be necessary to authorize or take
such action at a meeting at which all shares entitled to vote thereon were
present and voted. Unless a record date for voting purposes be fixed as
provided in Section 8 of this Article, the record date for determining
stockholders entitled to give consent to pursuant to this Section 10, when no
prior action by the Board has been taken, shall be the day on which the first
written consent is given.
Section 11. PROXIES. Every person entitled to vote shares
has the right to do so either in person or by one or more persons authorized
by a written proxy executed by such stockholder and filed with the Secretary.
Any proxy duly executed is not revoked and continues in full force and effect
until revoked by the person executing it prior to the vote pursuant thereto
by a writing delivered to the Secretary of the corporation stating that the
proxy is revoked or by a subsequent proxy executed by the person executing
the prior proxy and presented to the meeting, or by attendance at the meeting
and voting in person by the person executing the proxy.
Section 12. INSPECTORS OF ELECTION. In advance of any
meeting of stockholders, the Board may appoint inspectors of election to act
at such meeting and any adjournment thereof. If inspectors of election be not
so appointed, or if any persons so appointed fail to appear or refuse to act,
the chairman of any such meeting may, and on the request of any stockholder
or stockholder's proxy shall, make such appointment at the meeting. The
number of inspectors shall be either one or three. If appointed at a meeting
on the request of one or more stockholders or proxies, the majority of shares
present shall determine whether one or three inspectors are to be appointed.
The duties of such inspectors shall be as prescribed by Title
7 of the Nevada
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Revised Statutes and shall include: determining the number of shares
outstanding and the voting power of each; determining the shares represented
at the meeting; determining the existence of a quorum; determining the
authenticity, validity, and effect of proxies; receiving votes, ballots, or
consents; hearing and determining all challenges and questions in any way
arising in connection with the right to vote; counting and tabulating all
votes or consents, determining when the polls shall close; determining the
result; and doing such acts as may be proper to conduct the election or vote
with fairness to all stockholders. If there are three inspectors of election,
the decision, act, or certificate of a majority is effective in all respects
as the decision, act, or certificate of all.
Section 13. CONDUCT OF MEETING. The Chairman of the Board
shall preside as Chairman at all meetings of the stockholders. The Chairman
shall conduct each such meeting in a businesslike and fair manner, but shall
not be obligated to follow any technical, formal or parliamentary rules or
principles of procedure. The Chairman's rulings on procedural matters shall
be conclusive and binding on all stockholders, unless at the time of a ruling
a request for a vote is made to the stockholders entitled to vote and
represented in person or by proxy at the meeting, in which case the decision
of a majority of such shares shall be conclusive and binding on all
stockholders. Without limiting the generality of the foregoing, the Chairman
shall have all of the powers usually vested in the chairman of a meeting of
stockholders.
Section 14. PARTICIPATION IN MEETING BY CONFERENCE
TELEPHONE. Stockholders may participate in a meeting of the stockholders by
means of conference telephone or similar method of communication by which all
persons participating in the meeting can hear one another.
ARTICLE III
DIRECTORS
Section 1. POWERS. Subject to limitations of the Articles
of Incorporation, these Bylaws, and Title 7 of the Nevada Revised Statutes
relating to action required to be approved by the stockholders or by the
outstanding shares, the business and affairs of the corporation shall be
managed and all corporate powers shall be exercised by or under the direction
of the Board. The Board may delegate the management of the day-to-day
operation of the business of the corporation to its officers, provided that
the business and affairs of the corporation shall be managed and all
corporate powers shall be exercised under the ultimate direction of the
Board. Without prejudice to such general powers, but subject to the same
limitations, it is hereby expressly declared that the Board shall have the
following powers in addition to the other powers enumerated in these Bylaws:
(a) To select and remove all the officers, agents, and
employees of the corporation, prescribe the powers and duties for them as may
not be inconsistent with law, the Articles of Incorporation or these Bylaws, fix
their compensation, and require from them security for faithful service.
(b) To conduct, manage, and control the affairs and
business of the
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corporation and to make such rules and regulations therefor not inconsistent
with law, the Articles of Incorporation or these Bylaws.
(c) To adopt, make, and use a corporate seal, and to
prescribe the forms of certification of stock, and to alter the form of such
seal and of such certificates from time to time.
(d) To authorize the issuance of shares of stock of the
corporation from time to time, upon such terms and for such consideration as
may be lawful.
(e) To borrow money and incur indebtedness for the purposes
of the corporation, and to cause to be executed and delivered therefor, in
the corporate name, promissory notes, bonds, debentures, deeds of trust,
mortgages, pledges, hypothecations, or other evidence of debt and securities
therefor.
Section 2. VACANCIES. (a) Any director may resign effective
upon giving written notice to the Chairman of the Board, the President, or
the Secretary, unless the notice specifies a later time for the effectiveness
of such resignation. If the resignation is effective at a future time, a
successor may be elected to take office when the resignation becomes
effective.
(b) Directors shall hold office until the next annual
election and until their successors shall have been elected and shall have
qualified, unless sooner displaced. Whenever any vacancy shall have occurred
in the Board of Directors, by reason of death, resignation, increase in the
authorized number of directors, or otherwise, other than removal of a
director with or without cause by a vote of the stockholders, it shall be
filled by the vote or consent of 70% or more of the remaining directors,
though less than a quorum (except as otherwise provided by law), or by the
stockholders, and the person so chosen shall hold office until the next
annual election and until his successor is duly elected and has qualified. If
one or more directors is removed by a vote of stockholders pursuant to the
laws of the State of Nevada, the term of such director or directors shall
forthwith terminate and there shall be a vacancy or vacancies in the Board of
Directors, to be filled by a vote of the stockholders as provided in these
Bylaws.
(c) A vacancy or vacancies in the Board shall be deemed to
exist in case of the death, resignation, or removal of any director, or if
the authorized number of directors is increased.
(d) The Board may declare vacant the office of a director
who has been declared of unsound mind by an order of court or convicted of a
felony.
(e) No reduction of the authorized number of directors
shall have the effect of removing any director prior to the expiration of the
director's term of office.
Section 3. PLACE OF MEETING. Regular or special meetings of
the Board shall be held at any place within or without the State of Nevada
which has been designated from time to time by the Board. In the absence of
such designation, regular meetings shall be held at the principal executive
office of the corporation.
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Section 4. REGULAR MEETINGS. Immediately following each
annual meeting of stockholders the Board shall hold a regular meeting for the
purpose of organization, election of officers, and the transaction of other
business.
Section 5. SPECIAL MEETINGS. (a) Special meetings of the
Board for any purpose or purposes may be called at any time by the Chairman
of the Board, the President, any Vice President, the Secretary, or by any two
directors.
(b) Special meetings of the Board shall be held upon two
days' written notice or 24 hours' notice given personally or by telephone,
telegraph, telex, or other similar means of communication. Any such written
notice shall be addressed or delivered to each director at such director's
address as it is shown upon the records of the corporation or as may have
been given to the corporation by the director for purposes of notice or, if
such address is not shown on such records or is not readily ascertainable, at
the place in which the meetings of the directors are regularly held.
(c) Notice by mail shall be deemed to have been given at
the time a written notice is deposited in the United States mails, postage
prepaid. Any other written notice shall be deemed to have been given at the
time it is personally delivered to the recipient or is delivered to a common
carrier for transmission, or actually transmitted by the person giving the
notice by electronic means, to the recipient. Oral notice shall be deemed to
have been given at the time it is communicated, in person or by telephone, to
the recipient.
Section 6. QUORUM. A majority of the authorized number of
directors constitutes a quorum of the Board for the transaction of business,
except (a) where the Articles of Incorporation or Bylaws require action by a
greater number of directors, in which case a quorum shall consist of such
greater number of directors, and (b) to adjourn as hereinafter provided.
Every act or decision done or made by a majority of the directors present at
a meeting duly held at which a quorum is present shall be regarded as the act
of the Board; except where a greater number is required by law, the Articles
of Incorporation or elsewhere in these Bylaws, in which case such act or
decision shall be done or made by approval or consent of such greater number
of directors.
Section 7. PARTICIPATION IN MEETINGS BY CONFERENCE
TELEPHONE. Members of the Board may participate in a meeting through use of
conference telephone or similar communications equipment, so long as all
members participating in such meeting can hear one another.
Section 8. WAIVER OF NOTICE. Notice of a meeting need not
be given to any director who signs a waiver of notice or a consent to holding
the meeting or an approval of the minutes thereof, whether before or after
the meeting, or who attends the meeting without protesting, prior thereto or
at its commencement, the lack of notice to such director. All such waivers,
consents and approvals shall be filed with the corporate records or made a
part of the minutes of the meeting.
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Section 9. ADJOURNMENT. A majority of the directors
present, whether or not a quorum is present, may adjourn any directors'
meeting to another time and place. Notice of the time and place of holding an
adjourned meeting need not be given to absent directors if the time and place
be fixed at the meeting adjourned, except as provided in the next sentence.
If the meeting is adjourned for more than 24 hours, notice of any adjournment
to another time or place shall be given prior to the time of the adjourned
meeting to the directors who were not present at the time of the adjournment.
Section 10. FEES AND COMPENSATION. Directors and members of
committees may receive such compensation, if any, for their services, and
such reimbursement for expenses, as may be fixed or determined by the Board.
Section 11. ACTION WITHOUT MEETING. Any action required or
permitted to be taken by the Board may be taken without a meeting if all
members of the Board shall individually or collectively consent in writing to
such action. Such consent or consents shall have the same effect as a
unanimous vote of the Board and shall be filed with the minutes of the
proceedings of the Board.
Section 12. RIGHTS OF INSPECTION. Every director shall have
the absolute right at any reasonable time to inspect and copy all books,
records, and documents of every kind and to inspect the physical properties
of the corporation and also of its subsidiary corporations, domestic or
foreign. Such inspection by a director may be made in person or by agent or
attorney and includes the right to copy and obtain extracts of documents.
Section 13. COMMITTEES.
(a) By vote or consent of five of the seven authorized
number of directors, the Board may designate one or more committees, each
consisting of one or more directors, and delegate to such committees any of
the authority of the Board except with respect to:
(i) The approval of any action for which Title 7 of the Nevada
Revised Statutes also requires stockholders' approval or approval of
the outstanding shares;
(ii) The filling of vacancies on the Board or in any
committee;
(iii) The fixing of compensation of the directors for serving
on the Board or on any committee;
(iv) The amendment or repeal of the Bylaws or the adoption of
new bylaws;
(v) The amendment or repeal of any resolution of the Board
which by its express terms is not so amendable or repealable;
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(vi) A distribution to the stockholders of the corporation
except at a rate or in a periodic amount or within a price range
determined by the Board; or
(vii) The appointment of other committees of the Board of the
members thereof.
Any such committee must be designated, and the members or
alternate members thereof appointed, by resolution adopted by five of the
seven authorized number of directors, and any such committee may be
designated by such name as the Board shall specify. The Board, acting through
five of the seven authorized number of directors, shall have the power to
prescribe the manner in which the proceeding of any such committee shall be
conducted. Unless the Board, acting through five of the seven authorized
number of directors, shall otherwise provide, the regular and special
meetings and other actions of any such committee shall be governed by the
provisions of this Article applicable to meetings and actions of the Board.
Minutes shall be kept of each meeting of each committee.
(b) There shall be an Executive Committee consisting of
three (3) directors who may exercise the authority of the Board to the extent
permitted by law and these Bylaws, and all actions of such Executive
Committee shall be made upon approval or consent of a majority of the members
of such Committee.
ARTICLE IV
ACTIONS REQUIRING SUPER-MAJORITY APPROVAL
OR CONSENT OF BOARD OF DIRECTORS
The following actions of the corporation shall require
approval or consent of a minimum of five of the seven authorized number of
directors:
(a) Amending, altering, modifying or repealing the
corporation's Articles of Incorporation or Bylaws.
(b) Increasing the annual compensation, bonus or benefits of
the corporation's officers, directors or key employees under written employment
contracts or amending such employment contracts.
(c) Changing the corporation's purpose or line of business
activity.
(d) Adopting or changing the corporation's annual operating
and capital budget.
(e) Granting any license or disposing of any right or interest
in any of the corporation's intellectual property or amending or making any
material filings with the U.S. Patent and Trademark Office regarding any
intellectual property now or hereafter owned by the corporation.
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(f) Merging, consolidating, reorganizing, recapitalizing,
restructuring, acquiring or selling (including a lease, mortgage or other
disposition) any assets of the corporation (other than non-intellectual
property assets in the ordinary course of business), dissolving, liquidating
or engaging in any similar transaction.
(g) Issuing or selling any of the corporation's securities,
granting any options, rights or warrants to acquire any of the corporation's
securities or instruments convertible into the corporation's securities, or
making any filings with federal or state securities regulators.
(h) Declaring or paying any dividend, distribution (by way
of redemption or otherwise), stock split, reverse stock split, repurchase of
any of the corporation's securities or similar transaction.
(i) Changing the corporation's banking, public accounting,
or principal outside legal counsel relationships, or the terms or insurer of
its directors' or officers' insurance, as currently in effect for the
corporation and its subsidiaries.
(j) Incurring any debt or effecting any borrowing, other
than accruals, accounts payable to vendors and leasing office equipment, in
the normal course of business.
(k) Entering into any transaction or commitment obligating
the corporation for more than $50,000 or to perform for a period longer than
12 months, excluding confidentiality agreements.
(l) Otherwise engaging in any material transaction outside
of the ordinary course of business or day-to-day operations of the
corporation.
All other actions of the Board shall be taken as set forth in Article III,
Section 6.
ARTICLE V
OFFICERS
Section 1. OFFICERS. The officers of the corporation shall
be a President, a Secretary, and a Treasurer. The corporation may also have,
at the discretion of the Board, a Chairman of the Board, one or more
Vice-Presidents, one or more Assistant Secretaries, one or more Assistant
Treasurers, and such other officers as may be elected or appointed in
accordance with the provisions of Section 3 of this Article.
Section 2. ELECTION. The officers of the corporation,
appointed in accordance with the provisions of Section 3 or Section 5 of this
Article, shall be chosen annually by, and shall serve at the pleasure of, the
Board, and shall hold their respective offices until their resignation,
removal, or other disqualification from service, or until their respective
successors shall be elected.
Section 3. SUBORDINATE OFFICERS. The Board may elect, and may
appoint,
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such other officers as the business of the corporation may require, each of
whom shall hold office for such period, have such authority, and perform such
duties as are provided in these Bylaws or as the Board may from time to time
determine.
Section 4. REMOVAL AND RESIGNATION. Any officer may be
removed, either with or without cause, by the Board at any time or, except in
the case of an officer chosen by the Board, by any officer upon whom such
power of removal may be conferred by the Board. Any such removal shall be
without prejudice to the rights, if any, of the officer under any contract of
employment of the officer.
Any officer may resign at any time by giving written notice
to the corporation, but without prejudice to the rights, if any, of the
corporation under any contract to which the officer is a party. Any such
resignation shall take effect at the date of the receipt of such notice or at
any later time specified therein and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
Section 5. VACANCIES. A vacancy in any office because of
death, resignation, removal, disqualification, or any other cause shall be
filled in the manner prescribed in these Bylaws for regular election or
appointment to such office.
Section 6. CHAIRMAN OF THE BOARD. The Chairman of the
Board, if there shall be such an officer, shall, if present, preside at all
meetings of the Board and stockholders and exercise and perform such other
powers and duties as may be from time to time assigned by the Board.
Section 7. PRESIDENT. Subject to such powers, if any, as
may be given by the Board to the Chairman of the Board, if there be such an
officer, the President is the chief executive officer of the corporation and
has, subject to the control of the Board, general supervision, direction, and
control of the business and affairs of the corporation. In the absence of the
Chairman of the Board, the President shall preside at all meetings of the
stockholders and at all meetings of the Board. The President has the general
powers and duties of management usually vested in the office of president of
a corporation and such other powers and duties as may be prescribed by the
Board.
Section 8. VICE PRESIDENTS. In the absence or disability of
the President, the Vice Presidents in order of their rank as fixed by the
Board or, if not ranked, the Vice President designated by the Board, shall
perform all the duties of the President, and when so acting shall have all
the powers of, and be subject to all the restrictions upon, the President.
The Vice Presidents shall have such other powers and perform such other
duties as from time to time may be prescribed for them respectively by the
Board.
Section 9. SECRETARY. The Secretary shall keep or cause to
be kept, at the principal executive office and such other place as the Board
may order, a book of minutes of all meetings of stockholders, the Board, and
its committees, with the time and place of holding, whether regular or
special and, if special, how authorized, the notice thereof given, the names
of
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those present at Board and committee meetings, the number of shares present
or represented at stockholders' meetings, and the proceedings thereof. The
Secretary shall keep, or cause to be kept, a copy of the Bylaws of the
corporation at the principal executive office or business in accordance with
Title 7 of the Nevada Revised Statutes.
The Secretary shall keep, or cause to be kept, at the
principal executive office or at the office of the corporation's transfer
agent or registrar, if one be appointed, a share register, or a duplicate
share register, showing the names of the stockholders and their addresses,
the number and classes of shares held by each, the number and date of
cancellation of every certificate surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of
all the meetings of the stockholders and of the Board and of any committees
thereof required by these Bylaws or by law to be given, shall keep the seal
of the corporation in safe custody, and shall have such other powers and
perform such other duties as may be prescribed by the Board.
Section 10. TREASURER. Unless the Board has elected or
appointed another person to be the corporation's chief financial officer, the
Treasurer shall be the chief financial officer of the corporation and shall
keep and maintain, or cause to be kept and maintained, adequate and correct
accounts of the properties and business transactions of the corporation, and
shall send or cause to be sent to the stockholders of the corporation such
financial statements and reports as are by law or these Bylaws required to be
sent to them. The books of account shall at all times be open to inspection
by any director.
The Treasurer shall deposit all moneys and other valuables
in the name and to the credit of the corporation with such depositaries as
may be designated by the Board. The Treasurer shall disburse the funds of the
corporation as may be ordered by the Board, shall render to the President and
directors, whenever they request it, an account of all transactions as
Treasurer and of the financial condition of the corporation, and shall have
such other powers and perform such other duties as may be prescribed by the
Board.
ARTICLE VI
INDEMNIFICATION
Section 1. INDEMNIFICATION IN ACTIONS BY THIRD PARTIES. The
corporation shall indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, except
an action by or in the right of the corporation, by reason of the fact that
he or she is or was a director or officer, of the corporation, or is or was
serving at the request of the corporation as a director, officer, partner,
employee or agent of another corporation, partnership, joint venture, trust
or other enterprise, against expenses, including attorneys' fees, judgments,
fines and amounts paid in settlement actually and reasonably incurred by him
or her in connection with the action, suit or proceeding if he or she acted
in good faith and in a manner which he or she reasonably believed to be in or
not opposed to the best interests
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of the corporation, and with respect to any criminal action or proceeding,
had no reasonable cause to believe his or her conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of NOLO CONTENDERE or its equivalent, does not, of
itself, create a presumption that the person did not act in good faith and in
a manner which he or she reasonably believed to be in or not opposed to the
best interests of the corporation, and that, with respect to any criminal
action or proceeding, he or she had reasonable cause to believe that his or
her conduct was unlawful.
Section 2. INDEMNIFICATION IN ACTIONS BY OR IN THE RIGHT OF
THE CORPORATION. The corporation shall indemnity any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that he or she is or was a
director or officer of the corporation, or is or was serving at the request
of the corporation as a director, officer, partner, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses, including amounts paid in settlement and attorneys' fees
actually and reasonably incurred by him or her in connection with the defense
or settlement of the action or suit if he or she acted in good faith and in
manner which he or she reasonably believed to be in or not opposed to the
best interests of the corporation. Indemnification may not be made for any
claim, issue or matter as to which such a person has been adjudged by a court
of competent jurisdiction, after exhaustion of all appeals therefrom, to be
liable to the corporation or for amounts paid in settlement to the
corporation, unless and only to the extent that the court in which the action
or suit was brought or other court of competent jurisdiction determines upon
application that, in view of all the circumstances of the case, the person is
fairly and reasonably entitled to indemnity for such expenses as the court
deems proper.
Section 3. INDEMNIFICATION AGAINST EXPENSES. To the extent
that a director, officer, employee or agent of the corporation has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in Sections 1 or 2 of this Article, or in defense of
any claim, issue or matter therein, he or she must be indemnified by the
corporation against expenses, including attorneys' fees, actually and
reasonably incurred by him or her in connection with the defense.
Section 4. REQUIRED DETERMINATIONS. Any indemnification
under Sections 1 and 2 of this Article, unless ordered by a court or advanced
pursuant to Section 5 of this Article, must be made by the corporation only
as authorized in the specific case upon a determination that indemnification
of the director or officer is proper in the circumstances. The determination
must be made:
(a) By the stockholders;
(b) By the Board of Directors by majority vote of a quorum
consisting of directors who were not parties to the act, suit or proceeding;
(c) If a majority vote of a quorum consisting of directors
who were not parties to the act, suit or proceeding so orders, by independent
legal counsel in a written opinion; or
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(d) If a quorum consisting of directors who were not
parties to the act, suit or proceeding cannot be obtained, by independent
legal counsel in a written opinion.
Section 5. ADVANCE OF EXPENSES. Expenses of officers and
directors incurred in defending a civil or criminal action, suit or
proceeding must be paid by the corporation as they are incurred and in
advance of the final disposition of the action, suit or proceeding, upon
receipt of an undertaking by or on behalf of the director or officer to repay
the amount if it is ultimately determined by a court of competent
jurisdiction that he or she is not entitled to be indemnified by the
corporation. The provisions of this Section 5 do not affect any rights to
advancement of expenses to which corporate personnel other than directors or
officers may be entitled under any contract or otherwise by law.
Section 6. NONEXCLUSIVITY; CONTINUATION. The
indemnification and advancement of expenses authorized in or ordered by a
court pursuant to this Article VI:
(a) Does not exclude any other rights to which a person
seeking indemnification or advancement of expenses may be entitled under the
Articles of Incorporation or any agreement, vote of stockholders or
disinterested directors or otherwise, for either an action in his or her
official capacity or an action in another capacity while holding his or her
office, except that indemnification, unless ordered by a court pursuant to
Section 2 of this Article or for the advancement of expenses made pursuant to
Section 5 of the Article, may not be made to or on behalf of any director or
officer if a final adjudication establishes that his or her acts or omissions
involved intentional misconduct, fraud or a knowing violation of the law and
was material to the cause of action.
(b) Continues for a person who has ceased to be a director
or officer and inures to the benefit of the heirs, executors and
administrators of such a person.
Section 7. INSURANCE.
(a) The corporation may purchase and maintain insurance or
make other financial arrangements on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer, partner, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise for any liability asserted against him or her and liability and
expenses incurred by him or her in his or her capacity as a director,
officer, employee or agent, or arising out of his or her status as such,
whether or not the corporation has the authority to indemnify him against
such liability and expenses.
(b) The other financial arrangements made by the
corporation pursuant to subsection (a) of this Section 7 may include the
following:
(i) The creation of a trust fund.
(ii) The establishment of a program of
self-insurance.
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(iii) The securing of its obligation of
indemnification by granting a security interest or other lien
on any assets of the corporation.
(iv) The establishment of a letter of credit,
guaranty or surety.
No financial arrangement made pursuant to this subsection
(b) of this Section 7 may provide protection for any person adjudged by a
court of competent jurisdiction, after exhaustion of all appeals therefrom,
to be liable for intentional misconduct, fraud or a knowing violation of law,
except with respect to the advancement of expenses or indemnification ordered
by a court.
(c) Any insurance or other financial arrangement made on
behalf of a person pursuant to this Section 7 may be provided by the
corporation or any other person approved by the Board of Directors, even if
all or part of the other person's stock or other securities is owned by the
corporation.
ARTICLE VII
MISCELLANEOUS
Section 1. INSPECTION OF BYLAWS. The corporation shall keep
in its principal executive office the original or a copy of these Bylaws as
amended to date, which shall be open to inspection by stockholders at all
reasonable times during customary office hours. If the principal executive
office of the corporation is outside the State of Nevada and the corporation
has no principal business office in such state, it shall upon the written
request of any stockholder furnish to such stockholder a copy of these Bylaws
as amended to date.
Section 2. ENDORSEMENT OF DOCUMENTS; CONTRACTS. Subject to
the provisions of applicable law, any note, mortgage, evidence of
indebtedness, contract, share certificate, conveyance, or other instrument in
writing and any assignment or endorsements thereof executed or entered into
between the corporation and any other person, when signed by the Chairman of
the Board, the President or any Vice President, and the Secretary, any
Assistant Secretary, the Treasurer or any Assistant Treasurer of the
corporation shall be valid and binding on the corporation in the absence of
actual knowledge on the part of the other person that the signing officers
had no authority to execute the same. Any such instruments may be signed by
any other person or persons and in such manner as from time to time shall be
determined by the Board and, unless so authorized by the Board, no officer,
agent, or employee shall have any power or authority to bind the corporation
by any contract or engagement or to pledge its credit or to render it liable
for any purpose or amount.
Section 3. CERTIFICATES OF STOCK. Every holder of shares of
the corporation shall be entitled to have a certificate signed in the name of
the corporation by the Chairman of the Board, the President or a Vice President
and by the Treasurer or an Assistant
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Treasurer or the Secretary or an Assistant Secretary, certifying the number
of shares and the class or series of shares owned by the stockholder. Any or
all of the signatures on the certificate may be facsimile. If any officer,
transfer agent, or registrar who has signed or whose facsimile signature has
been placed upon a certificate shall have ceased to be such officer, transfer
agent, or registrar before such certificate is issued, it may be issued by
the corporation with the same effect as if such person were an officer,
transfer agent, or registrar at the date of issue.
Except as provided in this Section, no new certificate for
shares shall be issued in lieu of an old one unless the latter is surrendered
and canceled at the same time. The Board may, however, if any certificate for
shares is alleged to have been lost, stolen, or destroyed, authorize the
issuance of a new certificate in lieu thereof, and the corporation may
require that the corporation be given a bond or other adequate security
sufficient to indemnify it against any claim that may be made against it
(including expense or liability) on account of the alleged loss, theft, or
destruction of such certificate or the issuance of such new certificate.
Section 4. REPRESENTATION OF SHARES OF OTHER CORPORATIONS.
The President or any other officer or officers authorized by the Board or the
President are each authorized to vote, represent, and exercise on behalf of
the corporation all rights incident to any and all shares of any other
corporation or corporations standing in the name of the corporation. The
authority herein granted may be exercised either by any such officer in
person or by any other person authorized so to do by proxy or power of
attorney duly executed by said officer.
Section 5. STOCK PURCHASE PLANS. The corporation may adopt
and carry out a stock purchase plan or agreement or stock option plan or
agreement providing for the issue and sale for such consideration as may be
fixed of its unissued shares, or of issued shares acquired or to be acquired,
to one or more of the employees or directors of the corporation or of a
subsidiary or to a trustee on their behalf and for the payment for such
shares in installments or at one time, and may provide for aiding any such
persons in paying for such shares by compensation for services rendered,
promissory notes, or otherwise.
Any such stock purchase plan or agreement or stock option
plan or agreement may include, among other features, the fixing of
eligibility for participation therein, the class and price of shares to be
issued or sold under the plan or agreement, the number of shares which may be
subscribed for, the method of payment therefor, reservation of title until
full payment therefor, the effect of the termination of employment, an option
or obligation on the part of the corporation to repurchase the shares upon
termination of employment, restrictions upon transfer of the shares, the time
limits of and termination of the plan, and any other matters, not in
violation of applicable law, as may be included in the plan as approved or
authorized by the Board or any committee of the Board.
Section 6. CONSTRUCTION AND DEFINITIONS. Unless the context
otherwise requires, the general provisions, rules of construction, and
definitions contained in the general provisions of Title 7 of the Nevada
Revised Statutes shall govern the construction of these Bylaws.
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Exhibit 3.3
BYLAWS
OF
PHOTOGEN, INC.
(AMENDED AND RESTATED AS OF May 17, 2000)
ARTICLE I
OFFICES
Section 1. PRINCIPAL EXECUTIVE OFFICE. The principal executive
office of the corporation may be located within or without the State of
Tennessee. The Board of Directors (herein called the "Board") is hereby granted
full power and authority to change the principal executive office or the
location of any other corporate office from one location to another.
Section 2. OTHER OFFICES. Branch or subordinate offices may at
any time be established by the Board at any place or places.
ARTICLE II
STOCKHOLDERS
Section 1. PLACE OF MEETINGS. Meetings of stockholders shall
be held either at the principal executive office of the corporation or at any
other place within or without the State of Tennessee which may be designated
either by the Board or by the written consent of all persons entitled to vote
thereat, given either before or after the meeting and filed with the Secretary.
Section 2. ANNUAL MEETINGS. The annual meetings of
stockholders shall be held on the last Tuesday of each April, at 10:00 o'clock
a.m., local time, or such other date or such other time as may be fixed by the
Board. At such meetings, directors shall be elected and any other proper
business may be transacted.
Section 3. SPECIAL MEETINGS. Special meetings of the
stockholders may be called at any time by the Board, the Chairman of the Board,
the President, or by the holders of shares entitled to cast not less than 10
percent of the votes at such meeting. Upon request in writing to the Chairman of
the Board, the President, any Vice President or the Secretary by any person
(other than the Board) entitled to call a special meeting of stockholders, the
officer forthwith shall cause notice to be given in writing to the stockholders
entitled to vote that a meeting will be held at a time requested by the person
or persons calling the meeting, not less than 10 nor more than 60 days after the
receipt of the request.
Section 4. NOTICE OF ANNUAL OR SPECIAL MEETINGS. Written
notice of each annual or special meeting of stockholders shall be given not less
than ten nor more than sixty
<PAGE>
days before the date of the meeting to each stockholder entitled to vote
thereat. Such notice shall state the place, date, and hour of the meeting and
(a) in the case of a special meeting, the general nature of the business to be
transacted, and no other business may be transacted, or (b) in the case of the
annual meeting, those matters which the Board, at the time of the mailing of the
notice, intends to present for action by the stockholders, but, subject to the
provisions of applicable law, any proper matter may be presented at the meeting
for such action. The notice of any meeting at which directors are to be elected
shall include the names of nominees intended at the time of the notice to be
presented by management for election.
Notice of a stockholders' meeting shall be given either by
mail or by other means of written communication, addressed to the stockholder at
the address of such stockholder appearing on the books of the corporation or
given by the stockholder to the corporation for the purpose of notice, or, if no
such address appears or is given, at the place where the principal executive
office of the corporation is located or by publication at least once in a
newspaper of general circulation in the county in which the principal executive
office is located. Notice by mail shall be deemed to have been given at the time
a written notice is deposited in the United States mails, postage prepaid. Any
other written notice shall be deemed to have been given at the time it is
personally delivered to the recipient or is delivered to a common carrier for
transmission, or actually transmitted by the person giving the notice by
electronic means, to the recipient.
Section 5. QUORUM. A majority of the shares entitled to vote,
represented in person or by proxy, shall constitute a quorum at any meeting of
stockholders. If a quorum is present, the affirmative vote of the majority of
the shares represented at the meeting and voting at the meeting (which shares
voting affirmatively also constitute at least a majority of the required quorum)
shall be the act of the stockholders, unless the vote of a greater number or
voting by classes is required by law, by the Charter or the Bylaws and except as
provided in the following sentence. The stockholders present at a duly called or
held meeting at which a quorum is present may continue to do business until
adjournment, notwithstanding the withdrawal of enough stockholders to leave less
than a quorum, if any action taken (other than adjournment) is approved by at
least a majority of the shares required to constitute a quorum.
Section 6. ADJOURNED MEETINGS AND NOTICE THEREOF. Any
stockholders' meeting, whether or not a quorum is present, may be adjourned from
time to time by the vote of a majority of the shares, represented either in
person or by proxy, but in the absence of a quorum (except as provided in
Section 5 of this Article) no other business may be transacted at such meeting.
It shall not be necessary to give any notice of the time and
place of the adjourned meeting or of the business to be transacted thereat,
other than by announcement at the meeting at which such adjournment is taken;
provided, however, when any stockholders' meeting is adjourned for more than 45
days, or if after adjournment a new record date is fixed for the adjourned
meeting, notice of the adjourned meeting shall be given as in the case of an
original meeting.
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Section 7. VOTING. The stockholders entitled to notice of any
meeting or to vote at any such meeting shall be only persons in whose name
shares stand on the stock records of the corporation on the record date
determined in accordance with Section 8 of this Article.
Voting shall in all cases be subject to the provisions of
Title 48, Chapters 11-27 of the Tennessee Business Corporation Act and to the
following provisions:
(a) Shares held by an administrator, executor, guardian,
conservator or custodian may be voted by such holder either in person or by
proxy, without a transfer of such shares into the holder's name; and shares
standing in the name of a trustee may be voted by the trustee, either in person
or by proxy, but no trustee shall be entitled to vote shares held by such
trustee without a transfer of such shares into the trustee's name.
(b) Shares standing in the name of a receiver may be voted by
such receiver, and shares held by or under the control of a receiver may be
voted by such receiver without the transfer thereof into the receiver's name if
authority to do so is contained in an order of the court by which such receiver
was appointed.
(c) Subject to the provisions of Title 48, Chapters 11-27 of
the Tennessee Business Corporation Act, and except where otherwise agreed in
writing between the parties, a stockholder whose shares are pledged shall be
entitled to vote such shares until the shares have been transferred into the
name of the pledgee, and thereafter the pledgee shall be entitled to vote the
shares so transferred.
(d) Shares standing in the name of a minor may be voted and
the corporation may treat all rights incident thereto as exercisable by the
minor, in person or by proxy, whether or not the corporation has notice, actual
or constructive, of the minority, unless a guardian of the minor's property has
been appointed and written notice of such appointment given to the Secretary of
the corporation.
(e) Shares standing in the name of another corporation,
domestic or foreign, may be voted by such officer, agent or proxyholder as the
bylaws of such other corporation may prescribe or, in the absence of such
provision, as the Board of Directors of such other corporation may determine or,
in the absence of such determination, by the chairman of the board, president or
any vice president of such other corporation. Shares which are purported to be
voted or any proxy purported to be executed in the name of a corporation
(whether or not any title of the person signing is indicated) shall be presumed
to be voted or the proxy executed in accordance with the provisions of this
clause, unless the contrary is shown.
(f) If shares stand of record in the names of two or more
persons, whether fiduciaries, members of a partnership, joint tenants, tenants
in common, husband and wife as community property, tenants by the entirety,
voting trustees, persons entitled to vote under a stockholder voting agreement
or otherwise, or if two or more persons (including proxyholders) have the same
fiduciary
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relationship respecting the same shares, unless the Secretary of the corporation
is given written notice to the contrary and is furnished with a copy of the
instrument or order appointing them or creating the relationship wherein it is
so provided, their acts with respect to voting shall have the following effect:
(i) If only one votes, such act binds all;
(ii) If more than one vote, the act of the majority
so voting binds all; and
(iii) If more than one vote, but the vote is evenly
split on any particular matter, each faction may vote the
securities in question proportionately.
If the instrument so filed or the registration of the shares shows that any such
tenancy is held in unequal interests, a majority or even split for the purpose
of this section shall be a majority or even split in interest.
(g) No stockholder shall be entitled to cumulate votes at any
election of directors. Elections need not be by ballot; provided, however, that
all elections for directors must be by ballot upon demand made by the Chairman
of the Board or by a majority of the outstanding shares entitled to vote
therefor at the meeting and before the voting begins.
Section 8. RECORD DATE. The Board may fix, in advance, a
record date for the determination of the stockholders entitled to notice of any
meeting or to vote, or entitled to receive payment of any dividend or other
distribution, or any allotment of rights, or to exercise rights in respect of
any other lawful action. The record date so fixed shall be not more than 60 days
prior to the date of the meeting nor more than 60 days prior to any other
action. When a record date is so fixed, only stockholders of record on that date
are entitled to notice of and to vote at the meeting or to receive the dividend,
distribution, or allotment of rights, or to exercise of the rights, as the case
may be, notwithstanding any transfer of shares on the books of the corporation
after the record date. A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any adjournment
of the meeting unless the Board fixed a new record date for the adjourned
meeting. The Board shall fix a new record date if the meeting is adjourned for
more than 45 days.
If no record date is fixed by the Board, the record date for
determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the business day next
preceding the day on which notice is given or, if notice is waived, at the close
of business on the business day next preceding the day on which the meeting is
held. The record date for determining stockholders for any purpose other than as
set forth in this Section 8 or Section 10 of this Article shall be at the close
of business on the day on which the Board the adopts the
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resolution relating thereto, or the sixtieth day prior to the date of such other
action, whichever is later.
Section 9. CONSENT OF ABSENTEES. The transactions of any
meeting of stockholders, however called and noticed, and wherever held, are as
valid as though had at a meeting duly held after regular call and notice, if a
quorum is present either in person or by proxy, and if, either before or after
the meeting, each of the persons entitled to vote, not present in person or by
proxy, signs a written waiver of notice, or a consent to the holding of the
meeting or an approval of the minutes thereof. All such waivers, consents, or
approvals shall be filed with the corporate records or made a part of the
minutes of the meeting. Attendance of a person shall constitute a waiver of
notice of and presence at such meeting, except when the person objects, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened and except that attendance at a meeting is
not a waiver of any right to object to the consideration of matters required by
Title 48, Chapters 11-27 of the Tennessee Business Corporation Act to be
included in the notice but not so included, if such objection is expressly made
at the meeting. Neither the business to be transacted at nor the purpose of any
regular or special meeting of stockholders need be specified in any written
waiver of notice, consent to the holding of the meeting or approval of the
minutes thereof, except as provided in Title 48, Chapters 11-27 of the Tennessee
Business Corporation Act.
Section 10. ACTION WITHOUT MEETING. Any action which under any
provision of Title 48, Chapters 11-27 of the Tennessee Business Corporation Act
may be taken at any annual or special meeting of stockholders, may be taken
without a meeting and without prior notice if a consent in writing, setting
forth the action so taken, shall be signed by the holders of outstanding shares
having not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares entitled to vote
thereon were present and voted. Unless a record date for voting purposes be
fixed as provided in Section 8 of this Article, the record date for determining
stockholders entitled to give consent to pursuant to this Section 10, when no
prior action by the Board has been taken, shall be the day on which the first
written consent is given.
Section 11. PROXIES. Every person entitled to vote shares has
the right to do so either in person or by one or more persons authorized by a
written proxy executed by such stockholder and filed with the Secretary. Any
proxy duly executed is not revoked and continues in full force and effect until
revoked by the person executing it prior to the vote pursuant thereto by a
writing delivered to the Secretary of the corporation stating that the proxy is
revoked or by a subsequent proxy executed by the person executing the prior
proxy and presented to the meeting, or by attendance at the meeting and voting
in person by the person executing the proxy.
Section 12. INSPECTORS OF ELECTION. In advance of any meeting
of stockholders, the Board may appoint inspectors of election to act at such
meeting and any adjournment thereof. If inspectors of election be not so
appointed, or if any persons so appointed fail to appear or refuse to act, the
chairman of any such meeting may, and on the request of any stockholder or
stockholder's proxy shall, make such appointment at the meeting. The number of
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inspectors shall be either one or three. If appointed at a meeting on the
request of one or more stockholders or proxies, the majority of shares present
shall determine whether one or three inspectors are to be appointed.
The duties of such inspectors shall be as prescribed by Title
48, Chapters 11-27 of the Tennessee Business Corporation Act and shall include:
determining the number of shares outstanding and the voting power of each;
determining the shares represented at the meeting; determining the existence of
a quorum; determining the authenticity, validity, and effect of proxies;
receiving votes, ballots, or consents; hearing and determining all challenges
and questions in any way arising in connection with the right to vote; counting
and tabulating all votes or consents, determining when the polls shall close;
determining the result; and doing such acts as may be proper to conduct the
election or vote with fairness to all stockholders. If there are three
inspectors of election, the decision, act, or certificate of a majority is
effective in all respects as the decision, act, or certificate of all.
Section 13. CONDUCT OF MEETING. The Chairman of the Board
shall preside as Chairman at all meetings of the stockholders. The Chairman
shall conduct each such meeting in a businesslike and fair manner, but shall not
be obligated to follow any technical, formal or parliamentary rules or
principles of procedure. The Chairman's rulings on procedural matters shall be
conclusive and binding on all stockholders, unless at the time of a ruling a
request for a vote is made to the stockholders entitled to vote and represented
in person or by proxy at the meeting, in which case the decision of a majority
of such shares shall be conclusive and binding on all stockholders. Without
limiting the generality of the foregoing, the Chairman shall have all of the
powers usually vested in the chairman of a meeting of stockholders.
Section 14. PARTICIPATION IN MEETING BY CONFERENCE TELEPHONE.
Stockholders may participate in a meeting of the stockholders by means of
conference telephone or similar method of communication by which all persons
participating in the meeting can hear one another.
ARTICLE III
DIRECTORS
Section 1. POWERS. Subject to limitations of the Charter,
these Bylaws, and Title 48, Chapters 11-27 of the Tennessee Business Corporation
Act relating to action required to be approved by the stockholders or by the
outstanding shares, the business and affairs of the corporation shall be managed
and all corporate powers shall be exercised by or under the direction of the
Board. The Board may delegate the management of the day-to-day operation of the
business of the corporation to its officers, provided that the business and
affairs of the corporation shall be managed and all corporate powers shall be
exercised under the ultimate direction of the Board. Without prejudice to such
general powers, but subject to the same limitations, it is hereby expressly
declared
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that the Board shall have the following powers in addition to the other powers
enumerated in these Bylaws:
(a) To select and remove all the officers, agents, and
employees of the corporation, prescribe the powers and duties for them as may
not be inconsistent with law, the Charter or these Bylaws, fix their
compensation, and require from them security for faithful service.
(b) To conduct, manage, and control the affairs and business
of the corporation and to make such rules and regulations therefor not
inconsistent with law, the Charter or these Bylaws.
(c) To adopt, make, and use a corporate seal, and to prescribe
the forms of certification of stock, and to alter the form of such seal and of
such certificates from time to time.
(d) To authorize the issuance of shares of stock of the
corporation from time to time, upon such terms and for such consideration as may
be lawful.
(e) To borrow money and incur indebtedness for the purposes of
the corporation, and to cause to be executed and delivered therefor, in the
corporate name, promissory notes, bonds, debentures, deeds of trust, mortgages,
pledges, hypothecations, or other evidence of debt and securities therefor.
Section 2. VACANCIES. (a) Any director may resign effective
upon giving written notice to the Chairman of the Board, the President, or the
Secretary, unless the notice specifies a later time for the effectiveness of
such resignation. If the resignation is effective at a future time, a successor
may be elected to take office when the resignation becomes effective.
(b) Directors shall hold office until the next annual election
and until their successors shall have been elected and shall have qualified,
unless sooner displaced. Whenever any vacancy shall have occurred in the Board
of Directors, by reason of death, resignation, increase in the authorized number
of directors, or otherwise, other than removal of a director with or without
cause by a vote of the stockholders, it shall be filled by the vote or consent
of 70% or more of the remaining directors, though less than a quorum (except as
otherwise provided by law), or by the stockholders, and the person so chosen
shall hold office until the next annual election and until his successor is duly
elected and has qualified. If one or more directors is removed by a vote of
stockholders pursuant to the laws of the State of Tennessee, the term of such
director or directors shall forthwith terminate and there shall be a vacancy or
vacancies in the Board of Directors, to be filled by a vote of the stockholders
as provided in these Bylaws.
(c) A vacancy or vacancies in the Board shall be deemed to
exist in case of the death, resignation, or removal of any director, or if the
authorized number of directors is increased.
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(d) The Board may declare vacant the office of a director who
has been declared of unsound mind by an order of court or convicted of a felony.
(e) No reduction of the authorized number of directors shall
have the effect of removing any director prior to the expiration of the
director's term of office.
Section 3. PLACE OF MEETING. Regular or special meetings of
the Board shall be held at any place within or without the State of Tennessee
which has been designated from time to time by the Board. In the absence of such
designation, regular meetings shall be held at the principal executive office of
the corporation.
Section 4. REGULAR MEETINGS. Immediately following each annual
meeting of stockholders the Board shall hold a regular meeting for the purpose
of organization, election of officers, and the transaction of other business.
Section 5. SPECIAL MEETINGS. (a) Special meetings of the Board
for any purpose or purposes may be called at any time by the Chairman of the
Board, the President, any Vice President, the Secretary, or by any two
directors.
(b) Special meetings of the Board shall be held upon two days'
written notice or 24 hours' notice given personally or by telephone, telegraph,
telex, or other similar means of communication. Any such written notice shall be
addressed or delivered to each director at such director's address as it is
shown upon the records of the corporation or as may have been given to the
corporation by the director for purposes of notice or, if such address is not
shown on such records or is not readily ascertainable, at the place in which the
meetings of the directors are regularly held.
(c) Notice by mail shall be deemed to have been given at the
time a written notice is deposited in the United States mails, postage prepaid.
Any other written notice shall be deemed to have been given at the time it is
personally delivered to the recipient or is delivered to a common carrier for
transmission, or actually transmitted by the person giving the notice by
electronic means, to the recipient. Oral notice shall be deemed to have been
given at the time it is communicated, in person or by telephone, to the
recipient.
Section 6. QUORUM. A majority of the authorized number of
directors constitutes a quorum of the Board for the transaction of business,
except (a) where the Charter or Bylaws require by a greater number of directors,
in which case a quorum shall consist of such greater number of directors, and
(b) to adjourn as hereinafter provided. Every act or decision done or made by a
majority of the directors present at a meeting duly held at which a quorum is
present shall be regarded as the act of the Board, except where a greater number
is required by law, the Charter or elsewhere in these Bylaws (in which case such
act or decision shall be done or made by approval or consent of such greater
number of directors).
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Section 7. PARTICIPATION IN MEETINGS BY CONFERENCE TELEPHONE.
Members of the Board may participate in a meeting through use of conference
telephone or similar communications equipment, so long as all members
participating in such meeting can hear one another.
Section 8. WAIVER OF NOTICE. Notice of a meeting need not be
given to any director who signs a waiver of notice or a consent to holding the
meeting or an approval of the minutes thereof, whether before or after the
meeting, or who attends the meeting without protesting, prior thereto or at its
commencement, the lack of notice to such director. All such waivers, consents
and approvals shall be filed with the corporate records or made a part of the
minutes of the meeting.
Section 9. ADJOURNMENT. A majority of the directors present,
whether or not a quorum is present, may adjourn any directors' meeting to
another time and place. Notice of the time and place of holding an adjourned
meeting need not be given to absent directors if the time and place be fixed at
the meeting adjourned, except as provided in the next sentence. If the meeting
is adjourned for more than 24 hours, notice of any adjournment to another time
or place shall be given prior to the time of the adjourned meeting to the
directors who were not present at the time of the adjournment.
Section 10. FEES AND COMPENSATION. Directors and members of
committees may receive such compensation, if any, for their services, and such
reimbursement for expenses, as may be fixed or determined by the Board.
Section 11. ACTION WITHOUT MEETING. Any action required or
permitted to be taken by the Board may be taken without a meeting if all members
of the Board shall individually or collectively consent in writing to such
action. Such consent or consents shall have the same effect as a unanimous vote
of the Board and shall be filed with the minutes of the proceedings of the
Board.
Section 12. RIGHTS OF INSPECTION. Every director shall have
the absolute right at any reasonable time to inspect and copy all books,
records, and documents of every kind and to inspect the physical properties of
the corporation and also of its subsidiary corporations, domestic or foreign.
Such inspection by a director may be made in person or by agent or attorney and
includes the right to copy and obtain extracts of documents.
Section 13. COMMITTEES.
(a) By a vote or consent of five of the seven authorized
number of directors, the Board may designate one or more committees, each
consisting of one or more directors, and delegate to such committees any of the
authority of the Board except with respect to:
(i) The approval of any action for which Title 48,
Chapters 11-27 of the Tennessee Business Corporation Act also
requires stockholders' approval or approval of the outstanding
shares;
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(ii) The filling of vacancies on the Board or in any
committee;
(iii) The fixing of compensation of the directors for
serving on the Board or on any committee;
(iv) The amendment or repeal of the Bylaws or the
adoption of new bylaws;
(v) The amendment or repeal of any resolution of the
Board which by its express terms is not so amendable or
repealable;
(vi) A distribution to the stockholders of the
corporation except at a rate or in a periodic amount or within
a price range determined by the Board; or
(vii) The appointment of other committees of the
Board of the members thereof.
Any such committee must be designated, and the members or
alternate members thereof appointed, by resolution adopted by five of the seven
authorized number of directors, and any such committee may be designated by such
name as the Board shall specify. The Board, acting through five of the seven
authorized number of directors, shall have the power to prescribe the manner in
which the proceeding of any such committee shall be conducted. Unless the Board,
acting through five of the seven authorized number of directors, shall otherwise
provide, the regular and special meetings and other actions of any such
committee shall be governed by the provisions of this Article applicable to
meetings and actions of the Board. Minutes shall be kept of each meeting of each
committee.
(b) There shall be an Executive Committee consisting of three
(3) directors who may exercise the authority of the Board to the extent
permitted by law and these Bylaws, and all actions of such Executive Committee
shall be made the approval or consent of a majority of the members of such
Committee.
Section 14. NUMBER. The authorized number of directors of the
corporation shall be seven (7).
ARTICLE IV
ACTIONS REQUIRING SUPER-MAJORITY
APPROVAL OR CONSENT OF BOARD OF DIRECTORS
The following actions of the corporation shall require
approval or consent of five of the seven authorized number of directors:
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(a) Amending, altering, modifying or repealing the
corporation's Charter or Bylaws.
(b) Increasing the annual compensation, bonus or benefits of
the corporation's officers, directors or key employees under written employment
contracts or amending such employment contracts.
(c) Changing the corporation's purpose or line of business
activity.
(d) Adopting or changing the corporation's annual operating
and capital budget.
(e) Granting any license or disposing of any right or interest
in any of the corporation's intellectual property or amending or making any
material filings with the U.S. Patent and Trademark Office regarding any
intellectual property now or hereafter owned by the corporation.
(f) Merging, consolidating, reorganizing, recapitalizing,
restructuring, acquiring or selling (including a lease, mortgage or other
disposition) any assets of the corporation (other than non-intellectual property
assets in the ordinary course of business), dissolving, liquidating or engaging
in any similar transaction.
(g) Issuing or selling any of the corporation's securities,
granting any options, rights or warrants to acquire any of the corporation's
securities or instruments convertible into the corporation's securities, or
making any filings with federal or state securities regulators.
(h) Declaring or paying any dividend, distribution (by way of
redemption or otherwise), stock split, reverse stock split, repurchase of any of
the corporation's securities or similar transaction.
(i) Changing the corporation's banking, public accounting, or
principal outside legal counsel relationships, or the terms or insurer of its
directors' or officers' insurance, as currently in effect for the corporation
and its subsidiaries.
(j) Incurring any debt or effecting any borrowing, other than
accruals, accounts payable to vendors and leasing office equipment, in the
normal course of business.
(k) Entering into any transaction or commitment obligating the
corporation for more than $50,000 or to perform for a period longer than 12
months, excluding confidentiality agreements.
(l) Otherwise engaging in any material transaction outside of
the ordinary course of business or day-to-day operations of the corporation.
All other actions of the Board shall be taken as set forth in Article III,
Section 6.
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ARTICLE V
OFFICERS
Section 1. OFFICERS. The officers of the corporation shall be
a President, a Secretary, and a Treasurer. The corporation may also have, at the
discretion of the Board, a Chairman of the Board, one or more Vice-Presidents,
one or more Assistant Secretaries, one or more Assistant Treasurers, and such
other officers as may be elected or appointed in accordance with the provisions
of Section 3 of this Article.
Section 2. ELECTION. The officers of the corporation,
appointed in accordance with the provisions of Section 3 or Section 5 of this
Article, shall be chosen annually by, and shall serve at the pleasure of, the
Board, and shall hold their respective offices until their resignation, removal,
or other disqualification from service, or until their respective successors
shall be elected.
Section 3. SUBORDINATE OFFICERS. The Board may elect, and may
appoint, such other officers as the business of the corporation may require,
each of whom shall hold office for such period, have such authority, and perform
such duties as are provided in these Bylaws or as the Board may from time to
time determine.
Section 4. REMOVAL AND RESIGNATION. Any officer may be
removed, either with or without cause, by the Board at any time or, except in
the case of an officer chosen by the Board, by any officer upon whom such power
of removal may be conferred by the Board. Any such removal shall be without
prejudice to the rights, if any, of the officer under any contract of employment
of the officer.
Any officer may resign at any time by giving written notice to
the corporation, but without prejudice to the rights, if any, of the corporation
under any contract to which the officer is a party. Any such resignation shall
take effect at the date of the receipt of such notice or at any later time
specified therein and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
Section 5. VACANCIES. A vacancy in any office because of
death, resignation, removal, disqualification, or any other cause shall be
filled in the manner prescribed in these Bylaws for regular election or
appointment to such office.
Section 6. CHAIRMAN OF THE BOARD. The Chairman of the Board,
if there shall be such an officer, shall, if present, preside at all meetings of
the Board and stockholders and exercise and perform such other powers and duties
as may be from time to time assigned by the Board.
Section 7. PRESIDENT. Subject to such powers, if any, as may
be given by the Board to the Chairman of the Board, if there be such an officer,
the President is the chief executive
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officer of the corporation and has, subject to the control of the Board, general
supervision, direction, and control of the business and affairs of the
corporation. In the absence of the Chairman of the Board, the President shall
preside at all meetings of the stockholders and at all meetings of the Board.
The President has the general powers and duties of management usually vested in
the office of president of a corporation and such other powers and duties as may
be prescribed by the Board.
Section 8. VICE PRESIDENTS. In the absence or disability of
the President, the Vice Presidents in order of their rank as fixed by the Board
or, if not ranked, the Vice President designated by the Board, shall perform all
the duties of the President, and when so acting shall have all the powers of,
and be subject to all the restrictions upon, the President. The Vice Presidents
shall have such other powers and perform such other duties as from time to time
may be prescribed for them respectively by the Board.
Section 9. SECRETARY. The Secretary shall keep or cause to be
kept, at the principal executive office and such other place as the Board may
order, a book of minutes of all meetings of stockholders, the Board, and its
committees, with the time and place of holding, whether regular or special and,
if special, how authorized, the notice thereof given, the names of those present
at Board and committee meetings, the number of shares present or represented at
stockholders' meetings, and the proceedings thereof. The Secretary shall keep,
or cause to be kept, a copy of the Bylaws of the corporation at the principal
executive office or business in accordance with Title 48, Chapters 11-27 of the
Tennessee Business Corporation Act.
The Secretary shall keep, or cause to be kept, at the
principal executive office or at the office of the corporation's transfer agent
or registrar, if one be appointed, a share register, or a duplicate share
register, showing the names of the stockholders and their addresses, the number
and classes of shares held by each, the number and date of cancellation of every
certificate surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of all
the meetings of the stockholders and of the Board and of any committees thereof
required by these Bylaws or by law to be given, shall keep the seal of the
corporation in safe custody, and shall have such other powers and perform such
other duties as may be prescribed by the Board.
Section 10. TREASURER. Unless the Board has elected or
appointed another person to be the corporation's chief financial officer, the
Treasurer shall be the chief financial officer of the corporation and shall keep
and maintain, or cause to be kept and maintained, adequate and correct accounts
of the properties and business transactions of the corporation, and shall send
or cause to be sent to the stockholders of the corporation such financial
statements and reports as are by law or these Bylaws required to be sent to
them. The books of account shall at all times be open to inspection by any
director.
The Treasurer shall deposit all moneys and other valuables in
the name and to the credit of the corporation with such depositaries as may be
designated by the Board. The Treasurer
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shall disburse the funds of the corporation as may be ordered by the Board,
shall render to the President and directors, whenever they request it, an
account of all transactions as Treasurer and of the financial condition of the
corporation, and shall have such other powers and perform such other duties as
may be prescribed by the Board.
ARTICLE VI
INDEMNIFICATION
Section 1. INDEMNIFICATION IN ACTIONS BY THIRD PARTIES. The
corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, except an
action by or in the right of the corporation, by reason of the fact that he or
she is or was a director or officer, of the corporation, or is or was serving at
the request of the corporation as a director, officer, partner, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses, including attorneys' fees, judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or her in
connection with the action, suit or proceeding if he or she acted in good faith
and in a manner which he or she reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his or her conduct was
unlawful. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of NOLO CONTENDERE or its equivalent,
does not, of itself, create a presumption that the person did not act in good
faith and in a manner which he or she reasonably believed to be in or not
opposed to the best interests of the corporation, and that, with respect to any
criminal action or proceeding, he or she had reasonable cause to believe that
his or her conduct was unlawful.
Section 2. INDEMNIFICATION IN ACTIONS BY OR IN THE RIGHT OF
THE CORPORATION. The corporation shall indemnity any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that he or she is or was a director
or officer of the corporation, or is or was serving at the request of the
corporation as a director, officer, partner, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
expenses, including amounts paid in settlement and attorneys' fees actually and
reasonably incurred by him or her in connection with the defense or settlement
of the action or suit if he or she acted in good faith and in manner which he or
she reasonably believed to be in or not opposed to the best interests of the
corporation. Indemnification may not be made for any claim, issue or matter as
to which such a person has been adjudged by a court of competent jurisdiction,
after exhaustion of all appeals therefrom, to be liable to the corporation or
for amounts paid in settlement to the corporation, unless and only to the extent
that the court in which the action or suit was brought or other court of
competent jurisdiction determines upon application that, in view of all the
circumstances of the case, the person is fairly and reasonably entitled to
indemnity for such expenses as the court deems proper.
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Section 3. INDEMNIFICATION AGAINST EXPENSES. To the extent
that a director, officer, employee or agent of the corporation has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in Sections 1 or 2 of this Article, or in defense of any
claim, issue or matter therein, he or she must be indemnified by the corporation
against expenses, including attorneys' fees, actually and reasonably incurred by
him or her in connection with the defense.
Section 4. REQUIRED DETERMINATIONS. Any indemnification under
Sections 1 and 2 of this Article, unless ordered by a court or advanced pursuant
to Section 5 of this Article, must be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the director
or officer is proper in the circumstances. The determination must be made:
(a) By the stockholders;
(b) By the Board of Directors by majority vote of a quorum
consisting of directors who were not parties to the act, suit or proceeding;
(c) If a majority vote of a quorum consisting of directors who
were not parties to the act, suit or proceeding so orders, by independent legal
counsel in a written opinion; or
(d) If a quorum consisting of directors who were not parties
to the act, suit or proceeding cannot be obtained, by independent legal counsel
in a written opinion.
Section 5. ADVANCE OF EXPENSES. Expenses of officers and
directors incurred in defending a civil or criminal action, suit or proceeding
must be paid by the corporation as they are incurred and in advance of the final
disposition of the action, suit or proceeding, upon receipt of an undertaking by
or on behalf of the director or officer to repay the amount if it is ultimately
determined by a court of competent jurisdiction that he or she is not entitled
to be indemnified by the corporation. The provisions of this Section 5 do not
affect any rights to advancement of expenses to which corporate personnel other
than directors or officers may be entitled under any contract or otherwise by
law.
Section 6. NONEXCLUSIVITY; CONTINUATION. The indemnification
and advancement of expenses authorized in or ordered by a court pursuant to this
Article VI:
(a) Does not exclude any other rights to which a person
seeking indemnification or advancement of expenses may be entitled under the
Charter or any agreement, vote of stockholders or disinterested directors or
otherwise, for either an action in his or her official capacity or an action in
another capacity while holding his or her office, except that indemnification,
unless ordered by a court pursuant to Section 2 of this Article or for the
advancement of expenses made pursuant to Section 5 of the Article, may not be
made to or on behalf of any director or officer if a final
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adjudication establishes that his or her acts or omissions involved intentional
misconduct, fraud or a knowing violation of the law and was material to the
cause of action.
(b) Continues for a person who has ceased to be a director or
officer and inures to the benefit of the heirs, executors and administrators of
such a person.
Section 7. INSURANCE.
(a) The corporation may purchase and maintain insurance or
make other financial arrangements on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, partner, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise for any liability asserted against him or her and liability and
expenses incurred by him or her in his or her capacity as a director, officer,
employee or agent, or arising out of his or her status as such, whether or not
the corporation has the authority to indemnify him against such liability and
expenses.
(b) The other financial arrangements made by the corporation
pursuant to subsection (a) of this Section 7 may include the following:
(i) The creation of a trust fund.
(ii) The establishment of a program of
self-insurance.
(iii) The securing of its obligation of
indemnification by granting a security interest or other lien
on any assets of the corporation.
(iv) The establishment of a letter of credit,
guaranty or surety.
No financial arrangement made pursuant to this subsection (b)
of this Section 7 may provide protection for any person adjudged by a court of
competent jurisdiction, after exhaustion of all appeals therefrom, to be liable
for intentional misconduct, fraud or a knowing violation of law, except with
respect to the advancement of expenses or indemnification ordered by a court.
(c) Any insurance or other financial arrangement made on
behalf of a person pursuant to this Section 7 may be provided by the corporation
or any other person approved by the Board of Directors, even if all or part of
the other person's stock or other securities is owned by the corporation.
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ARTICLE VII
MISCELLANEOUS
Section 1. INSPECTION OF BYLAWS. The corporation shall keep in
its principal executive office the original or a copy of these Bylaws as amended
to date, which shall be open to inspection by stockholders at all reasonable
times during customary office hours. If the principal executive office of the
corporation is outside the State of Tennessee and the corporation has no
principal business office in such state, it shall upon the written request of
any stockholder furnish to such stockholder a copy of these Bylaws as amended to
date.
Section 2. ENDORSEMENT OF DOCUMENTS; CONTRACTS. Subject to the
provisions of applicable law, any note, mortgage, evidence of indebtedness,
contract, share certificate, conveyance, or other instrument in writing and any
assignment or endorsements thereof executed or entered into between the
corporation and any other person, when signed by the Chairman of the Board, the
President or any Vice President, and the Secretary, any Assistant Secretary, the
Treasurer or any Assistant Treasurer of the corporation shall be valid and
binding on the corporation in the absence of actual knowledge on the part of the
other person that the signing officers had no authority to execute the same. Any
such instruments may be signed by any other person or persons and in such manner
as from time to time shall be determined by the Board and, unless so authorized
by the Board, no officer, agent, or employee shall have any power or authority
to bind the corporation by any contract or engagement or to pledge its credit or
to render it liable for any purpose or amount.
Section 3. CERTIFICATES OF STOCK. Every holder of shares of
the corporation shall be entitled to have a certificate signed in the name of
the corporation by the Chairman of the Board, the President or a Vice President
and by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant
Secretary, certifying the number of shares and the class or series of shares
owned by the stockholder. Any or all of the signatures on the certificate may be
facsimile. If any officer, transfer agent, or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to be
such officer, transfer agent, or registrar before such certificate is issued, it
may be issued by the corporation with the same effect as if such person were an
officer, transfer agent, or registrar at the date of issue.
Except as provided in this Section, no new certificate for
shares shall be issued in lieu of an old one unless the latter is surrendered
and canceled at the same time. The Board may, however, if any certificate for
shares is alleged to have been lost, stolen, or destroyed, authorize the
issuance of a new certificate in lieu thereof, and the corporation may require
that the corporation be given a bond or other adequate security sufficient to
indemnify it against any claim that may be made against it (including expense or
liability) on account of the alleged loss, theft, or destruction of such
certificate or the issuance of such new certificate.
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Section 4. REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The
President or any other officer or officers authorized by the Board or the
President are each authorized to vote, represent, and exercise on behalf of the
corporation all rights incident to any and all shares of any other corporation
or corporations standing in the name of the corporation. The authority herein
granted may be exercised either by any such officer in person or by any other
person authorized so to do by proxy or power of attorney duly executed by said
officer.
Section 5. STOCK PURCHASE PLANS. The corporation may adopt and
carry out a stock purchase plan or agreement or stock option plan or agreement
providing for the issue and sale for such consideration as may be fixed of its
unissued shares, or of issued shares acquired or to be acquired, to one or more
of the employees or directors of the corporation or of a subsidiary or to a
trustee on their behalf and for the payment for such shares in installments or
at one time, and may provide for aiding any such persons in paying for such
shares by compensation for services rendered, promissory notes, or otherwise.
Any such stock purchase plan or agreement or stock option plan
or agreement may include, among other features, the fixing of eligibility for
participation therein, the class and price of shares to be issued or sold under
the plan or agreement, the number of shares which may be subscribed for, the
method of payment therefor, reservation of title until full payment therefor,
the effect of the termination of employment, an option or obligation on the part
of the corporation to repurchase the shares upon termination of employment,
restrictions upon transfer of the shares, the time limits of and termination of
the plan, and any other matters, not in violation of applicable law, as may be
included in the plan as approved or authorized by the Board or any committee of
the Board.
Section 6. CONSTRUCTION AND DEFINITIONS. Unless the context
otherwise requires, the general provisions, rules of construction, and
definitions contained in the general provisions of Title 48, Chapters 11-27 of
the Tennessee Business Corporation Act shall govern the construction of these
Bylaws.
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Exhibit 10.1
PHOTOGEN TECHNOLOGIES, INC.
2000 LONG TERM INCENTIVE COMPENSATION PLAN
1. ESTABLISHMENT, OBJECTIVES AND DURATION.
a. ESTABLISHMENT OF THE PLAN. Photogen Technologies, Inc. hereby
establishes an incentive compensation plan to be known as the
"Photogen Technologies, Inc. 2000 Long Term Incentive
Compensation Plan" (the "Plan"), as set forth in this
document. The Plan permits the grant of Incentive Stock
Options, Nonqualified Stock Options and Restricted Stock.
b. OBJECTIVES OF THE PLAN. The objectives of the Plan are to
optimize the profitability and growth of the Company through
the use of incentives which are consistent with the Company's
objectives and which link the interests of Participants to
those of the Company's stockholders; to provide Participants
with an incentive for excellence in individual performance;
and to promote teamwork among Participants. The Plan is
further intended to provide flexibility to the Company in its
ability to motivate, attract, and retain the services of
Participants who make significant contributions to the
Company's success and to allow Participants to share in the
success of the Company.
c. DURATION OF THE PLAN. The Plan shall become effective as of
the date it is approved by the stockholders of Photogen
Technologies, Inc. (the "Effective Date"). The Plan shall
remain in effect, subject to the right of the Board of
Directors or the Committee to amend or terminate the Plan at
any time pursuant to Section 11 hereof, until all Shares
subject to it shall have been purchased or acquired according
to the Plan's provisions. However, in no event may an
Incentive Stock Option be granted under the Plan on or after
May 17, 2010.
2. DEFINITIONS.
Whenever used in the Plan, the following terms shall have the meanings set forth
below:
a. "AFFILIATE" means a "parent corporation" or "subsidiary
corporation" as defined in Section 424 of the Code.
b. "AWARD" means, individually or collectively, a grant under
this Plan of Incentive Stock Options, Nonqualified Stock
Options or Restricted Stock.
c. "AWARD AGREEMENT" means an agreement entered into by the
Company and each Participant setting forth the terms and
provisions applicable to Awards granted under this Plan.
<PAGE>
d. "BENEFICIAL OWNER" or "BENEFICIAL OWNERSHIP" shall have the
meaning ascribed to such term in Rule 13d-3 of the General
Rules and Regulations under the Exchange Act.
e. "BOARD" or "BOARD OF DIRECTORS" means the Board of Directors
of the Company.
f. "CAUSE" shall be determined by the Committee, exercising good
faith and reasonable judgment, and shall mean the occurrence
of any one or more of the following:
i. The willful and continued failure by the Participant
to substantially perform his duties (other than any
such failure resulting from the Participant's
Disability) after a written demand for substantial
performance is delivered by the Committee to the
Participant that identifies in reasonable detail the
manner in which the Committee believes that the
Participant has not substantially performed his
duties, and the Participant has failed to remedy the
situation within 30 calendar days of receiving such
notice; or
ii. The Participant's conviction for committing an act of
fraud, embezzlement, theft or another act
constituting a felony; or
iii. Any breach by a Participant of any written agreement
with the Company, including any agreement concerning
a Participant's employment, non-competition or
confidentiality of Company proprietary information;
or
iv. The willful engaging by the Participant in gross
misconduct materially and demonstrably injurious to
the Company, as determined by the Committee.
g. "CHANGE IN CONTROL" of the Company shall be deemed to have
occurred as of the first day that any one or more of the
following conditions shall have been satisfied:
i. The acquisition by any Person of Beneficial Ownership
of 50% or more of either (1) the then outstanding
shares of Common Stock of the Company, or (2) the
combined voting power of the outstanding voting
securities of the Company entitled to vote generally
in the election of Directors; provided, however, that
for purposes of this subsection, the following
transactions shall not constitute a Change of
Control: (A) any acquisition directly from the
Company through a public offering of shares of Common
Stock of the Company, (B) any acquisition by the
Company, (C) any acquisition by any employee benefit
plan (or related trust) sponsored or
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maintained by the Company or any corporation
controlled by the Company, or (D) any acquisition by
any corporation pursuant to a transaction which
complies with clauses (1), (2) and (3) of subsection
(iii) below;
ii. The cessation, for any reason, of the individuals who
constitute the Company's Board of Directors as of the
date hereof ("Incumbent Board") to constitute at
least a majority of the Company's Board of Directors;
provided, however, that any individual becoming a
Director following the date hereof whose election, or
nomination for election by the Company's
stockholders, was approved by a vote of at least a
majority of the Directors then comprising the
Incumbent Board shall be considered as though such
individual was a member of the Incumbent Board, but
excluding, for this purpose, any such individual
whose initial assumption of office occurs because of
an actual or threatened election contest with respect
to the election or removal of Directors or other
actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the
Company's Board of Directors;
iii. The consummation of a reorganization, merger or
consolidation or sale or other disposition of all or
substantially all of the assets of the Company
("Business Combination") unless, following such
Business Combination, (1) all or substantially all of
the individuals and entities who were the Beneficial
Owners, respectively, of the outstanding shares of
Common Stock of the Company and the outstanding
voting securities of the Company immediately before
such Business Combination beneficially own, directly
or indirectly, more than 50% of, respectively, the
then outstanding shares of Common Stock and the
combined voting power of the then outstanding voting
securities entitled to vote generally in the election
of Directors, as the case may be, of the Company
resulting from such Business Combination (including,
without limitation, a corporation which as a result
of such transaction owns the Company or all or
substantially all of the Company's assets either
directly or through one or more subsidiaries) in
substantially the same proportions as their ownership
immediately before such Business Combination of the
outstanding shares of Common Stock and the
outstanding voting securities of the Company, as the
case may be; (2) no party (excluding any corporation
resulting from such Business Combination or any
employee benefit plan (or related trust) of the
Company or such corporation resulting from such
Business Combination) beneficially owns, directly or
indirectly, 50%; or more of, respectively, the then
outstanding shares of common stock of the corporation
resulting from such Business Combination or the
combined voting power of the then outstanding voting
securities of such corporation
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except to the extent that such ownership existed
before the Business Combination; and (3) at least a
majority of the members of the board of directors of
the corporation resulting from such Business
Combination were members of the Company's Board of
Directors at the time of the execution of the initial
agreement, or of the action of the Company's Board of
Directors, providing for such Business Combination;
or
iv. The approval by the stockholders of the Company of a
complete liquidation or dissolution of the Company.
h. "CODE" means the Internal Revenue Code of 1986, as amended
from time to time.
i. "COMMITTEE" means the Compensation Committee of the Board, as
specified in Section 3 herein, or such other Committee
appointed by the Board to administer the Plan with respect to
grants of Awards.
j. "COMPANY" means Photogen Technologies, Inc., a Nevada
corporation, and also means any corporation of which a
majority of the voting capital stock is owned directly or
indirectly by Photogen Technologies Inc. or by any of its
Subsidiaries, and any other corporation designated by the
Committee as being a Company hereunder (but only during the
period of such ownership or designation).
k. "DIRECTOR" means any individual who is a member of the Board
of Directors of the Company.
l. "DISABILITY", as applied to a Participant, means that the
Participant (a) has established to the satisfaction of the
Committee that the Participant is unable to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be
expected to last for a continuous period of not less than 12
months (all within the meaning of Section 22(e)(3) of the
Code), and (b) has satisfied any requirement imposed by the
Committee in regard to evidence of such disability.
m. "ELIGIBLE PERSON" shall mean all Employees, Directors or
consultants of the Company or any Affiliate; provided,
however, that no Award may be granted to anyone who is not an
"employee" as that term is defined in General Instruction
A.(1)(a) of Form S-8, as such definition may be amended from
time to time, without first receiving advice and guidance from
the Company's outside counsel as to the effect of such grant.
n. "EMPLOYEE" means any officer or employee of the Company.
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<PAGE>
o. "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor act thereto.
p. "FAIR MARKET VALUE" Except as otherwise determined by the
Committee, the "Fair Market Value" of a share of Common Stock
as of any date shall be equal to the closing sale price of a
share of Common Stock as reported on The National Association
of Securities Dealers' New York Stock Exchange Composite
Reporting Tape (or if the Common Stock is not traded on The
New York Stock Exchange, the closing sale price on the
exchange on which it is traded or as reported by an applicable
automated quotation system, including the over-the-counter
bulletin board) (the "Composite Tape"), on the applicable date
or, if no sales of Common Stock are reported on such date, the
closing sale price of a share of Common Stock on the date the
Common Stock was last reported on the Composite Tape (or such
other exchange or automated quotation system, if applicable)
as of the date specified by the Committee (and if no date is
specified, then on the date of the meeting of the Committee at
which the award was granted).
q. "IMMEDIATE FAMILY MEMBERS" means the spouse, children and
grandchildren of a Participant.
r. "INCENTIVE STOCK OPTION" or "ISO" means an option to purchase
Shares granted under Section 6 herein and which is designated
as an Incentive Stock Option and which is intended to meet the
requirements of Code Section 422.
s. "INSIDER" shall mean an individual who is, on the relevant
date, a Director, a 10% Beneficial Owner of any class of the
Company's equity securities that is registered pursuant to
Section 12 of the Exchange Act or an officer of the Company,
as defined under Section 16 of the Exchange Act and as
determined by the Board of Directors from time to time.
t. "NONEMPLOYEE DIRECTOR" means an individual who is a member of
the Board of Directors of the Company but who is not an
Employee of the Company.
u. "NONQUALIFIED STOCK OPTION" or "NQSO" means an option to
purchase Shares granted under Section 6 herein and which is
not intended to meet the requirements of Code Section 422.
v. "OPTION" means an Incentive Stock Option or a Nonqualified
Stock Option, as described in Section 6 herein.
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w. "OPTION PRICE" means the price at which a Share may be
purchased by a Participant pursuant to an Option.
x. "PARTICIPANT" means an Eligible Person who has outstanding an
Award granted under the Plan.
y. "PERIOD OF RESTRICTION" means the period during which the
transfer of Shares of Restricted Stock is limited in some way
(based on the passage of time, the achievement of performance
objectives, or upon the occurrence of other events as
determined by the Committee, at its discretion), and the
Shares of Restricted Stock are subject to a substantial risk
of forfeiture, as provided in Section 7 herein.
z. "PERSON" shall have the meaning ascribed to such term in
Section 3(a)(9) of the Exchange Act and used in Sections 13(d)
and 14(d) thereof, including a "group" as defined in Section
13(d) thereof.
aa. "RESTRICTED STOCK" means an Award granted to a Participant
pursuant to Section 7 herein.
bb. "RETIREMENT" as applied to a Participant, means the
Participant's termination of employment in a manner which
qualifies the Participant to receive immediately payable
retirement benefits under any applicable retirement plan
maintained by the Company (the "Retirement Plan"), under the
successor or replacement of such Retirement Plan if it is then
no longer in effect, or under any other retirement plan
maintained or adopted by the Company which is determined by
the Committee to be the functional equivalent of such
Retirement Plan; or, with respect to a Participant who may not
or has not participated in a retirement plan or if there is no
such retirement plan maintained by the Company or an
Affiliate, "Retirement" shall have the meaning determined by
the Committee from time to time.
cc. "SHARES" means Common Stock of Photogen Technologies, Inc.,
par value $.001 per share.
dd. "SUBSIDIARY" means any corporation, partnership, joint venture
or other entity in which the Company has a majority voting
interest.
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3. ADMINISTRATION.
a. THE COMMITTEE. The Plan shall be administered by the
Committee, or by any other committee appointed by the Board,
which Committee shall consist solely of two or more
"Nonemployee Directors" within the meaning of Rule 16b-3 under
the Exchange Act, or any successor provision. The members of
the Committee shall be appointed from time to time by, and
shall serve at the discretion of, the Board of Directors.
b. AUTHORITY OF THE COMMITTEE. Except as limited by law and
subject to the provisions herein, the Committee shall have
full power in its discretion to select Eligible Persons who
shall participate in the Plan; determine the sizes and types
of Awards; determine the terms and conditions of Awards
(including vesting periods and restrictions); prescribe the
form of, construe and interpret any agreement or instrument
entered into under the Plan as they apply to Participants;
construe and interpret the terms and conditions of this Plan;
establish, amend, or waive rules and regulations for the
Plan's administration as they apply to Participants; alter,
amend, suspend or terminate the Plan in whole or in part; and
(subject to the provisions of Section 11 herein) amend the
terms and conditions of any outstanding Award to the extent
such terms and conditions are within the discretion of the
Committee as provided in the Plan. Further, the Committee
shall make all other determinations which may be necessary or
advisable for the administration of the Plan. As permitted by
law, the Committee may delegate its authority as identified
herein.
c. DECISIONS BINDING. All determinations and decisions made by
the Committee pursuant to the provisions of the Plan and all
related orders and resolutions of the Board shall be final,
conclusive and binding on all persons, including the Company,
its stockholders, Employees, Participants and their estates
and beneficiaries.
d. COSTS OF PLAN. The costs and expenses incurred in the
operation and administration of the Plan shall be borne by the
Company.
e. INDEMNIFICATION. Each person who is or shall have been a
member of the Committee shall be indemnified and held harmless
by the Company against and from any loss, cost, liability, or
expense that may be imposed upon or reasonably incurred by him
in connection with or resulting from any claim, action, suit,
or proceeding to which he may be a party or in which he may be
involved by reason of any action taken or failure to act under
the Plan and against and from any and all amounts paid by him
in settlement thereof, to the fullest extent permitted by the
Nevada General Corporation Law. The foregoing right of
indemnification shall not be exclusive of any other rights of
indemnification to which such persons
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<PAGE>
may be entitled under the Company's Sections of Incorporation
or Bylaws, as a matter of law, or otherwise, or any power that
the Company may have to indemnify them or hold them harmless.
In addition, a member of the Committee, in the performance of
any act (or in refraining from taking any action) in
connection with the Plan, shall not be liable to the Company,
its stockholders, Employees, Participants or any person when
relying in good faith upon the records of the Company or upon
such information or statements presented to the Company by any
of its officers, employees or other persons as to matters the
member reasonably believes are within such other person's
professional or expert competence and who has been selected
with reasonable care by or on behalf of the Company.
4. SHARES SUBJECT TO THE PLAN AND MAXIMUM AWARDS.
a. NUMBER OF SHARES AVAILABLE FOR GRANTS. Subject to adjustment
as provided in Section 4(b) herein, the number of Shares
hereby reserved for issuance to Participants under the Plan
shall be 2,000,000. Shares issued upon exercise of Options or
Awards of Restricted Stock under the Plan may be either
authorized but unissued Shares or Shares re-acquired by the
Company. If, on or prior to the termination of the Plan, an
Award granted thereunder expires or is terminated for any
reason without having been exercised or vested in full, the
unpurchased or unvested Shares covered thereby will again
become available for the grant of Awards under the Plan.
Shares of Common Stock covered by Options surrendered in
connection with the exercise of other Options shall not be
deemed to have been exercised and shall again become available
for the grant of awards under the Plan.
b. ADJUSTMENTS IN AUTHORIZED SHARES. In the event of any change
in corporate capitalization, such as a stock split, or a
corporate transaction, such as any merger, consolidation,
separation, including a spin-off, or other distribution of
stock or property of the Company, any reorganization (whether
or not such reorganization comes within the definition of such
term in Code Section 368) or any partial or complete
liquidation of the Company, such adjustment shall be made in
the number and class of Shares which may be delivered under
Section 4(a), in the number and class of and/or price of
Shares subject to outstanding Awards granted under the Plan,
and in the Award limits set forth in Section 4(a), as may be
determined to be appropriate and equitable by the Committee,
in its sole discretion, to prevent dilution or enlargement of
rights; provided, however, that the number of Shares subject
to any Award shall always be a whole number.
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5. ELIGIBILITY AND PARTICIPATION.
a. ELIGIBILITY. All Eligible Persons are eligible to participate
in this Plan.
b. ACTUAL PARTICIPATION. Subject to the provisions of the Plan,
the Committee may from time to time in its discretion select
Eligible Persons to whom Awards shall be granted and shall
determine the nature and amount of each Award.
c. PERFORMANCE-BASED AWARDS. The Committee may, in its
discretion, grant Awards that are wholly contingent on the
attainment of performance goals established by the Committee
from time to time. The performance goals may relate to one or
more of the following performance measures, as determined by
the Committee for each applicable performance period: (i)
return to stockholders, (ii) cash flow, (iii) return on
equity, (iv) Company created income (for example, income due
to Company initiated cost reductions or productivity
improvements), (v) sales growth, (vi) earnings and earnings
growth, (vii) return on assets, (viii) stock price, (ix)
earnings per share, (x) market share, (xi) customer
satisfaction, and (xii) attaining regulatory approvals or
other regulatory benchmarks. Any such performance goals and
the applicable performance measures will be determined by the
Committee at the time of grant and reflected in an Award
Agreement. The number or value of performance-based stock
Awards that will be paid out to any Participant at the end of
the applicable performance period, which may be one year or
longer as determined by the Committee, will depend on the
extent to which the Company attains the established
performance goals. Awards intended to be performance-based
stock Awards shall be subject to such restrictions and
conditions as may be required under Code Section 162(m) to be
performance-based compensation thereunder.
6. STOCK OPTIONS.
a. GRANT OF OPTIONS. Subject to the terms and provisions of the
Plan, Options may be granted to Participants in such number,
and upon such terms, and at any time and from time to time as
shall be determined by the Committee.
b. AWARD AGREEMENT. Each Option grant shall be evidenced by an
Award Agreement that shall specify the Option Price, the
duration of the Option, the number of Shares to which the
Option pertains, and such other provisions as the Committee
shall determine, which need not be uniform for all
Participants. The Award Agreement also shall specify whether
the Option is intended to be an ISO within the meaning of Code
Section 422, or an NQSO whose grant is intended not to fall
under the provisions of Code Section 422.
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c. PROVISIONS FOR NQSOs. Each Stock Option intended to be a
Non-Qualified Stock Option shall be subject to the terms and
conditions which the Committee determines to be appropriate,
subject to the following minimum standards for any such
Non-Qualified Stock Option:
i. The option price (per share) of the Shares covered by
each Non-Qualified Stock Option shall be determined
by the Committee but shall not be less than the par
value per share of Common Stock.
ii. Each Award Agreement shall state the date or dates on
which it first is exercisable and the date after
which it may no longer be exercised, and may provide
that the Stock Option rights accrue or become
exercisable in installments over a period of months
or years, or upon the occurrence of certain
conditions or the attainment of stated goals or
events; and
iii. Exercise of any Stock Option may be conditioned upon
the Participant's execution of a Share purchase
agreement in form satisfactory to the Committee
providing, among other things, that:
(1) The Participant's or the Participant's
estate, heirs and representatives right to
sell the Shares may be restricted; and
(2) The Participant or the Participant's estate,
heirs and representatives may be required to
execute letters of investment intent and
must also acknowledge that the Shares will
bear legends noting any applicable
restrictions.
d. PROVISIONS FOR ISOs. Each Stock Option intended to be an
Incentive Stock Option shall be issued only to an Employee and
be subject to at least the following terms and conditions,
with such additional restrictions or changes as the Committee
determines are appropriate but not in conflict with Code
Section 422 and relevant regulations and rulings of the
Internal Revenue Service:
i. The Incentive Stock Option shall meet the minimum
standards required of Non-Qualified Stock Options, as
described in Section 6(c) except clause
(i) thereunder.
ii. Immediately before the Incentive Stock Option is
granted, if the Participant owns, directly or by
reason of the applicable attribution rules in Code
Section 424(d):
(1) Ten percent (10%) or less of the total
combined voting power of all classes of
share capital of the Company or an
Affiliate, the option
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price per share of the Shares covered by
each Incentive Stock Option shall not be
less than one hundred percent (100%) of the
Fair Market Value per share of the Shares on
the date of the grant of the Incentive Stock
Option.
(2) More than ten percent (10%) of the total
combined voting power of all classes of
share capital of the Company or an
Affiliate, the option price per share of the
Shares covered by each Incentive Stock
Option shall not be less than one hundred
ten percent (110%) of the said Fair Market
Value on the date of grant.
iii. For Participants who own:
(1) Ten percent (10%) or less of the total
combined voting power of all classes of
share capital of the Company or an
Affiliate, each Incentive Stock Option shall
terminate not more than ten (10) years from
the date of the grant or at such earlier
time as the Award Agreement may provide;
(2) More than ten percent (10%) of the total
combined voting power of all classes of
share capital of the Company or an
Affiliate, each Incentive Stock Option shall
terminate not more than five (5) years from
the date of the grant or at such earlier
time as the Award Agreement may provide.
iv. The Award Agreements shall restrict the amount of
Options which may be exercisable in any calendar year
(under this or any other Incentive Stock Option plan
of the Company or an Affiliate) so that the aggregate
Fair Market Value (determined at the time each
Incentive Stock Option is granted) of the stock with
respect to which Incentive Stock Options are
exercisable for the first time by the Participant in
any calendar year does not exceed one hundred
thousand dollars ($100,000), provided that this
subparagraph shall have no force or effect if its
inclusion in the Plan is not necessary for Options
issued as Incentive Stock Options to qualify as
Incentive Stock Options pursuant to Section 422(d) of
the Code.
v. No Incentive Stock Options shall be granted after the
date which is the earlier of ten (10) years from the
date of the adoption of the Plan by the Company and
the date of the approval of this Plan by the
shareholders of the Company.
vi. Each Participant who receives an Incentive Stock
Option must agree to notify the Company in writing
immediately after the Participant makes a
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Disqualifying Disposition of any shares acquired
pursuant to the exercise of an Incentive Stock
Option. A Disqualifying Disposition is any
disposition (including any sale) of such shares
before the later of (i) two years after the date the
Participant was granted the Incentive Stock Option,
or (ii) one year after the date the Participant
acquired shares by exercising the Incentive Stock
Option. If the Participant has died before such stock
is sold, these holding period requirements do not
apply and no Disqualifying Disposition can occur
thereafter.
e. PAYMENT. Options granted under this Section 6 shall be
exercised in accordance with the applicable Award Agreement by
the delivery of a proper notice of exercise to the Company,
setting forth the number of Shares with respect to which the
Option is to be exercised. No shares of Common Stock shall be
issued on the exercise of an Option unless the Option Price is
paid for in full at the time of exercise. Payment shall be
made in cash, which may be paid by check or other instrument
acceptable to the Committee. In addition, subject to
compliance with applicable laws and regulations and such
conditions as the Committee may impose, the Option holder may
deliver with his exercise notice irrevocable instructions to a
broker to promptly deliver to the Company an amount of sale or
loan proceeds sufficient to pay the exercise price. As soon as
practicable after receipt of proper notification of exercise
and full payment, the Company shall deliver to the
Participant, in the Participant's name, Share certificates in
an appropriate amount based upon the number of Shares
purchased under the Option(s).
f. RESTRICTIONS ON SHARE TRANSFERABILITY. The Committee may
impose such restrictions on any Shares acquired pursuant to
the exercise of an Option granted under this Section 6 as it
may deem advisable, including, without limitation,
restrictions under applicable federal securities laws, under
the requirements of any stock exchange or market upon which
such Shares are then listed and/or traded, and under any state
securities laws applicable to such Shares.
g. TERMINATION OF EMPLOYMENT. Each Option, to the extent it has
not been previously exercised, shall terminate upon the
earliest to occur of: (1) the expiration of the Option period
set forth in the Award Agreement; (2) for ISOs, the expiration
of three months following the Participant's Retirement
(following the Participant's Retirement, NQSOs shall terminate
upon the expiration of the Option period set forth in the
Option Award Agreement); (3) the expiration of 12 months
following the Participant's death or Disability; (4)
immediately upon termination for Cause; (5) the expiration of
90 days following the Participant's termination of employment
for any reason other than Cause, Change in Control, death,
Disability, or Retirement; or (6) at such other time or times
and on such conditions provided for in the Award Agreement.
Upon a termination of
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employment related to a Change in Control, Options shall be
treated in the manner set forth in Section 10.
h. NONTRANSFERABILITY OF OPTIONS.
i. INCENTIVE STOCK OPTIONS. No ISO granted under the
Plan may be sold, transferred, pledged, assigned or
otherwise alienated or hypothecated, other than by
will or by the laws of descent and distribution.
Further, all ISOs granted to a Participant under the
Plan shall be exercisable during his or her lifetime
only by such Participant.
ii. NONQUALIFIED STOCK OPTIONS. The Committee may, in its
discretion, authorize all or a portion of NQSOs
granted to a Participant to be on terms which permit
transfer by such Participant to (1) Immediate Family
Members, (2) a trust or trusts for the exclusive
benefit of such Immediate Family Members, or (3) a
partnership in which such Immediate Family Members
are the only partners, provided that (A) there may be
no consideration for any such transfer, (B) the Award
Agreement pursuant to which such Options are granted
must be approved by the Committee, and must expressly
provide for transferability in a manner consistent
with this Section, and (C) subsequent transfers of
transferred Options shall be prohibited except those
by will or the laws of descent and distribution.
Following transfer, any such Options shall continue
to be subject to the same terms and conditions as
were applicable immediately prior to transfer,
provided that for purposes of this Plan, the term
"Participant" shall be deemed to refer to the
transferee. The events of termination of employment
shall continue to be applied with respect to the
original Participant, following which the Options
shall be exercisable by the transferee only to the
extent, and for the periods specified in this Section
6(h). Notwithstanding the foregoing, should the
Committee provide that Options granted be
transferable, the Company by such action incurs no
obligation to notify or otherwise provide notice to a
transferee of early termination of the Option. In the
event of a transfer, as set forth above, the original
Participant is and will remain subject to and
responsible for any applicable withholding taxes upon
the exercise of such Options.
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7. RESTRICTED STOCK.
a. GRANT OF RESTRICTED STOCK. Subject to the terms and provisions
of the Plan, the Committee, at any time and from time to time,
may grant Shares of Restricted Stock to Participants in such
amounts as the Committee shall determine. Without limiting the
generality of the foregoing, Restricted Shares may be granted
in connection with payouts under other compensation programs
of the Company.
b. RESTRICTED STOCK AGREEMENT. Each Restricted Stock grant shall
be evidenced by a Restricted Stock Award Agreement that shall
specify the Period(s) of Restriction, the number of Shares of
Restricted Stock granted, and such other provisions as the
Committee shall determine.
c. TRANSFERABILITY. Except as provided in this Section 7, the
Shares of Restricted Stock granted herein may not be sold,
transferred, pledged, assigned or otherwise alienated or
hypothecated until the end of the applicable Period of
Restriction established by the Committee and specified in the
Restricted Stock Award Agreement, or upon earlier satisfaction
of any other conditions, as specified by the Committee in its
sole discretion and set forth in the Restricted Stock Award
Agreement. All rights with respect to the Restricted Stock
granted to a Participant under the Plan shall be available
during his or her lifetime only to such Participant.
d. OTHER RESTRICTIONS. Subject to the Plan, the Committee shall
impose such other conditions and/or restrictions on any Shares
of Restricted Stock granted pursuant to the Plan as it may
deem advisable including, without limitation, a requirement
that Participants pay a stipulated purchase price for each
Share of Restricted Stock, restrictions based upon the
achievement of specific performance objectives, time-based
restrictions on vesting following the attainment of the
performance objectives, and/or restrictions under applicable
federal or state securities laws. At the discretion of the
Committee, the Company may retain the certificates
representing Shares of Restricted Stock in the Company's
possession until such time as all conditions and/or
restrictions applicable to such Shares have been satisfied.
Except as otherwise provided in this Section 7, Shares of
Restricted Stock covered by each Restricted Stock grant made
under the Plan shall become freely transferable by the
Participant after the last day of the applicable Period of
Restriction, subject to applicable securities laws.
e. VOTING RIGHTS. During the Period of Restriction, Participants
holding Shares of Restricted Stock granted hereunder may
exercise full voting rights with respect to those Shares.
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<PAGE>
f. DIVIDENDS AND OTHER DISTRIBUTIONS. During the Period of
Restriction, Participants holding Shares of Restricted Stock
granted hereunder may be credited with regular cash dividends
paid with respect to the underlying Shares while they are so
held. Such dividends may be paid currently, accrued as
contingent cash obligations, or converted into additional
shares of Restricted Stock, upon such terms as the Committee
establishes. The Committee may apply any restrictions to the
dividends that the Committee deems appropriate. In the event
that any dividend constitutes a "derivative security" or an
"equity security" pursuant to Rule 16(a) under the Exchange
Act, such dividend shall be subject to a vesting period equal
to the remaining vesting period of the Shares of Restricted
Stock with respect to which the dividend is paid.
g. TERMINATION OF EMPLOYMENT. Upon a Participant's death,
Disability, or Retirement, all Restricted Shares shall vest
immediately. Each Restricted Stock Award Agreement shall set
forth the extent to which the Participant shall have the right
to retain unvested Restricted Shares following termination of
the Participant's employment with the Company in all other
circumstances. Such provisions shall be determined in the sole
discretion of the Committee, shall be included in the Award
Agreement entered into with each Participant, need not be
uniform among all Shares of Restricted Stock issued pursuant
to the Plan, and may reflect distinctions based on the reasons
for termination of employment.
8. BENEFICIARY DESIGNATION.
A Participant under the Plan may make written designation of a
beneficiary on forms prescribed by and filed with the Secretary of the Company.
Such beneficiary, or if no such designation of any beneficiary has been made,
the legal representative of such Participant or such other person entitled
thereto as determined by a court of competent jurisdiction, may exercise, in
accordance with and subject to the provisions of Section 6, any unterminated and
unexpired Option granted to such Participant to the same extent that the
Participant himself could have exercised such Option were he alive or able;
provided, however, that no Option granted under the Plan shall be exercisable
for more Shares than the Participant could have purchased thereunder on the date
his employment by, or other relationship with, the Company and its Subsidiaries
was terminated.
9. RIGHTS OF ELIGIBLE PERSONS AND PARTICIPANTS.
Nothing in this Plan or any Award Agreement shall be deemed to: prevent
the Company or an Affiliate from terminating the employment, consultancy or
director status of a Participant; prevent a Participant from terminating his or
her own employment, consultancy or director status; give any Participant a right
to be retained in employment or other service by the Company or any Affiliate
for any period of time; confer on any person any right to be selected as a
Participant.
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<PAGE>
10. CHANGE IN CONTROL.
a. TREATMENT OF OUTSTANDING AWARDS. Upon the occurrence of a
Change in Control, unless otherwise specifically prohibited
under applicable laws, or by the rules and regulations of any
governing governmental agencies or national securities
exchanges:
i. Any and all Options granted hereunder shall become
immediately exercisable, and shall remain exercisable
throughout their entire term; and
ii. Any restriction periods and restrictions imposed on
Shares of Restricted Stock shall lapse; provided,
however, that the degree of vesting associated with
Restricted Stock which has been conditioned upon the
achievement of performance conditions pursuant to
Section 5(c) herein shall be determined in the manner
set forth in Section 7(d) herein.
b. TERMINATION, AMENDMENT, AND MODIFICATIONS OF CHANGE-IN-CONTROL
PROVISIONS. Notwithstanding any other provision of this Plan
or any Award Agreement provision, the provisions of this
Section 10 may not be terminated, amended, or modified on or
after the date of a Change in Control to affect adversely any
Award theretofore granted under the Plan without the prior
written consent of the Participant with respect to said
Participant's outstanding Awards.
11. AMENDMENT, MODIFICATION, AND TERMINATION.
a. AMENDMENT, MODIFICATION, AND TERMINATION. Subject to Section
10(b) herein, the Board or the Committee may at any time and
from time to time, alter, amend, suspend or terminate the Plan
in whole or in part, except that, without approval of the
stockholders of the Company, no such revision or amendment
shall increase the number of shares available for grants of
ISOs under the Plan or alter the class of participants in the
Plan. Notwithstanding the foregoing, neither the Company nor
the Board or Committee on its behalf may cancel outstanding
Awards and issue substitute Awards in replacement thereof or
reduce the exercise price of any outstanding Options without
stockholder approval.
b. ADJUSTMENT OF AWARDS UPON THE OCCURRENCE OF CERTAIN UNUSUAL OR
NONRECURRING EVENTS. The Committee may make adjustments in the
terms and conditions of, and the criteria included in, Awards
in recognition of unusual or nonrecurring events (including,
without limitation, the events described in Section 4(b)
hereof) affecting the Company or the financial statements of
the Company or of changes in applicable laws, regulations, or
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<PAGE>
accounting principles, whenever the Committee determines that
such adjustments are appropriate in order to prevent dilution
or enlargement of the benefits or potential benefits intended
to be made available under the Plan.
c. AWARDS PREVIOUSLY GRANTED. No termination, amendment, or
modification of the Plan shall adversely affect in any
material way any Award previously granted under the Plan,
without the written consent of the Participant holding such
Award.
12. WITHHOLDING.
a. TAX WITHHOLDING. The Company shall have the power and the
right to deduct or withhold, or require a Participant to remit
to the Company, an amount sufficient to satisfy federal,
state, and local taxes, domestic or foreign, required by law
or regulation to be withheld with respect to any taxable event
arising as a result of this Plan.
b. SHARE WITHHOLDING. To the extent provided by the Committee, a
Participant may elect to have any distribution to be made
under this Plan to be withheld or to surrender to the Company
shares of Common Stock already owned by the Participant to
fulfill any tax withholding obligation.
13. SUCCESSORS.
All obligations of the Company under the Plan with respect to Awards
granted hereunder shall be binding on any successor to the Company, whether the
existence of such successor is the result of a direct or indirect purchase of
all or substantially all of the business and/or assets of the Company, or a
merger, consolidation or otherwise.
14. LEGAL CONSTRUCTION.
a. GENDER AND NUMBER. Except where otherwise indicated by the
context, any masculine term used herein also shall include the
feminine; the plural shall include the singular; and, the
singular shall include the plural.
b. SEVERABILITY. In the event any provision of the Plan shall be
held illegal or invalid for any reason, the illegality or
invalidity shall not affect the remaining parts of the Plan,
and the illegal or invalid provision shall be modified to the
extent necessary to be legal and valid and shall be enforced
as modified.
c. REQUIREMENTS OF LAW. The granting of Awards and the issuance
of Shares under the Plan shall be subject to all applicable
laws, rules, and regulations, and to
17
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such approvals by any governmental agencies or national
securities exchanges as may be required.
d. SECURITIES LAW COMPLIANCE. With respect to Insiders,
transactions under this Plan are intended to comply with all
applicable conditions of Rule 16b-3 or its successors under
the Exchange Act. To the extent any provision of the Plan or
action by the Committee fails to so comply, it shall be deemed
null and void, to the extent permitted by law and deemed
advisable by the Committee.
e. GOVERNING LAW. To the extent not preempted by federal law, the
Plan, and all agreements hereunder, shall be construed in
accordance with and governed by the laws of the state of
Nevada.
15. RIGHTS AS A SHAREHOLDER.
No Participant to whom an Award has been granted shall have rights as a
shareholder with respect to any Shares covered by such Award, except after due
exercise of the Award and tender of the full purchase price for any Shares being
purchased pursuant to such exercise and registration of the Shares in the
Company's share register in the name of the Participant. Nothing in this Plan
shall affect a Participant's employment or other engagement by the Company,
including the Company's right to terminate such employment or engagement.
16. PURCHASE FOR INVESTMENT.
a. Unless the offering and sale of the Shares to be issued upon
the particular exercise of an Option shall have been
effectively registered under the Securities Act of 1933 (the
"1933 Act"), the Company shall be under no obligation to issue
the Shares covered by such exercise unless and until the
person(s) who exercise such Option shall represent and warrant
to the Company, prior to the receipt of such Shares, that such
person(s) are acquiring such Shares for their own respective
accounts, for investment, and not with a view to, or for sale
in connection with, the distribution of any such Shares. The
person(s) acquiring such Shares shall be bound by the
provisions of the following legend which shall be endorsed
upon the certificate(s) evidencing their Shares issued
pursuant to such exercise or such grant:
The shares evidenced by this certificate have not been
registered under the Securities Act of 1933, as amended, or
under state securities laws to the extent applicable. The
shares may not be sold, offered for sale, or otherwise
transferred in the absence of an effective registration
statement under said Act (and any registration or
qualification as may be required under such state laws) or an
opinion of counsel satisfactory to the company and its counsel
that such registration or qualification is not required.
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b. The Company may delay issuance of the Shares until completion
of any action or obtaining of any consent which the Company
deems necessary under any applicable law (including, without
limitation, state securities or "blue sky" laws).
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Exhibit 10.2
PHOTOGEN TECHNOLOGIES, INC.
SENIOR EXECUTIVE LONG TERM INCENTIVE COMPENSATION PLAN
1. ESTABLISHMENT, OBJECTIVES AND DURATION.
a. ESTABLISHMENT OF THE PLAN. Photogen Technologies, Inc. hereby
establishes an incentive compensation plan to be known as the
"Photogen Technologies, Inc. Senior Executive Long Term
Incentive Compensation Plan" (the "Plan"), as set forth in
this document. The Plan permits the grant of Incentive Stock
Options, Nonqualified Stock Options and Restricted Stock.
b. OBJECTIVES OF THE PLAN. The objectives of the Plan are to
optimize the profitability and growth of the Company through
the use of incentives which are consistent with the Company's
objectives and which link the interests of Participants to
those of the Company's stockholders; to provide Participants
with an incentive for excellence in individual performance;
and to promote teamwork among Participants. The Plan is
further intended to provide flexibility to the Company in its
ability to motivate, attract, and retain the services of
Participants who make significant contributions to the
Company's success and to allow Participants to share in the
success of the Company.
c. DURATION OF THE PLAN. The Plan shall become effective as of
the date it is approved by the stockholders of Photogen
Technologies, Inc. (the "Effective Date"). The Plan shall
remain in effect, subject to the right of the Board of
Directors or the Committee to amend or terminate the Plan at
any time pursuant to Section 11 hereof, until all Shares
subject to it shall have been purchased or acquired according
to the Plan's provisions. However, in no event may an
Incentive Stock Option be granted under the Plan on or after
May 17, 2011.
2. DEFINITIONS.
Whenever used in the Plan, the following terms shall have the meanings set forth
below:
a. "AFFILIATE" means a "parent corporation" or "subsidiary
corporation" as defined in Section 424 of the Code.
b. "AWARD" means, individually or collectively, a grant under
this Plan of Incentive Stock Options, Nonqualified Stock
Options or Restricted Stock.
<PAGE>
c. "AWARD AGREEMENT" means an agreement entered into by the
Company and each Participant setting forth the terms and
provisions applicable to Awards granted under this Plan.
d. "BENEFICIAL OWNER" or "BENEFICIAL OWNERSHIP" shall have the
meaning ascribed to such term in Rule 13d-3 of the General
Rules and Regulations under the Exchange Act.
e. "BOARD" or "BOARD OF DIRECTORS" means the Board of Directors
of the Company.
f. "CAUSE" shall be determined by the Committee, exercising good
faith and reasonable judgment, and shall mean the occurrence
of any one or more of the following:
i. The willful and continued failure by the Participant
to substantially perform his duties (other than any
such failure resulting from the Participant's
Disability) after a written demand for substantial
performance is delivered by the Committee to the
Participant that identifies in reasonable detail the
manner in which the Committee believes that the
Participant has not substantially performed his
duties, and the Participant has failed to remedy the
situation within 30 calendar days of receiving such
notice; or
ii. The Participant's conviction for committing an act of
fraud, embezzlement, theft or another act
constituting a felony; or
iii. Any breach by a Participant of any written agreement
with the Company, including any agreement concerning
a Participant's employment, non-competition or
confidentiality of Company proprietary information;
iv. The willful engaging by the Participant in gross
misconduct materially and demonstrably injurious to
the Company, as determined by the Committee; or
v. Any act or omission entitling the Company to
terminate a Participant's employment for cause as
defined in any applicable agreement between the
Participant and Company which hereby supercede the
standards in clauses (i) through (iv) above to the
extent inconsistent.
g. "CHANGE IN CONTROL" of the Company shall be deemed to have
occurred as of the first day that any one or more of the
following conditions shall have been satisfied:
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i. The acquisition by any Person of Beneficial Ownership
of 50% or more of either (A) the then outstanding
shares of Common Stock of the Company, or (B) the
combined voting power of the outstanding voting
securities of the Company entitled to vote generally
in the election of Directors; provided, however, that
for purposes of this subsection, the following
transactions shall not constitute a Change of
Control: (1) any acquisition directly from the
Company through a public offering of shares of Common
Stock of the Company, (2) any acquisition by the
Company, (3) any acquisition by any employee benefit
plan (or related trust) sponsored or maintained by
the Company or any corporation controlled by the
Company, or (4) any acquisition by any corporation
pursuant to a transaction which complies with clauses
(A), (B) and (C) of subsection (iii) below;
ii. The cessation, for any reason, of the individuals who
constitute the Company's Board of Directors as of May
18, 2000 ("Incumbent Board") to constitute at least a
majority of the Company's Board of Directors;
provided, however, that any individual becoming a
Director following said date whose election, or
nomination for election by the Company's
stockholders, was approved by a vote of at least a
majority of the Directors then comprising the
Incumbent Board shall be considered as though such
individual was a member of the Incumbent Board, but
excluding, for this purpose, any such individual
whose initial assumption of office occurs because of
an actual or threatened election contest with respect
to the election or removal of Directors or other
actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the
Company's Board of Directors;
iii. The consummation of a reorganization, merger or
consolidation or sale or other disposition of all or
substantially all of the assets of the Company
("Business Combination") unless, following such
Business Combination, (A) all or substantially all of
the individuals and entities who were the Beneficial
Owners, respectively, of the outstanding shares of
Common Stock of the Company and the outstanding
voting securities of the Company immediately before
such Business Combination beneficially own, directly
or indirectly, more than 50% of, respectively, the
then outstanding shares of Common Stock and the
combined voting power of the then outstanding voting
securities entitled to vote generally in the election
of Directors, as the case may be, of the Company
resulting from such Business Combination (including,
without limitation, a corporation which as a result
of such transaction owns the Company or all or
substantially all of the Company's assets either
directly or through one or
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more subsidiaries) in substantially the same
proportions as their ownership immediately before
such Business Combination of the outstanding shares
of Common Stock and the outstanding voting securities
of the Company, as the case may be; (B) no party
(excluding any corporation resulting from such
Business Combination or any employee benefit plan (or
related trust) of the Company or such corporation
resulting from such Business Combination)
beneficially owns, directly or indirectly, 50% or
more of, respectively, the then outstanding shares of
common stock of the corporation resulting from such
Business Combination or the combined voting power of
the then outstanding voting securities of such
corporation except to the extent that such ownership
existed before the Business Combination; and (C) at
least a majority of the members of the board of
directors of the corporation resulting from such
Business Combination were members of the Company's
Board of Directors at the time of the execution of
the initial agreement, or of the action of the
Company's Board of Directors, providing for such
Business Combination; or
iv. The approval by the stockholders of the Company of a
complete liquidation or dissolution of the Company.
h. "CODE" means the Internal Revenue Code of 1986, as amended
from time to time.
i. "COMMITTEE" means the Compensation Committee of the Board, as
specified in Section 3 herein, or such other Committee
appointed by the Board to administer the Plan with respect to
grants of Awards.
j. "COMPANY" means Photogen Technologies, Inc., a Nevada
corporation, and also means any corporation of which a
majority of the voting capital stock is owned directly or
indirectly by Photogen Technologies Inc. or by any of its
Subsidiaries, and any other corporation designated by the
Committee as being a Company hereunder (but only during the
period of such ownership or designation).
k. "DIRECTOR" means any individual who is a member of the Board
of Directors of the Company.
l. "DISABILITY", unless a different standard is set forth in any
written agreement with a Participant, as applied to a
Participant "Disability" means that the Participant (a) has
established to the satisfaction of the Committee that the
Participant is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which can be expected to last for a
continuous period of no less than 12 months (all within the
meaning of
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Section 22(e)(3) of the Code), and (b) has satisfied any
requirement imposed by the Committee in regard to evidence of
such disability.
m. "ELIGIBLE PERSON" shall mean any executive officer who is an
Employee of the Company or any Affiliate.
n. "EMPLOYEE" means any executive officer employed by the
Company or an Affiliate.
o. "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor act thereto.
p. "FAIR MARKET VALUE" Except as otherwise determined by the
Committee, the "Fair Market Value" of a share of Common Stock
as of any date shall be equal to the closing sale price of a
share of Common Stock as reported on The National Association
of Securities Dealers' New York Stock Exchange Composite
Reporting Tape (or if the Common Stock is not traded on The
New York Stock Exchange, the closing sale price on the
exchange on which it is traded or as reported by an applicable
automated quotation system, including the Nasdaq SmallCap
Market or over-the-counter bulletin board) (the "Composite
Tape"), on the applicable date or, if no sales of Common Stock
are reported on such date, the closing sale price of a share
of Common Stock on the date the Common Stock was last reported
on the Composite Tape (or any other exchange or automated
quotation system, if applicable) as of the date specified by
the Committee (and if no date is specified, then on the date
of the meeting of the Committee at which the award was
granted).
q. "IMMEDIATE FAMILY MEMBERS" means the spouse, children and
grandchildren of a Participant.
r. "INCENTIVE STOCK OPTION" or "ISO" means an option to purchase
Shares granted under Section 6 herein and which is designated
as an Incentive Stock Option and which is intended to meet the
requirements of Code Section 422.
s. "INSIDER" shall mean an individual who is, on the relevant
date, a Director, a 10% Beneficial Owner of any class of the
Company's equity securities that is registered pursuant to
Section 12 of the Exchange Act or an officer of the Company,
as defined under Section 16 of the Exchange Act and as
determined by the Board of Directors from time to time.
t. "NONEMPLOYEE DIRECTOR" means an individual who is a member of
the Board of Directors of the Company but who is not an
Employee of the Company.
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u. "NONQUALIFIED STOCK OPTION" or "NQSO" means an option to
purchase Shares granted under Section 6 herein and which is
not intended to meet the requirements of Code Section 422.
v. "OPTION" means an Incentive Stock Option or a Nonqualified
Stock Option, as described in Section 6 herein.
w. "OPTION PRICE" means the price at which a Share may be
purchased by a Participant pursuant to an Option.
x. "PARTICIPANT" means an Eligible Person who has outstanding an
Award granted under the Plan.
y. "PERIOD OF RESTRICTION" means the period during which the
transfer of Shares of Restricted Stock is limited in some way
(based on the passage of time, the achievement of performance
objectives, or upon the occurrence of other events as
determined by the Committee, at its discretion), and the
Shares of Restricted Stock are subject to a substantial risk
of forfeiture, as provided in Section 7 herein.
z. "PERSON" shall have the meaning ascribed to such term in
Section 3(a)(9) of the Exchange Act and used in Sections 13(d)
and 14(d) thereof, including a "group" as defined in Section
13(d) thereof.
aa. "RESTRICTED STOCK" means an Award granted to a Participant
pursuant to Section 7 herein.
bb. "RETIREMENT"unless a different standard is set forth in any
written agreement with a Participant, as applied to a
Participant "Retirement" means the Participant's termination
of employment in a manner which qualifies the Participant to
receive immediately payable retirement benefits under any
applicable retirement plan maintained by the Company (the
"Retirement Plan"), under the successor or replacement of such
Retirement Plan if it is then no longer in effect, or under
any other retirement plan maintained or adopted by the Company
which is determined by the Committee to be the functional
equivalent of such Retirement Plan; or, with respect to a
Participant who may not or has not participated in a
retirement plan or if there is no such retirement plan
maintained by the Company or an Affiliate, "Retirement" shall
have the meaning determined by the Committee from time to
time.
cc. "SHARES" means Common Stock of Photogen Technologies, Inc.,
par value $.001 per share.
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dd. "SUBSIDIARY" means any corporation, partnership, joint venture
or other entity in which the Company has a majority voting
interest.
3. ADMINISTRATION.
a. THE COMMITTEE. The Plan shall be administered by the
Committee, or by any other committee appointed by the Board,
which Committee shall consist solely of two or more
"Nonemployee Directors" within the meaning of Rule 16b-3 under
the Exchange Act, or any successor provision. The members of
the Committee shall be appointed from time to time by, and
shall serve at the discretion of, the Board of Directors.
b. AUTHORITY OF THE COMMITTEE. Except as limited by law and
subject to the provisions herein, the Committee shall have
full power in its discretion to select Eligible Persons who
shall participate in the Plan; determine the sizes and types
of Awards; determine the terms and conditions of Awards
(including vesting periods and restrictions); prescribe the
form of, construe and interpret any agreement or instrument
entered into under the Plan as they apply to Participants;
construe and interpret the terms and conditions of this Plan;
establish, amend, or waive rules and regulations for the
Plan's administration as they apply to Participants; alter,
amend, suspend or terminate the Plan in whole or in part; and
(subject to the provisions of Section 11 herein) amend the
terms and conditions of any outstanding Award to the extent
such terms and conditions are within the discretion of the
Committee as provided in the Plan. Further, the Committee
shall make all other determinations which may be necessary or
advisable for the administration of the Plan. As permitted by
law, the Committee may delegate its authority as identified
herein.
c. DECISIONS BINDING. All determinations and decisions made by
the Committee pursuant to the provisions of the Plan and all
related orders and resolutions of the Board shall be final,
conclusive and binding on all persons, including the Company,
its stockholders, Employees, Participants and their estates
and beneficiaries.
d. COSTS OF PLAN. The costs and expenses incurred in the
operation and administration of the Plan shall be borne by the
Company.
e. INDEMNIFICATION. Each person who is or shall have been a
member of the Committee shall be indemnified and held harmless
by the Company against and from any loss, cost, liability, or
expense that may be imposed upon or reasonably incurred by him
in connection with or resulting from any claim, action, suit,
or proceeding to which he may be a party or in which he may be
involved by reason of any action taken or failure to act under
the Plan and against and from any and
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<PAGE>
all amounts paid by him in settlement thereof, to the fullest
extent permitted by the Nevada General Corporation Law. The
foregoing right of indemnification shall not be exclusive of
any other rights of indemnification to which such persons may
be entitled under the Company's Sections of Incorporation or
Bylaws, as a matter of law, or otherwise, or any power that
the Company may have to indemnify them or hold them harmless.
In addition, a member of the Committee, in the performance of
any act (or in refraining from taking any action) in
connection with the Plan, shall not be liable to the Company,
its stockholders, Employees, Participants or any person when
relying in good faith upon the records of the Company or upon
such information or statements presented to the Company by any
of its officers, employees or other persons as to matters the
member reasonably believes are within such other person's
professional or expert competence and who has been selected
with reasonable care by or on behalf of the Company.
4. SHARES SUBJECT TO THE PLAN AND MAXIMUM AWARDS.
a. NUMBER OF SHARES AVAILABLE FOR GRANTS. Subject to adjustment
as provided in Section 4(b) herein, the number of Shares
hereby reserved for issuance to Participants under the Plan
shall be 3,000,000. Shares issued upon exercise of Options or
Awards of Restricted Stock under the Plan may be either
authorized but unissued Shares or Shares re-acquired by the
Company. If, on or prior to the termination of the Plan, an
Award granted thereunder expires or is terminated for any
reason without having been exercised or vested in full, the
unpurchased or unvested Shares covered thereby will again
become available for the grant of Awards under the Plan.
Shares of Common Stock covered by Options surrendered in
connection with the exercise of other Options shall not be
deemed to have been exercised and shall again become available
for the grant of awards under the Plan.
b. ADJUSTMENTS IN AUTHORIZED SHARES. In the event of any change
in corporate capitalization, such as a stock split, or a
corporate transaction, such as any merger, consolidation,
separation, including a spin-off, or other distribution of
stock or property of the Company, any reorganization (whether
or not such reorganization comes within the definition of such
term in Code Section 368) or any partial or complete
liquidation of the Company, such adjustment shall be made in
the number and class of Shares which may be delivered under
Section 4(a), in the number and class of and/or price of
Shares subject to outstanding Awards granted under the Plan,
and in the Award limits set forth in Section 4(a), as may be
determined to be appropriate and equitable by the Committee,
in its sole discretion, to prevent dilution or enlargement of
rights; provided, however, that the number of Shares subject
to any Award shall always be a whole number.
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<PAGE>
5. ELIGIBILITY AND PARTICIPATION.
a. ELIGIBILITY. All Eligible Persons are eligible to participate
in this Plan.
b. ACTUAL PARTICIPATION. Subject to the provisions of the Plan,
the Committee may from time to time in its discretion select
Eligible Persons to whom Awards shall be granted and shall
determine the nature and amount of each Award.
c. PERFORMANCE-BASED AWARDS. The Committee may, in its
discretion, grant Awards that are wholly contingent on the
attainment of performance goals established by the Committee
from time to time. The performance goals may relate to one or
more of the following performance measures, as determined by
the Committee for each applicable performance period: (i)
return to stockholders, (ii) cash flow, (iii) return on
equity, (iv) Company created income (for example, income due
to Company initiated cost reductions or productivity
improvements), (v) sales growth, (vi) earnings and earnings
growth, (vii) return on assets, (viii) stock price, (ix)
earnings per share, (x) market share, (xi) customer
satisfaction, and (xii) attaining regulatory approvals or
other regulatory benchmarks. Any such performance goals and
the applicable performance measures will be determined by the
Committee at the time of grant and reflected in an Award
Agreement. The number or value of performance-based stock
Awards that will be paid out to any Participant at the end of
the applicable performance period, which may be one year or
longer as determined by the Committee, will depend on the
extent to which the Company attains the established
performance goals. Awards intended to be performance-based
stock Awards shall be subject to such restrictions and
conditions as may be required under Section 162(m) to be
performance-based compensation thereunder.
6. STOCK OPTIONS.
a. GRANT OF OPTIONS. Subject to the terms and provisions of the
Plan, Options may be granted to Participants in such number,
and upon such terms, and at any time and from time to time as
shall be determined by the Committee.
b. AWARD AGREEMENT. Each Option grant shall be evidenced by an
Award Agreement that shall specify the Option Price, the
duration of the Option, the number of Shares to which the
Option pertains, and such other provisions as the Committee
shall determine, which need not be uniform for all
Participants. The Award Agreement also shall specify whether
the Option is intended to be an ISO within the meaning of Code
Section 422, or an NQSO whose grant is intended not to fall
under the provisions of Code Section 422.
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<PAGE>
c. PROVISIONS FOR NQSOs. Each Stock Option intended to be a
Non-Qualified Stock Option shall be subject to the terms and
conditions which the Committee determines to be appropriate,
subject to the following minimum standards for any such
Non-Qualified Stock Option:
i. The option price (per share) of the Shares covered by
each Non-Qualified Stock Option shall be determined
by the Committee but shall not be less than the par
value per share of Common Stock.
ii. Each Award Agreement shall state the date or dates on
which it first is exercisable and the date after
which it may no longer be exercised, and may provide
that the Stock Option rights accrue or become
exercisable in installments over a period of months
or years, or upon the occurrence of certain
conditions or the attainment of stated goals or
events; and
iii. Exercise of any Stock Option may be conditioned upon
the Participant's execution of a Share purchase
agreement in form satisfactory to the Committee
providing, among other things, that:
(1) The Participant's or the Participant's
estate, heirs and representatives right to
sell the Shares may be restricted; and
(2) The Participant or the Participant's estate,
heirs and representatives may be required to
execute letters of investment intent and
must also acknowledge that the Shares will
bear legends noting any applicable
restrictions.
d. PROVISIONS FOR ISOs. Each Stock Option intended to be an
Incentive Stock Option shall be issued only to an Employee and
be subject to at least the following terms and conditions,
with such additional restrictions or changes as the Committee
determines are appropriate but not in conflict with Code
Section 422 and relevant regulations and rulings of the
Internal Revenue Service:
i. The Incentive Stock Option shall meet the minimum
standards required of Non-Qualified Stock Options, as
described in Section 6(c) except clause (i)
thereunder.
ii. Immediately before the Incentive Stock Option is
granted, if the Participant owns, directly or by
reason of the applicable attribution rules in Code
Section 424(d):
(1) Ten percent (10%) or less of the total
combined voting power of all classes of
share capital of the Company or an
Affiliate, the option
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<PAGE>
price per share of the Shares covered by
each Incentive Stock Option shall not be
less than one hundred percent (100%) of the
Fair Market Value per share of the Shares on
the date of the grant of the Incentive Stock
Option.
(2) More than ten percent (10%) of the total
combined voting power of all classes of
share capital of the Company or an
Affiliate, the option price per share of the
Shares covered by each Incentive Stock
Option shall not be less than one hundred
ten percent (110%) of the said Fair Market
Value on the date of grant.
iii. For Participants who own:
(1) Ten percent (10%) or less of the total
combined voting power of all classes of
share capital of the Company or an
Affiliate, each Incentive Stock Option shall
terminate not more than ten (10) years from
the date of the grant or at such earlier
time as the Award Agreement may provide;
(2) More than ten percent (10%) of the total
combined voting power of all classes of
share capital of the Company or an
Affiliate, each Incentive Stock Option shall
terminate not more than five (5) years from
the date of the grant or at such earlier
time as the Award Agreement may provide.
iv. The Award Agreements shall restrict the amount of
Options which may be exercisable in any calendar year
(under this or any other Incentive Stock Option plan
of the Company or an Affiliate) so that the aggregate
Fair Market Value (determined at the time each
Incentive Stock Option is granted) of the stock with
respect to which Incentive Stock Options are
exercisable for the first time by the Participant in
any calendar year does not exceed one hundred
thousand dollars ($100,000), provided that this
subparagraph shall have no force or effect if its
inclusion in the Plan is not necessary for Options
issued as Incentive Stock Options to qualify as
Incentive Stock Options pursuant to Section 422(d) of
the Code.
v. No Incentive Stock Options shall be granted after the
date which is the earlier of ten (10) years from the
date of the adoption of the Plan by the Company and
the date of the approval of this Plan by the
shareholders of the Company.
vi. Each Participant who receives an Incentive Stock
Option must agree to notify the Company in writing
immediately after the Participant makes a
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<PAGE>
Disqualifying Disposition of any shares acquired
pursuant to the exercise of an Incentive Stock
Option. A Disqualifying Disposition is any
disposition (including any sale) of such shares
before the later of (i) two years after the date the
Participant was granted the Incentive Stock Option,
or (ii) one year after the date the Participant
acquired shares by exercising the Incentive Stock
Option. If the Participant has died before such stock
is sold, these holding period requirements do not
apply and no Disqualifying Disposition can occur
thereafter.
e. PAYMENT. Options granted under this Section 6 shall be
exercised in accordance with the applicable Award Agreement by
the delivery of a proper notice of exercise to the Company,
setting forth the number of Shares with respect to which the
Option is to be exercised. No shares of Common Stock shall be
issued on the exercise of an Option unless the Option Price is
paid for in full at the time of exercise. Payment shall be
made in cash, which may be paid by check or other instrument
acceptable to the Committee. In addition, subject to
compliance with applicable laws and regulations and such
conditions as the Committee may impose, the Option holder may
deliver with his exercise notice irrevocable instructions to a
broker to promptly deliver to the Company an amount of sale or
loan proceeds sufficient to pay the exercise price or other
methods approved by the Committee. As soon as practicable
after receipt of proper notification of exercise and full
payment, the Company shall deliver to the Participant, in the
Participant's name, Share certificates in an appropriate
amount based upon the number of Shares purchased under the
Option(s).
f. RESTRICTIONS ON SHARE TRANSFERABILITY. The Committee may
impose such restrictions on any Shares acquired pursuant to
the exercise of an Option granted under this Section 6 as it
may deem advisable, including, without limitation,
restrictions under applicable federal securities laws, under
the requirements of any stock exchange or market upon which
such Shares are then listed and/or traded, and under any state
securities laws applicable to such Shares.
g. TERMINATION OF EMPLOYMENT. Each Option, to the extent it has
not been previously exercised, shall terminate upon the
earliest to occur of: (a) the expiration of the Option period
set forth in the Award Agreement; (b) for ISOs, the expiration
of three months following the Participant's Retirement
(following the Participant's Retirement, NQSOs shall terminate
upon the expiration of the Option period set forth in the
Option Award Agreement); (c) the expiration of 12 months
following the Participant's death or Disability; (d)
immediately upon termination for Cause; (e) the expiration of
90 days following the Participant's termination of employment
for any reason other than Cause, Change in Control, death,
Disability, or Retirement; or (f) at such other time or times
and on such conditions provided for in the Award Agreement.
Upon a termination of
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<PAGE>
employment related to a Change in Control, Options shall be
treated in the manner set forth in Section 10.
h. NONTRANSFERABILITY OF OPTIONS.
i. INCENTIVE STOCK OPTIONS. No ISO granted under the
Plan may be sold, transferred, pledged, assigned or
otherwise alienated or hypothecated, other than by
will or by the laws of descent and distribution.
Further, all ISOs granted to a Participant under the
Plan shall be exercisable during his or her lifetime
only by such Participant.
ii. NONQUALIFIED STOCK OPTIONS. The Committee may, in its
discretion, authorize all or a portion of NQSOs
granted to a Participant to be on terms which permit
transfer by such Participant to (i) Immediate Family
Members, (ii) a trust or trusts for the exclusive
benefit of such Immediate Family Members, or (iii) a
partnership in which such Immediate Family Members
are the only partners, provided that (A) there may be
no consideration for any such transfer, (B) the Award
Agreement pursuant to which such Options are granted
must be approved by the Committee, and must expressly
provide for transferability in a manner consistent
with this Section, and (C) subsequent transfers of
transferred Options shall be prohibited except those
by will or the laws of descent and distribution.
Following transfer, any such Options shall continue
to be subject to the same terms and conditions as
were applicable immediately prior to transfer,
provided that for purposes of this Plan, the term
"Participant" shall be deemed to refer to the
transferee. The events of termination of employment
shall continue to be applied with respect to the
original Participant, following which the Options
shall be exercisable by the transferee only to the
extent, and for the periods specified in this Section
6(h). Notwithstanding the foregoing, should the
Committee provide that Options granted be
transferable, the Company by such action incurs no
obligation to notify or otherwise provide notice to a
transferee of early termination of the Option. In the
event of a transfer, as set forth above, the original
Participant is and will remain subject to and
responsible for any applicable withholding taxes upon
the exercise of such Options.
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<PAGE>
7. RESTRICTED STOCK.
a. GRANT OF RESTRICTED STOCK. Subject to the terms and provisions
of the Plan, the Committee, at any time and from time to time,
may grant Shares of Restricted Stock to Participants in such
amounts as the Committee shall determine. Without limiting the
generality of the foregoing, Restricted Shares may be granted
in connection with payouts under other compensation programs
of the Company.
b. RESTRICTED STOCK AGREEMENT. Each Restricted Stock grant shall
be evidenced by a Restricted Stock Award Agreement that shall
specify the Period(s) of Restriction, the number of Shares of
Restricted Stock granted, and such other provisions as the
Committee shall determine.
c. TRANSFERABILITY. Except as provided in this Section 7, the
Shares of Restricted Stock granted herein may not be sold,
transferred, pledged, assigned or otherwise alienated or
hypothecated until the end of the applicable Period of
Restriction established by the Committee and specified in the
Restricted Stock Award Agreement, or upon earlier satisfaction
of any other conditions, as specified by the Committee in its
sole discretion and set forth in the Restricted Stock Award
Agreement. All rights with respect to the Restricted Stock
granted to a Participant under the Plan shall be available
during his or her lifetime only to such Participant.
d. OTHER RESTRICTIONS. Subject to the Plan, the Committee shall
impose such other conditions and/or restrictions on any Shares
of Restricted Stock granted pursuant to the Plan as it may
deem advisable including, without limitation, a requirement
that Participants pay a stipulated purchase price for each
Share of Restricted Stock, restrictions based upon the
achievement of specific performance objectives, time-based
restrictions on vesting following the attainment of the
performance objectives, and/or restrictions under applicable
federal or state securities laws. At the discretion of the
Committee, the Company may retain the certificates
representing Shares of Restricted Stock in the Company's
possession until such time as all conditions and/or
restrictions applicable to such Shares have been satisfied.
Except as otherwise provided in this Section 7, Shares of
Restricted Stock covered by each Restricted Stock grant made
under the Plan shall become freely transferable by the
Participant after the last day of the applicable Period of
Restriction, subject to applicable securities laws.
e. VOTING RIGHTS. During the Period of Restriction, Participants
holding Shares of Restricted Stock granted hereunder may
exercise full voting rights with respect to those Shares.
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<PAGE>
f. DIVIDENDS AND OTHER DISTRIBUTIONS. During the Period of
Restriction, Participants holding Shares of Restricted Stock
granted hereunder may be credited with regular cash dividends
paid with respect to the underlying Shares while they are so
held. Such dividends may be paid currently, accrued as
contingent cash obligations, or converted into additional
shares of Restricted Stock, upon such terms as the Committee
establishes. The Committee may apply any restrictions to the
dividends that the Committee deems appropriate. In the event
that any dividend constitutes a "derivative security" or an
"equity security" pursuant to Rule 16(a) under the Exchange
Act, such dividend shall be subject to a vesting period equal
to the remaining vesting period of the Shares of Restricted
Stock with respect to which the dividend is paid.
g. TERMINATION OF EMPLOYMENT. Upon a Participant's death,
Disability, or Retirement, all Restricted Shares shall vest
immediately. Each Restricted Stock Award Agreement shall set
forth the extent to which the Participant shall have the right
to retain unvested Restricted Shares following termination of
the Participant's employment with the Company in all other
circumstances. Such provisions shall be determined in the sole
discretion of the Committee, shall be included in the Award
Agreement entered into with each Participant, need not be
uniform among all Shares of Restricted Stock issued pursuant
to the Plan, and may reflect distinctions based on the reasons
for termination of employment.
8. BENEFICIARY DESIGNATION.
A Participant under the Plan may make written designation of a
beneficiary on forms prescribed by and filed with the Secretary of the Company.
Such beneficiary, or if no such designation of any beneficiary has been made,
the legal representative of such Participant or such other person entitled
thereto as determined by a court of competent jurisdiction, may exercise, in
accordance with and subject to the provisions of Section 6, any unterminated and
unexpired Option granted to such Participant to the same extent that the
Participant himself could have exercised such Option were he alive or able;
provided, however, that no Option granted under the Plan shall be exercisable
for more Shares than the Participant could have purchased thereunder on the date
his employment by, or other relationship with, the Company and its Subsidiaries
was terminated.
9. RIGHTS OF ELIGIBLE PERSONS AND PARTICIPANTS.
Nothing in this Plan or any Award Agreement shall be deemed to: prevent
the Company or an Affiliate from terminating the employment, consultancy or
director status of a Participant; prevent a Participant from terminating his or
her own employment, consultancy or director status; give any Participant a right
to be retained in employment or other service by the Company or any Affiliate
for any period of time; confer on any person any right to be selected as a
Participant.
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<PAGE>
10. CHANGE IN CONTROL.
a. TREATMENT OF OUTSTANDING AWARDS. Upon the occurrence of a
Change in Control, unless otherwise specifically prohibited
under applicable laws, or by the rules and regulations of any
governing governmental agencies or national securities
exchanges:
i. Any and all Options granted hereunder shall become
immediately exercisable, and shall remain exercisable
throughout their entire term; and
ii. Any restriction periods and restrictions imposed on
Shares of Restricted Stock shall lapse; provided,
however, that the degree of vesting associated with
Restricted Stock which has been conditioned upon the
achievement of performance conditions pursuant to
Section 5(c) herein shall be determined in the manner
set forth in Section 7(d) herein.
b. TERMINATION, AMENDMENT, AND MODIFICATIONS OF CHANGE-IN-CONTROL
PROVISIONS. Notwithstanding any other provision of this Plan
or any Award Agreement provision, the provisions of this
Section 10 may not be terminated, amended, or modified on or
after the date of a Change in Control to affect adversely any
Award theretofore granted under the Plan without the prior
written consent of the Participant with respect to said
Participant's outstanding Awards.
11. AMENDMENT, MODIFICATION, AND TERMINATION.
a. AMENDMENT, MODIFICATION, AND TERMINATION. Subject to Section
10(b) herein, the Board or the Committee may at any time and
from time to time, alter, amend, suspend or terminate the Plan
in whole or in part, except that, without approval of the
stockholders of the Company, no such revision or amendment
shall increase the number of shares available for grants of
ISOs under the Plan or alter the class of participants in the
Plan. Notwithstanding the foregoing, neither the Company nor
the Board or Committee on its behalf may cancel outstanding
Awards and issue substitute Awards in replacement thereof or
reduce the exercise price of any outstanding Options without
stockholder approval.
b. ADJUSTMENT OF AWARDS UPON THE OCCURRENCE OF CERTAIN UNUSUAL OR
NONRECURRING EVENTS. The Committee may make adjustments in the
terms and conditions of, and the criteria included in, Awards
in recognition of unusual or nonrecurring events (including,
without limitation, the events described in Section 4(b)
hereof) affecting the Company or the financial statements of
the Company or of changes in applicable laws, regulations, or
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<PAGE>
accounting principles, whenever the Committee determines that
such adjustments are appropriate in order to prevent dilution
or enlargement of the benefits or potential benefits intended
to be made available under the Plan.
c. AWARDS PREVIOUSLY GRANTED. No termination, amendment, or
modification of the Plan shall adversely affect in any
material way any Award previously granted under the Plan,
without the written consent of the Participant holding such
Award.
12. WITHHOLDING.
a. TAX WITHHOLDING. The Company shall have the power and the
right to deduct or withhold, or require a Participant to remit
to the Company, an amount sufficient to satisfy federal,
state, and local taxes, domestic or foreign, required by law
or regulation to be withheld with respect to any taxable event
arising as a result of this Plan.
b. SHARE WITHHOLDING. To the extent provided by the Committee, a
Participant may elect to have any distribution to be made
under this Plan to be withheld or to surrender to the Company
shares of Common Stock already owned by the Participant to
fulfill any tax withholding obligation.
13. SUCCESSORS.
All obligations of the Company under the Plan with respect to Awards
granted hereunder shall be binding on any successor to the Company, whether the
existence of such successor is the result of a direct or indirect purchase of
all or substantially all of the business and/or assets of the Company, or a
merger, consolidation or otherwise.
14. LEGAL CONSTRUCTION.
a. GENDER AND NUMBER. Except where otherwise indicated by the
context, any masculine term used herein also shall include the
feminine; the plural shall include the singular; and, the
singular shall include the plural.
b. SEVERABILITY. In the event any provision of the Plan shall be
held illegal or invalid for any reason, the illegality or
invalidity shall not affect the remaining parts of the Plan,
and the illegal or invalid provision shall be modified to the
extent necessary to be legal and valid and shall be enforced
as modified.
c. REQUIREMENTS OF LAW. The granting of Awards and the issuance
of Shares under the Plan shall be subject to all applicable
laws, rules, and regulations, and to
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such approvals by any governmental agencies or national
securities exchanges as may be required.
d. SECURITIES LAW COMPLIANCE. With respect to Insiders,
transactions under this Plan are intended to comply with all
applicable conditions of Rule 16b-3 or its successors under
the Exchange Act. To the extent any provision of the Plan or
action by the Committee fails to so comply, it shall be deemed
null and void, to the extent permitted by law and deemed
advisable by the Committee.
e. GOVERNING LAW. To the extent not preempted by federal law, the
Plan, and all agreements hereunder, shall be construed in
accordance with and governed by the laws of the state of
Nevada.
15. RIGHTS AS A SHAREHOLDER.
No Participant to whom an Award has been granted shall have rights as a
shareholder with respect to any Shares covered by such Award, except after due
exercise of the Award and tender of the full purchase price for any Shares being
purchased pursuant to such exercise and registration of the Shares in the
Company's share register in the name of the Participant. Nothing in this Plan
shall affect a Participant's employment or other engagement by the Company,
including the Company's right to terminate such employment or engagement.
16. PURCHASE FOR INVESTMENT.
a. Unless the offering and sale of the Shares to be issued upon
the particular exercise of an Option shall have been
effectively registered under the Securities Act of 1933 (the
"1933 Act"), the Company shall be under no obligation to issue
the Shares covered by such exercise unless and until the
person(s) who exercise such Option shall represent and warrant
to the Company, prior to the receipt of such Shares, that such
person(s) are acquiring such Shares for their own respective
accounts, for investment, and not with a view to, or for sale
in connection with, the distribution of any such Shares. The
person(s) acquiring such Shares shall be bound by the
provisions of the following legend which shall be endorsed
upon the certificate(s) evidencing their Shares issued
pursuant to such exercise or such grant:
"The shares evidenced by this certificate have not been
registered under the Securities Act of 1933, as amended, or
under state securities laws to the extent applicable. The
shares may not be sold, offered for sale, or otherwise
transferred in the absence of an effective registration
statement under said Act (and any registration or
qualification as may be required under such state laws) or an
opinion of counsel satisfactory to the company and its counsel
that such registration or qualification is not required."
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b. The Company may delay issuance of the Shares until completion
of any action or obtaining of any consent which the Company
deems necessary under any applicable law (including, without
limitation, state securities or "blue sky" laws).
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Exhibit 10.3
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("AGREEMENT") is made effective as of the
17th day of May, 2000, by and between Photogen Technologies, Inc., a Nevada
corporation ("COMPANY"), and Taffy J. Williams, Ph.D. ("TJW").
RECITALS
A. TJW has experience as president and chief operating officer of a
public company in the biotechnology and pharmaceutical field and other
experience relevant to acting as the chief executive officer of the Company;
and
B. The Company desires to employ TJW as President and Chief
Executive Officer of the Company and TJW agrees to serve in that capacity
subject to the terms of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises herein and
for other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties agree as follows:
1. DEFINITIONS. The following terms have the meanings set
forth below:
(a) "COMPETITIVE BUSINESS" means engaging in the
management, research, development, sale, lease, marketing, financing or
distribution of technology, products or services competitive with the
Company's products or services in the Field anywhere in the world.
(b) "CONFIDENTIAL INFORMATION" means, subject to 1(b)(ii)
below, any and all non-public information that has or could have value or
utility to the Company or any of its affiliates, whether or not reduced to
written or other tangible form and all copies thereof, relating to the
Company's or its affiliates' private or proprietary matters, confidential
matters or trade secrets (including information developed by or at the
direction of TJW). For purposes of illustration, Confidential Information may
be contained in various media, including, without limitation, records of
research data and observations, records and results of preclinical and
clinical trials, patent applications, regulatory filings, computer programs,
manuals, plans, drawings, designs, specifications, supply and customer lists,
internal financial data and other documents and records of the Company or its
affiliates, whether or not labeled or identified as "Confidential."
(i) Confidential Information includes, but is not limited to,
the following: (A) the Company's Technical Information; (B) except to
the extent publicly disclosed without any fault directly or indirectly
of TJW, information relating to the Company's Patents; (C) business
information, such as information concerning any products,
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customers, suppliers, production, developments, costs, purchasing,
pricing, profits, markets, sales, accounts, customers, financing,
acquisitions, strategic alliances or collaborations, expansions; and
(D) other information relating to the Company's or any of its
affiliates' business practices, strategies or policies.
(ii) Confidential Information does not include information
that is or becomes generally known to the public or in the industry
without any fault directly or indirectly of TJW, or information in
which the Company ceases to have a legally protectable interest.
(c) "DEVELOPMENTS" means any and all Patents and Technical
Information that during the Term of this Agreement and for twelve (12) months
after termination (regardless of the reason for termination), TJW conceives,
reduces to practice, discovers or makes, alone or with others (i) by use of
the Company's equipment, facilities, Confidential Information, Technical
Information, Research Materials or other intellectual property, through a
research project sponsored or funded by the Company or otherwise; or (ii)
which are directly or indirectly related to or result from TJW Duties.
(d) "FIELD" means the use of electromagnetic energy
(including light generated by ultra fast lasers or other sources, x-rays and
other sources of radiation), alone or in combination with photoactive
compounds or targeting agents, to treat, diagnose or image human or animal
tissue and/or disease.
(e) "PATENTS" means patents, patent applications, and
patent disclosures, together with all reissuances, continuations,
continuations-in-part, revisions, extensions, and reexaminations thereof.
(f) "RESEARCH MATERIALS" means and includes, without
limitation, photoactive compounds, targeting agents, lasers, proprietary
software and other materials provided to or used by any of the Company's
employees, agents or consultants.
(g) "TECHNICAL INFORMATION" means technical information or
other intellectual property (whether or not subject to patent or other
registration with any governmental office), including research and
development, methods, trade secrets, know-how, formulas, compositions,
protocols, processes and techniques, discoveries, machines, inventions,
ideas, computer programs (including software and data used in all such
programs), drawings, and specifications, including information relating to
Patents.
2. TJW DUTIES.
(a) During the Term of this Agreement, TJW shall use his
best efforts and devote his full working time and attention to competently
and faithfully promote the Company's best interests, develop the Company's
products and perform all duties of a chief executive officer, and he shall
accept all reasonable responsibilities incidental to such position, and he
shall
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perform such other reasonable duties as may be set forth in the Bylaws for
the chief executive officer or assigned to him by the Board of Directors of
the Company, to which he shall report regularly ("TJW DUTIES").
(b) TJW may perform the TJW Duties from his home base in
the Philadelphia area, provided that TJW shall travel from time to the
Company's Boston, Massachusetts and Knoxville, Tennessee offices and
elsewhere as may be necessary to properly and fully perform his duties.
(c) The Company will recommend TJW's election to the Board
of Directors and appointment as President of the Company as soon as
practicable after the effectiveness of this Agreement.
3. COMPENSATION.
(a) Company shall pay TJW an annual base salary of
$265,000.00, payable in monthly installments of $22,083.33, in accordance
with normal Company payroll procedures and subject to deductions and
withholdings required by law or by agreement with TJW ("BASE SALARY"). The
Base Salary shall be reviewed annually by the Board of Directors or an
appropriate committee of the Board for increase based on performance in the
sole discretion of the Board of Directors or an appropriate committee of the
Board; provided, however, that the Base Salary shall be increased on each
annual anniversary date of this Agreement to reflect any increase in the
Consumer Price Index published by the United States Department of Labor for
the Philadelphia area for the previous year. The Base Salary shall not be
lowered from the previous year during the Term. Company will reimburse TJW
for reasonable and necessary business expenses in accordance with the
Company's policies.
(b) The Board of Directors or an appropriate committee of
the Board shall review TJW's performance each year for purposes of paying a
bonus, which determination shall be in the sole discretion of the Board of
Directors or an appropriate committee; provided, however, that a bonus shall
be payable at the first anniversary of this Agreement for the prior year's
service in the amount of at least $66,250.00.
(c) Concurrently with the execution of this Agreement,
Company and TJW will execute an Incentive Stock Option Award Agreement
("Award Agreement") providing for the Company to grant TJW a total of
3,000,000 options to acquire Company common stock, pursuant to Company's
Senior Executive Long Term Incentive Compensation Plan. The options will vest
in accordance with and in all other respects be subject to the provisions of
the Award Agreement and the Plan, copies of which are attached as Exhibits A
and B hereto.
(d) TJW will be eligible to participate in and receive
benefits provided under Company's insurance and benefit plans as set forth on
Exhibit C, in accordance with their respective provisions; provided, however,
that subject to a reasonable premium, TJW shall be
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provided term insurance by the Company at its cost on his life equal to two
times his salary on the effective date and each anniversary thereof during the
Term.
(e) The following terms are defined for purposes of this
paragraph:
(i) "Business Combination" means a transaction described in
Sections 2(g)(i) or 2(g)(iii) of the Senior Executive Long Term
Incentive Compensation Plan, including clauses A, B and C of Section
2(g)(iii).
(ii) "Option Value" means the spread between the option
exercise price per share and the fair market value per share of the
Company's Common Stock subject to options pursuant to TJW's Award
Agreement as of the date of the closing of a Business Combination,
multiplied by the number of shares subject to vested options pursuant
to the Award Agreement.
If the Company engages in a Business Combination approved
by the Board of Directors during the Term or within 24 months after the
termination of the Term, the Company will pay TJW a "Special Bonus" equal to
0.7% of the aggregate consideration paid by the buyer if any Business
Combination closes during the first year of the Agreement, 1.4% of such
consideration if the Business Combination closes during the second year of
the Agreement, or 2.1% of such consideration if the Business Combination
closes during the third or subsequent year of the Agreement or within 24
months after the termination of the Term; provided, however, that the amount
of the Special Bonus shall not exceed $10,000,000 and the Special Bonus shall
be reduced dollar for dollar by the Option Value. Notwithstanding anything to
the contrary, under no circumstances will any Special Bonus be due or payable
if the Option Value equals or exceeds $10,000,000 as of the closing of the
Business Combination. The Special Bonus will be payable to TJW in cash in a
lump sum by the end of the day of the closing of a Business Combination
pursuant to the terms and conditions of this paragraph. The fair market value
of Common Stock subject to TJW's Award Agreement and the value of any
non-cash consideration received in a Business Combination shall be determined
by the Company's Board of Directors in good faith based upon the opinion or
advice of independent outside experts. TJW shall not be entitled to vote as a
director (but he may participate in Board meetings and may be counted towards
a quorum) in connection with any Business Combination pursuant to which he
would receive a Special Bonus.
4. COVENANTS AND REPRESENTATIONS. TJW represents and warrants to, and
covenants with, the Company as follows:
(a) During the Term, TJW will render his services only to the
Company and will not without the written consent of the Board of Directors enter
into any other agreement, arrangement, understanding, or other relationship
pursuant to which TJW is obligated to render advice and services or to devote
his time and attention during working hours to any third party.
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(b) TJW is under no contractual or other obligation or
restriction which is inconsistent with TJW's obligations under this Agreement
or the performance of the TJW Services. TJW's pre-existing relationships with
governmental, commercial, educational or other institutions are listed in
Exhibit D. TJW has terminated all employment, consulting and similar
affiliations and relationships with the persons or entities listed on Exhibit
D.
(c) Except as described in Exhibit E hereto, the
performance of the TJW Duties does not and will not breach any agreement
which obligates TJW to keep in confidence any confidential or proprietary
information of any third party or to refrain from competing, directly or
indirectly, with the business of any third party. TJW shall not disclose to
Company or use in providing TJW Duties hereunder any confidential or
proprietary information of any third party. All Developments of TJW will be
free and clear of any valid claim or encumbrance by any third party. TJW owns
no items of intellectual property in the Field that are not subject to
paragraph 5, below
(d) In performing the TJW Duties, TJW shall comply with all
legal and regulatory requirements established by the Securities and Exchange
Commission, Food & Drug Administration and all other applicable governmental
authorities.
5. OWNERSHIP OF DEVELOPMENTS
(a) TJW hereby assigns and transfers to the Company all of
TJW's right, title and interest in and to all Developments for the Company's
ownership and use without restriction or additional compensation. TJW agrees
to sign and deliver to the Company (during and after the Term) other
documents the Company considers necessary or desirable to evidence its
ownership of Developments. All copyrightable works that are Developments,
whether or not works made for hire (as defined in 17 U.S.C. Section 101),
shall be owned by the Company and it may file and own the same as the author
throughout the world. If the Company is unable after reasonable efforts to
secure TJW's signature on any document necessary or desirable to apply for,
prosecute, obtain, or enforce any patent, trademark, service mark, copyright,
or other right or protection relating to any Development, TJW hereby
irrevocably designates and appoints the Company and each of its duly
authorized officers and agents, as TJW's agent and attorney-in-fact to act
for and in TJW's behalf, name and stead to execute and file any such document
and to do all other lawfully permitted acts to further the prosecution,
issuance, and enforcement of patents, trademarks, service marks, copyrights,
or other rights or protections with the same force and effect as if
personally executed and delivered by TJW. TJW agrees that this power of
attorney is irrevocable and is coupled with an interest and thereby survives
TJW's death or disability.
(b) TJW shall keep and maintain complete written records of
all Developments and Technical Information done or carried out by TJW. TJW
agrees to promptly and fully disclose in writing to the Company's Board of
Directors, all Developments and Technical Information. These records shall be
works made for hire, and shall remain the exclusive property of Company. TJW
may keep one copy of these records in TJW's files during
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the Term of this Agreement solely for reference purposes; however, all
originals of such records shall be turned over to the Company promptly and
regularly and no less frequently than monthly.
6. CONFIDENTIALITY.
(a) The Company has developed and will develop Confidential
Information over a substantial period of time and at substantial expense. The
Confidential Information is of great importance to the Company's business.
During the Term, TJW may develop, become aware of, or have access to the
Confidential Information. TJW acknowledges the Company is and shall at all
times remain the sole owner of the Confidential Information.
(b) During the Term and at all times thereafter, TJW will
hold in trust, keep confidential and not disclose, directly or indirectly, to
any third parties or make any use of Confidential Information for any purpose
except for the benefit of the Company in the performance of the TJW Duties,
and then only in a manner consistent with the Company's instructions. Upon
termination of the Term (regardless of the reason for termination), TJW will
immediately return to the Company all tangible Confidential Information and
any other material made or derived from Confidential Information, including
information stored in electronic format and handwritten notes, which are in
TJW's possession or control or which TJW delivered to others. TJW may
disclose the Confidential Information if required by law to do so or by
subpoena or other order of a court of competent jurisdiction, provided that
in either case, reasonable advance notice is given to the Company before any
such disclosure is made and TJW cooperates with the Company to obtain
confidential protection.
(c) During the Term and thereafter, TJW shall exercise all
commercially reasonable precautions to physically protect the integrity and
confidentiality of the Confidential Information. Except to the extent
necessary to perform his duties, TJW will not remove any Confidential
Information or copies thereof from the Company's premises or the other places
TJW is authorized to perform the TJW Duties.
(d) TJW will comply with Company's policies concerning
publication with respect to his work for the Company.
7. NONCOMPETITION; NONSOLICITATION. During the Term, and for 24
months after termination of the Term (regardless of the reason for
termination), TJW agrees not to, directly or indirectly, (i) own (except as
owner of 2% or less of stock of a publicly registered and traded entity),
manage, control, participate in, consult with, be employed by, render
services for, any person or entity engaged in a Competitive Business or in
any manner or in any capacity engage in any Competitive Business, (ii)
solicit, induce or attempt to influence any other person or entity to engage
in any Competitive Business or to curtail or cease any business or employment
relationship with the Company, its affiliates, employees or independent
contractors, or (iii) disparage the Company, its affiliates, employees,
independent contractors or its or their services or products.
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8. TERM AND TERMINATION.
(a) Unless terminated earlier pursuant to paragraph 8(b)
below, this Agreement shall be in effect for an initial term of three years
beginning on the effective date hereof (the "INITIAL TERM"). This Agreement
may be renewed for successive renewal terms of one year (the "RENEWAL TERMS")
upon the mutual written agreement of the parties prior to the beginning of
any Renewal Term; provided, however, if the Company declines to renew and TJW
desires to renew on substantially identical terms, TJW shall be provided one
year's severance; further, provided, that if the Company desires to renew on
substantially identical terms and TJW does not, no severance shall be
provided to TJW. The Initial Term and any Subsequent Renewal Terms are
collectively referred to as the "TERM."
(b) This Agreement and TJW's employment by the Company may
be terminated before the expiration of any Term as follows:
(i) By the Company in the following events (terminations under
(1) and (2) below are deemed "for cause"):
(1) TJW commits a material breach of this
Agreement where such breach, if curable, is
not remedied to the Company's reasonable
satisfaction within thirty (30) days after
written notice to TJW (and termination shall
be effective as of the end of such 30-day
period); or
(2) TJW is convicted (or pleads guilty or no
contest) for committing an act of fraud,
embezzlement, theft or another act
constituting a felony or moral turpitude
(and termination shall be effective upon
written notice to TJW); or
(3) TJW dies or becomes mentally or physically
disabled such that TJW cannot, in the
opinion of an independent physician selected
by the Company, perform his duties (with
reasonable accommodation to the extent
required by law) for a period of the next 12
consecutive months (and termination shall be
effective on the date TJW dies or 30 days
after the Company gives written notice that
the Company has determined he is disabled
under the foregoing criteria);
in which case: (A) the Company shall pay TJW his Base
Salary and any other amounts required by applicable
law to be paid through the effective date of
termination but the Company shall have no other
obligations under this Agreement as of the effective
date of the termination, and (B) the
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Company shall permit TJW or his beneficiary to
exercise vested options to acquire Company stock in
accordance with and subject to the Award
Agreement.
(ii) By TJW, provided TJW shall give the Company at least
ninety (90) days prior written notice thereof (and termination shall be
effective as of the end of such 90-day or longer period); in which case
(A) the Company shall pay TJW his Base Salary and any other amounts
required by applicable law to be paid through the effective date of
termination but the Company shall have no other obligations under this
Agreement as of the effective date of the termination, and (B) the
Company shall permit TJW to exercise vested options to acquire Company
stock in accordance with and subject to the Award Agreement.
(iii) By the Company at any time and for any reason other than
as set forth in paragraphs 8(b)(i)(1), 8(b)(i)(2) or 8(b)(i)(3), in
which case the Company shall pay TJW a severance payment equal to his
then current Base Salary if so terminated in his first year of
employment: 1.5 times his then current Base Salary if so terminated in
his second year of employment; and 2 times his then current Base Salary
if so terminated in his third year of employment and thereafter.
Further, all granted options shall vest and be available for exercise
during the remaining life of the options. A significant reduction in
TJW Duties or his reporting responsibilities to the Board of Directors
shall be deemed a termination for reasons other than as set forth in
paragraphs 8(b)(i)(1), 8(b)(i)(2) or 8(b)(i)(3).
(c) Notwithstanding anything to the contrary, the
obligations under this Agreement which by their terms survive termination,
including, without limitation, the applicable Developments, Confidentiality,
Noncompetition, and Nonsolicitation provisions of this Agreement as set forth
in paragraphs 5, 6 and 7 hereof, shall survive termination; and the
representations and warranties, including without limitation the provisions
of paragraph 4 hereof, shall survive termination. Upon termination, TJW shall
return immediately to the Company all property belonging to the Company.
9. MISCELLANEOUS.
(a) This Agreement and the rights and obligations hereunder
may not be assigned, delegated or transferred by TJW without the prior
written consent of the Company. The Company may assign this Agreement to an
affiliate of the Company or to an acquirer or successor in connection with
the merger, consolidation, or sale of all or substantially all of its assets
or business, and this Agreement shall inure to the benefit of the Company's
assignee; provided, however, that the Company shall continue to be obligated
hereunder.
(b) This Agreement may not be amended or modified, or any
provision hereof waived, except by a written instrument duly signed by both
parties contemporaneously or after the date of this Agreement. This Agreement
(together with its exhibits) constitutes the entire
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agreement between the parties concerning the subject matter hereof and
thereof, and supersedes all prior written or oral negotiations,
representations and agreements concerning such subject matter which prior
matters shall not be binding on the parties.
(c) TJW acknowledges that a breach of paragraphs 5, 6 or 7
would cause the Company and its affiliates irreparable harm. Accordingly, in
the event of a breach or threatened breach by TJW of any of the provisions of
paragraphs 5, 6 or 7, TJW agrees that the Company shall be entitled to seek
injunctive relief restraining TJW and any individual or entity from
participating in such breach or threatened breach or an order compelling
compliance with this Agreement. Nothing herein shall be construed as
prohibiting the Company from pursuing any other remedies available at law or
in equity for any breach or threatened breach of this Agreement.
(d) Any waiver of a breach of any provision of this
Agreement shall not operate as a waiver of any other breach of such provision
or any other provision, nor shall any failure to enforce any provision hereof
operate as a waiver of such provision or of any other provision.
(e) If any provision of this Agreement is deemed in a final
order by a court of competent jurisdiction to be unenforceable or invalid,
the enforceability and validity of all other provisions shall not be affected
and that court shall modify the unenforceable or invalid provision to the
extent necessary to render it enforceable and valid and that provision shall
be enforced as modified. TJW agrees that the time period and scope of the
covenants in paragraphs 5, 6 and 7 of this Agreement are reasonable and
appropriate under the circumstances of the Company's business and TJW's
executive-level position with the Company.
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IN WITNESS WHEREOF, TJW and the President of the Company have signed
this Agreement as of the Effective Date.
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<TABLE>
<CAPTION>
COMPANY TJW
<S> <C>
Photogen Technologies, Inc.
By: /s/ Timothy C. Scott By: /s/ Taffy J. Williams
---------------------------------------- ------------------------------
Timothy C. Scott, Ph.D., President Taffy J. Williams, Ph.D.
Address: 7327 Oak Ridge Highway Address:
Suite B --------------------------------
Knoxville, TN 37931 --------------------------------
Telephone: 423/769-4011
Telecopier: 423/769-4013 Telephone:
E-mail: [email protected] ----------------------
Telecopier:
---------------------
E-mail:
-------------------------
</TABLE>
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EXHIBITS
A Award Agreement
B Senior Executive Long Term Incentive Compensation Plan
C Benefits
D TJW's Preexisting Relationships
E Exceptions to TJW's Duties
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EXHIBIT C
Photogen Technologies, Inc. and Subsidiaries
Employee Benefit Programs
As of April 30, 2000, employee benefits offered are:
(1) Participation in the company sponsored 401(k) plan. There is no
company matching. The plan is with Transamerica Asset Management
and employees may begin participating immediately upon employment.
Employee salary reductions are limited to the lessor of 15% of
compensation (by the plan) and $10,500 annually (by law).
(2) Coverage by company paid group medical coverage. This coverage is
currently with Principal Mutual Insurance, but the company is
constantly reviewing and comparing coverage with other plans.
Current coverage includes not only medical coverage but also dental
and life insurance of $25,000.
(3) Paid vacation for 4 weeks.
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT D
TJW'S PRE-EXISTING RELATIONSHIPS
<S> <C> <C>
1. Naval Medical Research Institute Employee
2. Magainin Pharmaceutical Company Employee
3. Panax/InKine Pharmaceutical Company Employee
4. Demegen Consultant
</TABLE>
<PAGE>
EXHIBIT E
EXCEPTIONS TO PERFORMANCE OF TJW'S DUTIES
1. Through 2003, TJW is subject to a contractual obligation not to solicit
employees from some or all of the following entities:
Naval Medical Research Institute, Magainin Pharmaceutical Company,
Panax/InKine Pharmaceutical Company, Demegen
2. TJW is subject to confidentiality agreements with InKine Pharmaceutical
Company and Demegen.
3. Through 2003, TJW is subject to non-competition restrictions in some or
all of the following areas:
Purgatives and Laxatives; certain inflammatory mediators as they relate
to Inflammatory Bowel Disease; Idiopathic Thrombocytapenia (ITP);
Thrombospondin Technology; certain peptide antibiotics
<PAGE>
Exhibit 10.4
PHOTOGEN TECHNOLOGIES, INC.
INCENTIVE STOCK OPTION AWARD AGREEMENT
THIS AWARD AGREEMENT ("Agreement") is made effective as of May 17,
2000, by and between Photogen Technologies, Inc., a Nevada corporation (the
"Company"), and Taffy J. Williams, Ph.D. (the "Optionee").
W I T N E S S E T H:
WHEREAS, the Company, through its Compensation Committee (the
"Committee"), desires to grant to the Optionee an incentive stock option
pursuant to its Senior Executive Long Term Incentive Compensation Plan (the
"Plan") to purchase shares of the Company's common stock, par value $.001 per
share (the "Common Stock").
NOW, THEREFORE, the parties hereto, intending to be legally bound,
agree as follows:
1. GRANT OF OPTION AND TAX CONSEQUENCES. Subject to the terms and
conditions of this Agreement and the Plan, a copy of which has been delivered
to the Optionee, the Company hereby grants to the Optionee the right and
option to purchase from the Company all or part of an aggregate of 3,000,000
shares of Common Stock (the "Option"). The per share exercise price at which
the shares subject to Option may be purchased by Optionee shall be $15.00,
which price equals the closing sale price of the Common Stock as reported by
the Nasdaq SmallCap Market on the effective date of grant of this Option.
This Option is intended to qualify as an Incentive Stock Option within the
meaning of Section 422A of the Internal Revenue Code of 1986, as amended (the
"Code") (except to the extent limited by Section 422(d) of the Code, in which
case such portion of the Option that does not qualify as an Incentive Stock
Option under Section 422(a) shall be a NonQualified Stock Option). Optionee
should seek advice from his or her tax advisor concerning the Federal and
State income tax consequences of the Options and disposition of the Common
Stock following exercise.
2. TIME OF EXERCISE. The Option will vest in accordance with, and
Optionee's right to exercise this Option shall be subject to, the following:
1,000,000 Shares covered by the Option will vest and may first be
exercised on the first anniversary date of this Agreement; 1,000,000
additional Shares will vest and may first be exercised on the second
anniversary date of this Agreement; and 1,000,000 additional Shares will vest
and may first be exercised on the third anniversary date of this Agreement.
<PAGE>
Subject to Section 5, below, the right to exercise this Option shall in all
events expire at the close of business on the tenth anniversary of the date
of this Agreement, unless such right expires and terminates sooner in
accordance with this Agreement and the Plan. The Optionee's right to exercise
this Option shall be accelerated as provided in paragraph 5(e) below and as
may be provided by action of the Committee.
3. ISO PROVISIONS.
(a) Optionee represents and warrants to the Company that
Optionee does not own, directly or by reason of the applicable attribution
rules in Code Section 424(d) and related Treasury Regulations, more than 10%
of the total combined voting power of all classes of share capital of the
Company or an Affiliate.
(b) Optionee understands and agrees that Code Section
422(d) provides that to the extent the Fair Market Value of stock with
respect to which incentive stock options are exercisable for the first time
(and thereby vest) during any calendar year (under the Plan and any other
incentive stock option plan of the Company or an Affiliate) exceeds $100,000,
such excess options will be non-qualified stock options. Accordingly,
Optionee agrees that to the extent this Option first becomes exercisable in
any year with respect to stock whose Fair Market Value exceeds $100,000, the
remaining portion of the Option that first becomes exercisable in that year
shall be a Non-Qualified Stock Option.
(c) Optionee agrees to notify the Company in writing
immediately after Optionee makes a Disqualifying Disposition of any Shares
acquired pursuant to the exercise of the Option. A "Disqualifying
Disposition" is any disposition (including any sale) of such Shares before
the later of (i) two years after the date the Optionee was granted the Option
hereunder, or (ii) one year after the date the Optionee acquired Shares by
exercising any part of the Option. If the Participant has died before such
stock is sold, these holding period requirements do not apply and no
Disqualifying Disposition can occur thereafter.
4. METHOD OF EXERCISE AND PAYMENT FOR SHARES. This Option shall be
exercised by written notice directed to the Company at its principal office,
specifying the number of Shares to be acquired upon such exercise and
indicating that the exercise is being paid for (i) in cash, (ii) if
applicable, by a commitment by a broker-dealer to pay to the Company that
portion of any sale proceeds receivable by the Optionee upon the exercise of
the Option and sale of underlying Shares, or (iii) in a cashless exercise
whereby the number of Shares to be acquired shall be equal to the product of
(x) the number of Shares as to which the Option is being exercised,
multiplied by (y) a fraction, the numerator of which is the Fair Market Value
of the Shares as of the close of business on the date of exercise, minus the
Option Price of the Shares and the denominator of which is the said Fair
Market Value per share. Full payment for the Shares to be purchased on
exercise shall
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accompany the notice, as applicable. The Option may be exercised by the
designated beneficiary or legal representative of Optionee in accordance with
Section 8 of the Plan.
5. TERMINATION OF OPTION. Optionee is a party to that certain
Employment Agreement with the Company dated as of May 17, 2000 (the
"Employment Agreement"). Section 8 of the Employment Agreement provides that
the Employment Agreement and Optionee's employment by the Company may be
terminated upon the occurrence of certain events. The effective date of the
termination under the Employment Agreement is referred to herein as the
"Effective Date." The Options subject to this Agreement will terminate in
accordance with the following provisions if the Employment Agreement
terminates:
(a) If the Employment Agreement is terminated pursuant to
Sections 8(b)(i)(1) or (2) or Section 8(b)(ii) thereof, all Options that were
not vested before the Effective Date and all vested Options that Optionee
does not exercise before the Effective Date shall terminate as of the
Effective Date.
(b) If the Employment Agreement is terminated pursuant to
Section 8(b)(i)(3) thereof, Optionee (or his estate or personal
representative) will have 12 months after the Effective Date to exercise any
Options that vested in accordance with this Agreement before the Effective
Date. All Options that were not vested before the Effective Date shall
terminate as of the Effective Date and all vested Options that Optionee does
not exercise within such 12-month period shall terminate as of the end of
such 12-month period.
(c) If the Employment Agreement is terminated pursuant to
Section 8(b)(iii) thereof, the entire Option will immediately vest and will
remain exercisable for the remaining term of the Option.
(d) If the parties fail to renew this Agreement after the
Initial or any Renewal Term, all vested Options will remain exercisable for
the remaining term of the Option.
(e) Upon a termination of employment related to a Change in
Control, Options shall be treated in the manner set forth in Section 10 of
the Plan.
6. ADJUSTMENT. The Committee shall make adjustments to the aggregate
number and kind of shares or other securities subject to this Option and in
the purchase price of this Option to reflect any change in the capitalization
of the Company as contemplated in Section 4(b) of the Plan.
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7. OPTION NON-ASSIGNABLE AND NON-TRANSFERABLE. This Option and all
rights hereunder shall be non-assignable and non-transferable other than by
will or the laws of descent and distribution and shall be exercisable during
the Optionee's lifetime only by the Optionee or the Optionee's guardian or
legal representative. The Plan and this Agreement shall be binding upon the
Optionee and any permitted successors and assigns.
8. LIMITATION OF RIGHTS.
(a) No Rights as an Employee. Nothing in this Agreement or
the Plan shall be deemed to: create or affect any contract of employment
between the Optionee and Company or an Affiliate; prevent the Company or an
Affiliate from terminating Optionee's employment; give Optionee a right to be
retained in employment by the Company or any Affiliate for any period of
time; confer on any person any right to be selected as a Participant under
the Plan or the right to any other compensation, remuneration or benefits
(except to the extent expressly set forth in this Agreement).
(b) No Rights as a Stockholder. The Optionee shall have no
rights as a stockholder with respect to the shares covered by this Option
until the date the Optionee tenders full payment of the exercise price for
the portion of the Option being exercised and the issuance of a stock
certificate therefor, and no adjustment will be made for any dividends or
other rights for which the record date is prior to the date such certificate
is issued.
9. STOCK LEGEND. The Optionee hereby represents and warrants to the
Company that upon exercise of any portion of the Option hereunder that the
Optionee will be acquiring such Shares for his or her own account, for
investment and not with a view to, or for the sale in connection with, the
distribution of any such Shares except in compliance with applicable
securities laws. The Optionee hereby agrees that the following legend shall
be endorsed upon the certificates evidencing the Optionee's Shares issued
pursuant to the exercise of this Option (unless there is an effective
registration covering such Shares):
The Shares evidenced by this certificate have not been
registered under the Securities Act of 1933, as amended, or
under state securities laws to the extent applicable. The
Shares may not be sold, offered for sale, or otherwise
transferred in the absence of an effective registration
statement under said Act (and any registration or
qualification as may be required under such state laws) or an
opinion of counsel satisfactory to the Company and its counsel
that such registration or qualification is not required.
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10. PLAN GOVERNS. The Optionee acknowledges that he or she has
received and reviewed a copy of the Company's Plan and acknowledges that the
Award and this Agreement are subject to all the terms and provisions of the
Plan which are applicable to Incentive Stock Options. All capitalized terms
not otherwise defined in this Agreement shall have the meanings given to them
in the Plan. In the event of any inconsistency between the term of this
Agreement and the Plan, the terms of the Plan (all of which are incorporated
in this Agreement by reference) shall prevail; provided, however, that the
provisions of Section 5 hereof and Section 7 of the Employment Agreement
shall prevail over any conflicting provisions of Sections 2(f) or 6(g) of the
Plan (it being agreed that the conflicting provisions of Sections 2(f) and
6(g) of the Plan shall not be applicable to this Agreement).
11. REGISTRATION RIGHTS. The Company and Optionee agree to the
piggyback registration provisions set forth on Exhibit A attached hereto.
IN WITNESS WHEREOF, the Company has caused this Agreement
to be signed by one of its duly authorized officers, and the Optionee has
affixed his or her signature hereto on the date set forth above.
/s/ Taffy J. Williams, Ph.D.
-----------------------------------
Taffy J. Williams, Ph.D., Optionee
Photogen Technologies, Inc.
By: /s/ Timothy C. Scott
-----------------------------------
Timothy C. Scott, President
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EXHIBIT A
PIGGYBACK REGISTRATION RIGHTS
1. PIGGYBACK REGISTRATIONS. (a) RIGHT TO PIGGYBACK. If, at any time
before the Company's registration statement on Form S-8 covering shares
issued pursuant to the Senior Executive Long Term Incentive Compensation Plan
becomes effective pursuant to the Securities Act the Company shall propose to
register Common Stock under the Securities Act (other than in a registration
on Form S-3 relating to sales of securities to participants in a Company
dividend reinvestment plan, Forms S-4 or S-8 or any successor forms, or in
connection with an acquisition or exchange offer or an offering of securities
solely to the existing shareholders or employees of the Company), the Company
shall give prompt written notice to the Optionee of its intention to effect
such a registration and, subject to the other terms of this Exhibit A, shall
include in such registration all Registrable Securities that are permitted
under applicable securities laws to be included in the form of registration
statement selected by the Company and with respect to which the Company has
received written requests for inclusion therein by the Optionee within 10
days after the receipt of the Company's notice (each, a "PIGGYBACK
REGISTRATION").
(b) PRIORITY ON PIGGYBACK REGISTRATIONS. If in the
Company's reasonable judgment, the number of securities requested to be
included in such registration exceeds the number which can be sold in such
offering without adversely affecting the marketability of the offering, the
Company may allocate or reduce the number of shares to be registered
hereunder as follows:
(i) first, up to that number of securities the Company
proposes to sell;
(ii) second, up to that number of registrable securities
requested to be included in such registration by the holders of the Series A
Convertible Exchangeable Preferred Stock;
(iii) third, up to that number of registrable securities
requested to be included in such registration by the holders of the Series B
Convertible Preferred Stock;
(iv) fourth, up to that number of registrable securities
requested to be included in such registration by the holders of Company
securities whose registration rights, in the reasonable judgment of the
Company, are senior to the registration rights of Optionee hereunder;
(v) fifth, up to that number of Registrable Securities
requested to be included in such registration by the Optionee; and
(vi) sixth, up to that number of other securities requested
to be included in such registration.
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(c) RIGHT TO TERMINATE REGISTRATION. If, at any time after
giving written notice of its intention to effect a Piggyback Registration and
prior to the effective date of the registration statement filed in connection
with such registration, the Company shall determine for any reason not to
register such securities, the Company may, at its election, give written
notice of such determination to Optionee and thereupon be relieved of its
obligation to register any Registrable Securities in connection with such
registration (but not from its obligation to pay the Registration Expenses in
connection therewith as provided herein).
2. EXPENSES OF REGISTRATION. Expenses incurred in connection with
Piggyback Registrations shall be borne by the Company.
3. HOLDBACK AGREEMENTS. Optionee agrees, in the event of an
underwritten public offering of Common Stock under a registration statement
on Form S-1, S-3 or S-4, not to effect any offer, sale, distribution or
transfer, including a sale pursuant to Rule 144 (or any similar provision
then effect) under the Securities Act (except as part of such registration),
beginning on the date of receipt of a written notice from the Company setting
forth its intention to effect such registration and ending on the earlier of
(i) 180 days from the date of receipt of such written notice or (ii) 90 days
from the effective date of such Registration Statement.
4. REGISTRATION PROCEDURES. Whenever the Company is under the
obligation to register Registrable Securities hereunder, the Company will use
all reasonable efforts to effect the registration and the sale of such
Registrable Securities, and pursuant thereto the Company will as
expeditiously as possible:
(a) subject to the provisions hereof, prepare and file with
the Commission a registration statement within 45 days of the receipt of
notice from the Optionee on any form for which the Company qualifies with
respect to such Registrable Securities and use all reasonable efforts to
cause such registration statement to become effective (provided that before
filing a registration statement or prospectus or any amendments or
supplements thereto, the Company will (i) furnish to the one counsel selected
by the Holders copies of all such documents proposed to be filed, which
documents will be subject to the review of such counsel, and (ii) notify
Optionee of Registrable Securities covered by such registration of any stop
order issued or threatened by the Commission);
(b) subject to the provisions hereof, prepare and file with
the Commission such amendments and supplements to such registration statement
and the prospectus used in connection therewith as may be necessary to keep
such registration statement effective for a period equal to the shorter of
(i) the time at which the registered shares are freely saleable under Rule
144(k), or (ii) the time by which all registrable securities covered by such
registration statement have been sold, and Optionee shall comply with
Company's reasonable requests in connection with such termination, and
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<PAGE>
comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement during
such period in accordance with the intended methods of disposition by the
sellers thereof set forth in such registration statement;
(c) furnish to Optionee such number of copies of such
registration statement, each amendment and supplement thereto, the prospectus
included in such registration statement (including each preliminary
prospectus) and such other documents as such seller may reasonably request in
order to facilitate the disposition of the Registrable Securities owned by
Optionee;
(d) use all reasonable efforts to register or qualify such
Registrable Securities under the securities or blue sky laws of such
jurisdictions as any seller reasonably requests and do any and all other acts
and things which may be reasonably necessary or advisable to enable Optionee
to consummate the disposition in such jurisdictions of the Registrable
Securities owned by Optionee (provided that the Company will not be required
to (i) qualify generally to do business in any jurisdiction where it would
not otherwise be required to qualify but for this Section 6(d), (ii) subject
itself to taxation in any jurisdiction, or (iii) consent to general service
of process in any such jurisdiction);
(e) notify Optionee, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, of the
happening of any event as a result of which the prospectus included in such
registration statement contains an untrue statement of a material fact or
omits any fact necessary to make the statements therein not misleading, and,
at the request of any such seller, the Company will prepare a supplement or
amendment to such prospectus so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus will not contain
an untrue statement of a material fact or omit to state any fact necessary to
make the statements therein not misleading; provided, however, that the
Company shall not be required to amend the registration statement or
supplement the Prospectus for a period of up to 90 days if the board of
directors determines in good faith that to do so would reasonably be expected
to have a material adverse effect on any proposal or plan by the Company to
engage in any financing, acquisition or disposition of assets (other than in
the ordinary course of business) or any merger, consolidation, tender offer
or similar transaction or would require the disclosure of any information
that the board of directors determines in good faith the disclosure of which
would be detrimental to the Company, it being understood that the period for
which the Company is obligated to keep the Registration Statement effective
shall be extended for a number of days equal to the number of days the
Company delays amendments or supplements pursuant to this provision. Upon
receipt of any notice pursuant to this Section 6(e), the Optionee shall
suspend all offers and sales of securities of the Company and all use of any
prospectus until advised by the Company that offers and sales may resume, and
shall keep confidential the fact and content of any notice given by the
Company pursuant to this Section 6(e);
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<PAGE>
(f) cause all such Registrable Securities to be listed on
each securities exchange on which similar securities issued by the Company
are then listed;
(g) provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such registration
statement;
(h) enter into such customary agreements (including
underwriting agreements in customary form) and take all such other actions as
the reasonably request in order to expedite or facilitate the disposition of
such Registrable Securities;
(i) make available for inspection by a representative of
the Optionee any underwriter participating in any disposition pursuant to
such registration statement and any attorney, accountant or other agent
retained by any such seller or underwriter, all pertinent financial and other
records, pertinent corporate documents and properties of the Company, and
cause the Company's officers, directors, employees and independent
accountants to supply all information reasonably requested by any such
seller, underwriter, attorney, accountant or agent in connection with such
registration statement;
(j) otherwise use its reasonable efforts to comply with all
applicable rules and regulations of the Commission, and make available to its
security holders, as soon as reasonably practicable, an earnings statement
covering the period of at least 12 months beginning with the first day of the
Company's first full calendar quarter after the effective date of the
registration statement, which earnings statement shall satisfy the provisions
of Section 11(a) of the Securities Act and Rule 158 thereunder;
(k) in the event of the issuance of any stop order
suspending the effectiveness of a registration statement, or of any order
suspending or preventing the use of any related prospectus or suspending the
qualification of any Common Stock included in such registration statement for
sale in any jurisdiction, use all reasonable efforts promptly to obtain the
withdrawal of such order; and
(l) if the registration is an underwritten offering, use
all reasonable efforts to obtain a so-called "cold comfort" letter from the
Company's independent public accountants in customary form and covering such
matters of the type customarily covered by cold comfort letters.
5. OBLIGATIONS OF OPTIONEE. Whenever Optionee sells any Registrable
Securities pursuant to a Piggyback Registration, Optionee shall be obligated
to comply with the applicable provisions of the Securities Act, including the
prospectus delivery requirements thereunder, and any applicable state
securities or blue sky laws. Optionee shall furnish to the Company such
written information regarding Optionee and any distribution proposed by
Optionee as the Company may reasonably request in writing and as shall be
reasonably required in connection with any registration,
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qualification or compliance referred to in this Exhibit A and shall promptly
notify the Company of any changes in such information.
6. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. Optionee may not
participate in any registration hereunder which is underwritten unless
Optionee (a) agrees to sell his securities on the basis provided in any
underwriting arrangements approved by the Company, (b) as expeditiously as
possible notifies the Company of the occurrence of any event as a result of
which any prospectus contains an untrue statement of material fact or omits
to state a material fact required to be stated therein or necessary to make
the statements therein not misleading and (c) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements. The Company shall have the right to select the investment
banker(s) and manager(s) to administer an offering pursuant to a Piggyback
Registration.
7. CERTAIN DEFINITIONS. As used in this Exhibit, the following terms
shall have the following respective meanings:
"COMMISSION" shall mean the U.S. Securities and Exchange
Commission.
"EXCHANGE ACT" shall mean the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission thereunder,
all as the same shall be in effect from time to time.
"EXPENSES" shall mean all expenses incurred by the Company
in complying with Section 1 hereof, including without limitation, all
registration, qualification and filing fees, exchange listing fees, printing
expenses, escrow fees, fees and disbursements of counsel for the Company,
blue sky fees and expenses, and the expense of any special audits incident to
or required by any such registration; and all underwriting discounts, selling
commissions and stock transfer taxes applicable to the securities registered
by the Optionee, but excluding the costs and fees of any accountants,
attorneys or other experts retained personally by the Optionee.
"REGISTRABLE SECURITIES" means any Common Stock of the
Company issued or issuable upon exercise of options granted pursuant to the
Senior Executive Long Term Compensation Plan, or restricted stock awarded
pursuant to such Plan.
The terms "REGISTER," "REGISTERED" and "REGISTRATION" refer
to a registration effected by preparing and filing a registration statement
in compliance with the Securities Act.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended.
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Exhibit 10.5
FORM OF INDEMNIFICATION AGREEMENT
This Agreement is entered into this 17th day of May, 2000, by and
between Photogen Technologies, Inc. a Nevada corporation (the "Company"), and
______________________ ("Indemnitee").
WHEREAS, highly competent persons are becoming more reluctant to serve
corporations as directors or in other capacities unless they are provided with
adequate protection through insurance or adequate indemnification against
inordinate risks of claims and actions against them arising out of their service
to and activities on behalf of the corporation; and
WHEREAS, the Board of Directors believes the Company should act to
assure such persons that there will be increased certainty of such protection in
the future; and believes that such protection is consistent with Article VI of
the Bylaws and, in particular, Section 6 thereof, and Section 78.752 of the
Nevada General Corporation Law; and
WHEREAS, it is reasonable, prudent and necessary for the Company to
obligate itself by contract to indemnify such persons to the fullest extent
permitted by applicable law so that they will serve or continue to serve the
Company free from undue concern for litigation claims for damages arising out of
or related to the performance of such service; and
WHEREAS, Indemnitee is willing to serve or continue to serve as a
director of the Company and its subsidiaries with the understanding that the
Indemnitee shall be indemnified to the fullest extent permitted by applicable
law.
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Company and Indemnitee agree as follows:
ARTICLE I
DEFINITIONS
For the purposes of this Agreement, the following terms shall have the
meaning given here:
Section 1.1 "Board" means the Board of Directors of the Company.
Section 1.2 "Corporate Status" describes the status of a person who is
or was a director, officer, employee, agent or fiduciary of the Company or of
any other corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise which such person is or was serving at the express written
request of the Company.
<PAGE>
Section 1.3 "Disinterested Director" means a director of the Company
who is not and was not a party to the Proceeding in respect of which
indemnification is sought by Indemnitee.
Section 1.4 "Enterprise" means the Company and any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise of
which Indemnitee is or was serving at the express written request of the Company
as a director, officer, employee, agent or fiduciary.
Section 1.5 "Expenses" includes all reasonable attorneys' fees,
retainers, court costs, transcript costs, fees of experts, witness fees, travel
expenses, duplicating costs, printing and binding costs, telephone charges,
postage, delivery service fees, and all other disbursements or expenses of the
types customarily incurred in connection with prosecuting or defending (or
preparing to prosecute or defend) a Proceeding, investigating the matters at
issue in a Proceeding, or being or preparing to be a witness in a Proceeding.
Section 1.6 "Good Faith" means Indemnitee having acted in good faith
and in a manner Indemnitee reasonably believed to be in or not opposed to the
best interests of the Enterprise, and, with respect to any criminal Proceeding,
having had no reasonable cause to believe Indemnitee's conduct was unlawful.
Section 1.7 "Proceeding" includes any action, suit, arbitration,
alternate dispute resolution mechanism, investigation, administrative hearing or
any other actual, threatened or completed proceeding whether civil, criminal,
administrative or investigative, other than one initiated by Indemnitee. For
purposes of the foregoing sentence, a "Proceeding" shall not be deemed to have
been initiated by Indemnitee where Indemnitee seeks pursuant to Article VIII of
this Agreement to enforce Indemnitee's rights under this Agreement.
ARTICLE II
TERM OF AGREEMENT
This Agreement shall continue until and terminate upon the later of:
(i) six (6) years after the date that Indemnitee's Corporate Status shall have
ceased; or (ii) the final termination of all pending Proceedings in respect of
which Indemnitee is granted rights of indemnification or advancement of expenses
hereunder and of any proceeding commenced by Indemnitee regarding the
interpretation or enforcement of this Agreement.
ARTICLE III
SERVICES BY INDEMNITEE, NOTICE OF PROCEEDINGS
Section 3.1 SERVICES. Indemnitee agrees to serve as a Director of the
Company, and from time to time, in such capacity as a Director and/or Officer of
any other corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise as directed by the
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Board of Directors and agreed to by Indemnitee. Such service is subject to the
Bylaws and any written agreement between the Indemnitee and the Company or such
other entity.
Section 3.2 NOTICE OF PROCEEDING. Indemnitee agrees promptly to notify
the Company in writing upon being served with any summons, citation, subpoena,
complaint, indictment, information or other document relating to any Proceeding
or matter which may be subject to indemnification or advancement of Expenses
covered hereunder.
Section 3.3 COOPERATION. Indemnitee agrees to cooperate (and to cause
his representatives to cooperate) with the Company and its counsel in connection
with any Proceeding or other matter which may be subject to indemnification or
advancement of Expenses covered hereunder.
ARTICLE IV
INDEMNIFICATION
Section 4.1 IN GENERAL. The Company shall indemnify and advance
Expenses to Indemnitee in connection with any Proceeding as provided in this
Agreement and to the fullest extent permitted by applicable law in effect on the
date hereof and to such greater extent as applicable law may thereafter from
time to time permit.
Section 4.2 THIRD PARTY ACTIONS. If Indemnitee was or is a party or is
threatened to be made a party to any Proceeding (other than an action by or in
the right of the Company) by reason of his Corporate Status, or by reason of any
act or omission in any such capacity, the Company shall indemnify him against
any and all Expenses and liabilities of any type whatsoever (including, but not
limited to, judgments, fines, ERISA excise taxes or penalties, and amounts paid
in settlement) actually and reasonably incurred by or for him in connection with
the investigation, defense, settlement or appeal of such Proceeding or any
claim, issue or matter therein if he acted in Good Faith.
Section 4.3 DERIVATIVE ACTIONS. If Indemnitee was or is a party or is
threatened to be made a party to any Proceeding by or in the right of the
Company to procure a judgment in its favor by reason of his Corporate Status, or
by reason of any act or omission in any such capacity, the Company shall
indemnify him against any and all Expenses actually and reasonably incurred by
or for him in connection with the investigation, defense, settlement, or appeal
of such Proceeding if he acted in Good Faith; except that no indemnification
under this Section 4.3 shall be made in respect of any claim, issue or matter as
to which such person shall have been adjudged by a court of competent
jurisdiction, after exhaustion of all appeals therefrom, to be liable to the
Enterprise or for amounts paid in settlement to the Enterprise, unless and only
to the extent that the court in which the Proceeding was brought or other court
of competent jurisdiction determines upon application that in view of all the
circumstances of the case, the Indemnitee is fairly and reasonably entitled to
indemnity for such expenses as the court deems proper.
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Section 4.4 INDEMNIFICATION OF A PARTY WHO IS WHOLLY OR PARTLY
SUCCESSFUL. Notwithstanding any other provision of this Agreement, to the extent
that Indemnitee is, by reason of Indemnitee's Corporate Status, a party to and
is successful, on the merits or otherwise, in any Proceeding, Indemnitee shall
be indemnified to the maximum extent permitted by law, against any and all
Expenses and liabilities of any type whatsoever (including, but not limited to,
judgments, fines, ERISA excise taxes or penalties, and amounts paid in
settlement) actually and reasonably incurred by or for him in connection
therewith. If Indemnitee is not wholly successful in such Proceeding but is
successful, on the merits or otherwise, as to one or more but less than all
claims, issues or matters in such Proceeding, the Company shall indemnify
Indemnitee to the maximum extent permitted by law, against all Expenses and
liabilities of any type whatsoever (including, but not limited to, judgments,
penalties, and amounts paid in settlement) actually and reasonably incurred by
or for him in connection with each successfully resolved claim, issue or matter.
For purposes of this Section 4.4 and without limitation, the termination of any
claim, issue or matter in such a Proceeding by dismissal, with or without
prejudice, shall be deemed to be a successful result as to such claim, issue or
matter, so long as there has been no finding (either adjudicated or pursuant to
Article VI) that Indemnitee did not act in Good Faith.
Section 4.5 INDEMNIFICATION FOR EXPENSES OF A WITNESS. Notwithstanding
any other provision of this Agreement, to the extent that Indemnitee is, by
reason of Indemnitee's Corporate Status, a witness in any Proceeding, Indemnitee
shall be indemnified against all Expenses actually and reasonably incurred by or
for him in connection therewith.
ARTICLE V
ADVANCEMENT OF EXPENSES
Notwithstanding any provision to the contrary in Article VI, the
Company shall advance all reasonable Expenses which, by reason of Indemnitee's
Corporate Status, were incurred by or for him in connection with any proceeding
in advance of the final disposition thereof, within ten (10) business days after
the receipt by the Company of a statement or statements from Indemnitee
requesting such advance or advances. Such statement or statements shall
reasonably evidence the Expenses incurred by or for Indemnitee. Indemnitee
hereby agrees to repay any Expenses advanced hereunder if it shall ultimately be
determined that Indemnitee is not entitled to be indemnified against such
Expenses. Any advances and the undertaking to repay pursuant to this Article V
shall be unsecured and interest free.
ARTICLE VI
DETERMINATION OF RIGHT TO INDEMNIFICATION
Section 6.1 NO DETERMINATION NECESSARY WHEN INDEMNITEE WAS SUCCESSFUL.
To the extent Indemnitee has been successful on the merits or otherwise in
defense of any Proceeding referred to in Sections 4.2 or 4.3 of this Agreement
or in the defense of any claim, issue or matter
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<PAGE>
described therein, the Company shall indemnify Indemnitee against Expenses
actually and reasonably incurred by or for him in connection with the
investigation, defense, or appeal of such Proceeding.
Section 6.2 FORUM FOR DETERMINATION. Indemnitee shall be entitled to
select the forum in which the validity of the Company's claim under Section 6.2
hereof that Indemnitee is not entitled to indemnification will be heard from
among the following:
(a) A quorum of the Board consisting of Disinterested
Directors;
(b) The shareholders of the Company;
(c) Legal counsel selected by Indemnitee, and reasonably
approved by the Board, which counsel shall make such
determination in a written opinion; or
(d) A panel of three arbitrators, one of whom is selected
by the Company, another of whom is selected by
Indemnitee and the last of whom is selected by the
first two arbitrators so selected.
As soon as practicable, and in no event later than thirty (30) days after
written notice of Indemnitee's choice of forum pursuant to this Section 6.2, the
Company shall, at its own expense, submit to the selected forum in such manner
as Indemnitee or Indemnitee's counsel may reasonably request, its claim that
Indemnitee is not entitled to indemnification, and the Company shall act in the
utmost good faith to assure Indemnitee a complete opportunity to defend against
such claim.
Section 6.3 RIGHT TO APPEAL. Notwithstanding a determination by any
forum listed in Section 6.2 hereof that Indemnitee is not entitled to
indemnification with respect to a specific Proceeding, Indemnitee shall have the
right to apply to the court in which that Proceeding is or was pending, or any
other court of competent jurisdictions, for the purpose of enforcing
Indemnitee's right to indemnification pursuant to this Agreement.
Section 6.4 EXPENSES UNDER THIS AGREEMENT. Notwithstanding any other
provision in this Agreement to the contrary, the Company shall indemnify
Indemnitee against all expenses incurred by Indemnitee in connection with any
hearing or proceeding under this Article VI involving Indemnitee and against all
Expenses incurred by Indemnitee in connection with any other action between the
Company and Indemnitee involving the interpretation or enforcement of the rights
of Indemnitee under this Agreement, but only to the extent Indemnitee prevails
in any such action.
Section 6.5 THIRD PARTY DEFENDANT. Company hereby agrees that in the
event a claim is brought against Indemnitee in any Proceeding to which
Indemnitee would be entitled to
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<PAGE>
Indemnification under Articles IV and VI hereunder, and Indemnitee desires to
name Company as a third party defendant in any such Proceeding, Company will not
contest service of process or personal jurisdiction.
ARTICLE VII
PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS
Section 7.1 BURDEN OF PROOF. In making a determination with respect to
entitlement to indemnification hereunder, the person, persons or entity making
such determination shall presume that Indemnitee is entitled to indemnification
under this Agreement. The Company shall have the burden of proof to overcome
that presumption by a preponderance of the evidence.
Section 7.2 EFFECT OF OTHER PROCEEDINGS. The termination of any
Proceeding or of any claim, issue or matter therein, by judgment, order,
settlement or conviction, or upon a plea of nolo contendere or its equivalent,
shall not of itself adversely affect the right of Indemnitee to indemnification
or create a presumption that Indemnitee did not act in Good Faith.
Section 7.3 RELIANCE AS SAFE HARBOR. For purposes of any determination
of Good Faith, Indemnitee shall be deemed to have acted in Good Faith if
Indemnitee's action is based on the records or books of account of the Company,
including financial statements, or on information supplied to Indemnitee by the
officers of the Company in the course of their duties, or on the advice of legal
counsel for the Company or on information or records given or reports made to
the Company by an independent certified public accountant or by an appraiser or
other expert selected with reasonable care by the Company. The provisions of
this Section 7.3 shall not be deemed to be exclusive or to limit in any way the
other circumstances in which the Indemnitee may be deemed to have met the
applicable standard of conduct set forth in this Agreement.
ARTICLE VIII
NON-EXCLUSIVITY, INSURANCE, SUBROGATION
Section 8.1 NON-EXCLUSIVITY. The rights of indemnification and to
receive advancement of Expenses as provided by this Agreement shall not be
deemed exclusive of any other rights to which Indemnitee may at any time be
entitled under applicable law, the Articles of Incorporation, the By-Laws, any
agreement, a vote of shareholders or a resolution of directors, directors and
officers insurance, or otherwise. No amendment, alteration, rescission or
replacement of this Agreement or any provision hereof shall be effective as to
Indemnitee with respect to any action taken or omitted by such Indemnitee in
Indemnitee's Corporate Status prior to such amendment, alteration, rescission or
replacement.
Section 8.2 INSURANCE. The Company may maintain an insurance policy or
policies against liability arising out of this Agreement or otherwise.
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<PAGE>
Section 8.3 SUBROGATION. In the event of any payment under this
Agreement, the Company shall be subrogated to the extent of such payment to all
of the rights of recovery of Indemnitee, who shall execute all papers required
and take all action necessary to secure such rights, including execution of such
documents as are necessary to enable the Company to bring suit to enforce such
rights.
Section 8.4 NO DUPLICATIVE PAYMENT. Company shall not be liable under
this Agreement to make any payment of amounts otherwise indemnifiable hereunder
if and to the extent that Indemnitee has otherwise actually received such
payment under any insurance policy, contract, agreement or otherwise.
ARTICLE IX
GENERAL PROVISIONS
Section 9.1 SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon the Company and its successors and assigns and shall inure to the benefit
of Indemnitee and Indemnitee's heirs, executors and administrators.
Section 9.2 SEVERABILITY. If any provision or provisions of this
Agreement shall be held to be invalid, illegal or unenforceable for any reason
whatsoever, the validity, legality and enforceability of the remaining
provisions of this Agreement (including without limitation, each portion of any
Section of this Agreement containing any such provision held to be invalid,
illegal or unenforceable, that is not itself invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby; and, to the fullest extent
possible, the provisions of this Agreement (including, without limitation, each
portion of any Section of this Agreement containing any such provision held to
be invalid, illegal or unenforceable, that is not itself invalid, illegal or
unenforceable) shall be construed so as to give effect as much as possible to
the intent manifested by the provision held invalid, illegal or unenforceable.
Section 9.3 COUNTERPARTS; HEADINGS. This Agreement may be executed in
one or more counterparts, each of which shall for all purposes be deemed to be
an original but all of which together shall constitute one and the same
Agreement. Only one such counterpart signed by the party against whom
enforceability is sought needs to be produced to evidence the existence of this
Agreement. The headings of the paragraphs of this Agreement are inserted for
convenience only and shall not be deemed to constitute part of this Agreement or
to affect the construction thereof.
Section 9.4 MODIFICATION AND WAIVER. No supplement, modification or
amendment of this Agreement shall be binding unless executed in writing by both
of the parties hereto. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provisions hereof
(whether or not similar) nor shall such waiver constitute a continuing waiver.
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<PAGE>
Section 9.5 NOTICES. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if (i) delivered by hand and receipted for by the party to whom said
notice or other communication shall have been directed, (ii) mailed by certified
or registered mail with postage prepaid, on the third business day after the
date of which it is so mailed, or (iii) mailed by overnight courier with postage
prepaid, on the first day after the date of which it is so mailed:
If to Indemnitee: as shown with Indemnitee's signature below
If to Company: Photogen Technologies, Inc.
7327 Oak Ridge Highway
Knoxville, TN 37931
Attn: President
or to such other address as may have been furnished to Indemnitee by the Company
or to the Company by Indemnitee, as the case may be.
Section 9.6 GOVERNING LAW. The parties agree that this Agreement shall
be governed by, and construed and enforced in accordance with, the laws of the
State of Nevada without application of the conflict of laws principles thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
COMPANY:
PHOTOGEN TECHNOLOGIES, INC.
By:
--------------------------
-------------------, President
INDEMNITEE:
---------------------------
--------------------[name]
Notice Address:
------------------------
------------------------
------------------------
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<PAGE>
PHOTOGEN TECHNOLOGIES ANNOUNCES NEW CEO
FOLLOWING ANNUAL SHAREHOLDERS MEETING IN CHICAGO
KNOXVILLE, TENN. MAY 18, 2000 - Photogen Technologies, Inc. (NASDAQ: PHGN) today
announced that it has named Taffy J. Williams, Ph.D., president and CEO of the
biotechnology company.
Dr. Williams joins the company with more than 20 years' diverse business and
science-related experience in the areas of corporate management; biological,
physical and analytical research; project management; finance; and organization
building.
Most recently, Dr. Williams was president of InKine Pharmaceutical Company
(NASDAQ: INKP). Prior to that, he was CEO of Panax.
"I am excited to join a company that has several promising products in the
pipeline - all in markets that have been largely overlooked in terms of medical
advancements," said Dr. Williams. "As CEO and president, I will be in a
tremendous position to facilitate the delivery of these products to the
commercial market where they can benefit patients."
In addition to executive management skills, the ability to grow companies and
new business development experience, Dr. Williams is the author of four patents,
one invention registration, 10 patent applications and 53 published articles. He
also has been the recipient of several prestigious awards, including a
postdoctoral fellowship from the National Institutes of Health, "Most
Significant Scientific Publication" awards from the Naval Medical Research
Institute in 1985 and 1986, and the Civil Service Special Achievement Award for
restructuring research activities in 1986.
Dr. Williams holds a bachelor's degree in chemistry from the University of Notre
Dame, a Ph.D. in biochemistry from the University of South Carolina, and did
postdoctoral training at the University of South Carolina and the University of
Michigan.
Interim president and CEO Timothy C. Scott, Ph.D. returns to his position as
chief operating officer and senior scientist of the company.
At the annual meeting, the shareholders approved amending the company's articles
of incorporation to increase the size of the Board to seven and approved a new
long term incentive compensation plan covering 2,000,000 shares of stock. The
shareholders also elected Ted Tannebaum, Gene Golub, Robert Weinstein, M.D. and
Eric Wachter, Ph.D. to the Board; and the Board subsequently appointed Dr.
Williams and Aidan King as new directors.
About Photogen
Photogen Technologies, Inc. is a development-stage company focused on creating
therapeutic and diagnostic products based on its proprietary multi-photon and
other related technologies.
<PAGE>
The company has discovered new methods for using energy from lasers, X-rays or
other sources to activate photoactive agents within tissue sufficient to produce
a range of beneficial therapeutic and diagnostic outcomes. These technologies
involve methods, materials and devices that may be used to produce light or
other energy and photoactive agents and to destroy diseased cells, remove tissue
or identify and diagnose disease. Photogen has U.S. patents and additional
pending applications in the U.S. and elsewhere for certain of its proprietary
technology.
Statements in this release that are not strictly historical are
"forward-looking" statements that are made pursuant to the safe harbor provision
of the Private Securities Litigation Reform Act of 1995. Forward-looking
statements involve known and unknown risks, which may cause the company's actual
results in the future to differ materially from expected results. These risks
and uncertainties include: the ability of the company to develop a product and
obtain regulatory approval for its use; the ability of the company to
successfully market and sell any products and equipment; the company's ability
to manufacture products in sufficient quantities; the company's ability to
maintain intellectual property protection for its proprietary products, to
defend its existing intellectual property rights from challenges by third
parties, and to avoid infringing intellectual property rights of third parties;
unforeseen operating risks; the company's ability to secure collaborative
agreements with third parties for various research, development, manufacturing,
marketing and other functions; competition; risks associated with the dependence
on manufacturers of the company's proposed products; the availability of capital
to finance planned activities; and the extent to which the clinicians performing
the procedures are able to obtain third-party reimbursement. These risks are
qualified in their entirety by cautionary language and risk factors set forth in
the company's filings with the Securities and Exchange Commission.
Media Contacts: Joan Murray or Hilary Kaye at Hilary Kaye Associates (714)
426-0444 (PST) or [email protected].
Investor Relations Contact: Jonathan Fassberg or Isabel Cordova at The Trout
Group (212) 477-9007 (EST) or [email protected].
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