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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 8, 2001
REGISTRATION NO. 333-46394
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
PHOTOGEN TECHNOLOGIES, INC.
(Exact name of Registrant as specified in its charter)
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<S> <C>
NEVADA 36-4010347
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification Number)
organization)
</TABLE>
7327 OAK RIDGE HIGHWAY, SUITE B
KNOXVILLE, TN 37931
(865) 769-4011
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
TAFFY J. WILLIAMS, PH.D.
PRESIDENT AND CHIEF EXECUTIVE OFFICER
PHOTOGEN TECHNOLOGIES, INC.
7327 OAK RIDGE HIGHWAY, SUITE B
KNOXVILLE, TN 37931
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
--------------------------
COPIES TO:
THEODORE W. GRIPPO
GRIPPO & ELDEN
227 WEST MONROE, STE. 3600
CHICAGO, ILLINOIS 60606
(312) 704-7700
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Approximate date of commencement of proposed sale to the public: FROM TIME
TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
--------------------------
CALCULATION OF REGISTRATION FEE
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TITLE OF EACH CLASS PROPOSED MAXIMUM AGGREGATE AMOUNT OF
OF SECURITIES TO BE REGISTERED OFFERING PRICE (1) REGISTRATION FEE (1)(2)
<S> <C> <C>
Common Stock $0.001 par value............................ $40,000,000 $10,560
</TABLE>
(1) The maximum aggregate offering price of the common stock registered
hereunder will not exceed $40,000,000. Pursuant to Rule 457(o) under the
Securities Act, the registration fee is calculated on the aggregate maximum
offering price of the common stock, and the table does not specify
information about the amount of shares to be registered or the proposed
maximum offering price per share.
(2) Previously paid.
--------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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SUBJECT TO COMPLETION, DATED JANUARY 8, 2001
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
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PROSPECTUS
$40,000,000
PHOTOGEN TECHNOLOGIES, INC.
COMMON STOCK
We have entered into an agreement with Rochelle S.A. in which Rochelle will
act under certain circumstances as our exclusive agent to sell shares of our
common stock in this offering on a best efforts basis. Rochelle is not a
registered broker/dealer in the United States and will only seek investors
outside the United States. We will pay Rochelle a fee of 5% of the gross
proceeds of any sales of common stock it places in this offering and have paid a
$35,000 non-accountable expense reimbursement. See "Plan of Distribution,"
below.
Our common stock is listed on the Nasdaq SmallCap Market under the symbol
"PHGN". On January 4, 2001, the last reported sale price for the common stock on
the Nasdaq SmallCap Market was $2.375 per share.
SEE THE SECTION ENTITLED "RISK FACTORS" BEGINNING AT PAGE 4 TO READ ABOUT
CERTAIN FACTORS YOU SHOULD CONSIDER BEFORE BUYING SHARES OF THE COMMON STOCK.
------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is January 8, 2001.
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TABLE OF CONTENTS
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PAGE
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THE COMPANY................................................. 3
RISK FACTORS................................................ 4
ABOUT THIS PROSPECTUS....................................... 10
NOTE REGARDING FORWARD-LOOKING STATEMENTS................... 10
WHERE YOU CAN FIND MORE INFORMATION......................... 11
USE OF PROCEEDS............................................. 12
DIVIDEND POLICY............................................. 12
PLAN OF DISTRIBUTION........................................ 12
LEGAL MATTERS............................................... 14
EXPERTS..................................................... 15
DEALER PROSPECTUS DELIVERY OBLIGATION....................... 15
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THE COMPANY
Photogen Technologies, Inc., its wholly-owned subsidiary Photogen, Inc., and
its 80.1% owned subsidiary Sentigen Ltd., are collectively referred to as
"Photogen," the "company," "we," or "us."
We are an emerging, development-stage biotechnology company focused on
developing minimally invasive products for the treatment and diagnosis of
cancer, pre-cancerous conditions and other diseases. We have assembled a
platform of core technologies which we believe will support multiple products
and applications. We have not completed development of any diagnostic or
therapeutic product or process at this time and have no revenue from operations.
We have discovered new methods and apparatus for using energy from lasers,
X-rays or other sources to activate energy-sensitive compounds within tissue to
produce a range of beneficial therapeutic and diagnostic outcomes. These
discoveries include methods, materials and devices that are used to produce
light or other energy, and development of compounds that react with energy all
for the purpose of destroying diseased cells, removing tissue or identifying and
diagnosing disease. Compounds that react with energy are called "photoactive
agents."
We are pursuing development of our three core technologies:
- We are developing technologies and compounds to treat tumors confined to
specific areas within the body and for treatment of diseased tissue on
the surface of the body. We named one of these compounds "PH-10." PH-10
is a photoactive agent that accumulates in diseased tissue and absorbs
X-rays and light energy, thereby destroying the tissue.
- We are the exclusive licensee to a special group of proprietary materials
(and we own related methods) that precisely locate and diagnose the
spread of cancer when the materials are injected into a patient's
lymphatic system. These materials are very small particles designed to
travel through the lymphatic system and are called "nanoparticulates."
Evaluating lymph nodes is called "lymphography."
- Our proprietary laser technology uses ultrashort, pulsed bursts of long
wavelength light to activate photoactive agents and other compounds that
react with light to destroy diseased tissue. This technology can also be
used to create images of tissue for diagnostic purposes.
Our proposed products have the potential to replace numerous surgical and
similar invasive treatments and diagnostics, reduce side effects (including
those resulting from chemotherapy), improve treatment efficacy, and lower the
overall cost of care for oncology and other applications.
Our core technologies are proprietary, and are either protected by issued
U.S. and foreign patents or are subject to patent applications pending in the
U.S. and foreign jurisdictions. As discussed below (in the section titled "Risk
Factors"), disputes about intellectual property are common in our industry, and
we are routinely involved in discussions with others about the ownership of
intellectual property or whether an item of intellectual property interferes
with or infringes the rights of another person or entity.
Photogen Technologies, Inc. is a Nevada corporation that is the successor by
merger to Bemax Corporation, a California corporation incorporated in 1984 to
develop and market dot matrix computer printer products. Bemax Corporation
ceased operations in 1988. In 1994, Theodore Tannebaum, Robert J.
Weinstein, M.D. and Stuart P. Levine acquired control of Bemax Corporation by
acquiring approximately 97% of its common stock for an aggregate amount of
$1,300,000; and, in March 1995, Bemax completed a merger with its wholly-owned
Nevada subsidiary named M T Financial Group, Inc. (organized in 1994).
M T Financial was the surviving corporation and Bemax Corporation thereby
changed its state of incorporation from California to Nevada. From 1988 through
May 1997, we and our predecessors had no business operations and our activities
were limited to evaluating possible acquisition candidates. In May 1997,
M T Financial acquired Photogen, Inc., then owned by five
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persons, through a subsidiary merger. As a result, Photogen, Inc. became a
wholly-owned subsidiary of M T Financial, M T Financial changed its name to
Photogen Technologies, Inc. and Dr. Weinstein, Mr. Levine and Thomas Rosenberg
invested additional funds in the company so that it began operations with
approximately $3,000,000.
Our principal executive offices are located at 7327 Oak Ridge Highway,
Knoxville, Tennessee 37931. The telephone number is (865) 769-4011.
RISK FACTORS
You should carefully consider the risks described below before making an
investment decision. Additional risks and uncertainties not presently known to
us or that we currently deem immaterial may also impair our business operations.
If any of the following risks actually occur, our business, results of
operations or cash flows could be adversely affected. In that case, the trading
price of our common stock could decline, and you may lose all or part of your
investment. The price of our common stock has been and is likely to continue to
be volatile.
This prospectus also contains and incorporates by reference forward-looking
statements that involve risks and uncertainties (see the section titled "Note
Regarding Forward-Looking Statements," below). Our actual results could differ
materially from those anticipated in the forward-looking statements as a result
of the risks described below and elsewhere in this prospectus.
WE ARE A DEVELOPMENT STAGE COMPANY, WE HAVE CONDUCTED ONLY LIMITED STUDIES ON
OUR TECHNOLOGIES AND WE DO NOT HAVE ANY PRODUCTS OR REVENUES FROM SALES.
Our company and our technologies are in early stages of development. We
began our business as a biotechnology company in 1997. We have not generated
revenues from sales or operations, and we do not expect to generate
sufficient revenues to enable us to be profitable for at least several
years.
Our proposed technologies and products generally must complete
preclinical tests in animals and three phases of tests (also called clinical
trials) in humans before we can market them for use. Use of our technology
has been limited primarily to laboratory experiments or animal testing and
only one compound has completed Phase I clinical trials in humans. We have
therefore not yet conducted substantive studies on the effectiveness of most
of our compounds or devices on human subjects. The drug and device products
we currently contemplate developing will require costly and time consuming
research and development, preclinical and clinical testing and regulatory
approval before they can be manufactured and sold. We may not be able to
develop our technology into marketable products or develop our technology so
it is effective for diagnosis or treatment of human diseases. As a result of
changing economic considerations, market, clinical or regulatory conditions,
or clinical trial results, we may shift our focus or determine not to
continue one or more of the projects we are currently pursuing.
WE HAVE A HISTORY OF LOSSES AND WE MAY NOT ACHIEVE OR MAINTAIN PROFITABILITY IN
THE FUTURE OR PAY CASH DIVIDENDS.
We have incurred losses since the beginning of our operations. As of
September 30, 2000, we incurred total losses of approximately $16,266,879.
We expect our losses to increase in the future as our financial resources
are used for research and development, preclinical and clinical testing,
regulatory activities, manufacturing, marketing and other related expenses.
We may not be able to achieve or maintain profitability in the future. We
have never declared or paid any cash dividends to stockholders, and do not
expect to do so in the foreseeable future.
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WE MUST RAISE ADDITIONAL FINANCING IN THE FUTURE AND OUR INABILITY TO DO SO
COULD PREVENT US FROM IMPLEMENTING OUR BUSINESS PLAN.
Under the present circumstances, we have sufficient capital to conduct
operations for over twelve months (depending on the pace of our spending for
preclinical and clinical testing and other commitments, which, to an extent,
we can adjust to preserve cash). We will need substantial additional
financing for our research, clinical testing, product development and
marketing programs. We cannot accurately estimate the amount of additional
financing required; however, the amount could be an additional $30 - 50
million or more. Depending on market conditions, we will attempt to raise
additional capital through stock and debt offerings, collaborative
relationships and other available sources. Additional funds may not be
available on acceptable terms, if at all, and existing stockholders may be
diluted as a result of those offerings.
WE MAY HAVE TO ISSUE ADDITIONAL SHARES OF OUR COMMON STOCK TO ELAN WHICH WOULD
DILUTE SHAREHOLDERS' OWNERSHIP.
If in the first closing under this offering we sell common stock at a
price less than $13 per share, we must issue additional shares to an
affiliate of Elan Corporation plc, with whom we are engaged in a joint
venture, so that the weighted average price for Elan's common stock equals
the effective price in the first closing. If we were to sell $40,000,000 of
common stock in the first closing of this offering at a weighted average
price of $2.375 per share, the last reported sale price for the Common Stock
on the Nasdaq SmallCap Market on January 4, 2001, we would be required to
issue an additional 2,064,778 shares of common stock to Elan for no
additional consideration, representing approximately 5.5% of our current
outstanding common stock.
OUR PROPOSED PRODUCTS ARE SUBJECT TO EXTENSIVE TESTING AND GOVERNMENT APPROVAL,
AND WE MAY NOT OBTAIN THE APPROVALS NECESSARY TO SELL OUR PROPOSED PRODUCTS.
Most of our proposed drug and device products have not begun, and none
has completed, the Food and Drug Administration's extensive approval
process. This must be completed before our proposed products can be sold in
the United States. Requirements for FDA approval of a product include
preclinical and clinical testing for effective use and safety in animals and
humans, and that testing can be extremely costly. The time frame necessary
to perform these tasks for any individual product is long and uncertain, and
we may encounter problems or delays which we cannot predict at this time.
Even if testing is successful, our proposed products may not demonstrate
sufficient effectiveness or safety to warrant approval by the FDA or other
regulatory authorities. Any regulatory approval may not cover the clinical
symptoms or indications that we may seek. Marketing our products in other
countries will require seeking and obtaining regulatory approvals comparable
to those required in the United States.
IF WE DO NOT OBTAIN AND MAINTAIN PATENT OR OTHER PROTECTION OF OUR CORE
TECHNOLOGIES (NAMELY PH-10, OUR LYMPHOGRAPHY MATERIALS AND METHODS, AND OUR
LASER TECHNOLOGIES), WE MAY HAVE DIFFICULTY DEVELOPING OR COMMERCIALIZING
PRODUCTS USING THESE TECHNOLOGIES.
Our success depends in part on our ability to obtain, assert and defend
our patents, protect trade secrets and operate without infringing the
intellectual property of others. Among the important risks in this area are
that:
- Our patent applications may not result in issued patents. Moreover, any
issued patents may not provide us with adequate protection of our
intellectual property or competitive advantages.
- Various countries limit the subject matter that can be patented and limit
the ability of a patent owner to enforce patents in the medical field.
This may limit our ability to obtain or utilize those patents.
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- Existing or future patents or patent applications (and the products or
methods they cover) of our competitors (or others, such as research
institutions or universities) may interfere, invalidate, conflict with or
infringe our patents or patent applications. Similarly, the use of the
methods or technologies contained in our patents, patent applications and
other intellectual property may conflict with or infringe the rights of
others.
- If an advance is made that qualifies as a joint invention, the joint
inventor or his or her employer may have rights in the invention. We are
currently in litigation with our former Medical Director concerning his
claims of joint inventorship of some of our PH-10 inventions.
We will be able to protect our proprietary rights from unauthorized use
by third parties only to the extent that these rights are covered by valid
and enforceable patents or effectively maintained as trade secrets. We own
five patents in the U.S., and five other patents in foreign countries
including Australia, Singapore and New Zealand. We have filed patent
applications under the Patent Cooperation Treaty covering a number of
foreign countries including countries in Europe and South America. The
European Patent Office regional phases of the Patent Cooperation Treaty
applications have been entered into along with the national phases for
applications in Australia, Canada, China, India, Israel, Korea, New Zealand,
Singapore, Taiwan, and certain other countries. These patents and the patent
applications relate to laser and X-ray technology, photoactive agents and
methods, and methods for performing lymphography. We have sub-licensed a
group of proprietary compounds known as nanoparticulates from Massachusetts
General Hospital and Nycomed Imaging AS.
The patent position of biotechnology companies involves complex legal
and factual questions, and therefore we cannot assure the enforceability of
these patents. Litigation over patents and other intellectual property
rights occurs frequently in our industry, and there is a risk that we may
not prevail if we become involved in that litigation. Further, interference
may occur over the rights to certain inventions, and there is a risk that we
may not prevail in an interference. Those disputes can be expensive and time
consuming, even if we win. Intellectual property disputes are often settled
through licensing arrangements that could be costly to us. In any
intellectual property litigation, it is possible that licenses necessary to
settle the dispute would not be available, or that we would not be able to
redesign our technologies to avoid any claimed infringement.
Confidentiality agreements covering our intellectual property may be
violated and we may not have adequate remedies for any violation. Our
inventions may be reverse engineered by our competitors, and third parties
may challenge our existing patents and seek to hold them invalid or
unenforceable. Also, our intellectual property may in other ways become
known or be independently discovered by competitors.
To the extent we use intellectual property through licenses or
sub-licenses (as is the case for some of our lymphography technology), our
rights are subject to us performing the terms of the license or sub-license
agreement with third parties. Our rights are also subject to the actions of
third parties we may not be able to control, such as our sub-licensor
complying with the terms of its license with the patent owner and the patent
owner maintaining the patent.
Where intellectual property results from a research project supported by
U.S. Government funding, the Government has limited rights to use the
intellectual property without paying us a royalty.
WE ARE HIGHLY DEPENDENT UPON A SMALL NUMBER OF EMPLOYEES AND CONSULTANTS WHO
PROVIDE SCIENTIFIC AND MANAGEMENT EXPERTISE, AND IT MAY BE DIFFICULT TO
IMPLEMENT OUR BUSINESS DEVELOPMENT PLANS WITHOUT THIS EXPERTISE.
These individuals have entered into employment or consulting agreements,
confidentiality and/or non-competition agreements with us. We could suffer
competitive disadvantage, loss of
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intellectual property rights or other material adverse effects on our
business and results of operations if any employee or consultant violates or
terminates these agreements or terminates their association with us. Our
growth and future success also depends upon the continued involvement and
contribution from these individuals, as well as our ability to attract and
retain highly qualified personnel now and in the future.
We currently employ four senior scientists (Drs. Dees, Fisher, Scott and
Wachter) and three senior executive officers (including Dr. Williams (our
CEO) and Mr. Boveroux (our CFO)). We also have retained consultants to
advise us in regulatory affairs and product development matters. If we lost
the services of our executive officers or outside consultants, we would
experience a delay in the implementation of our business plan until we
arranged for another individual or firm to fulfill the role. The loss of one
of our scientists could cause delay in implementing our business plan and
also jeopardize development of new technologies. Because our scientists'
talents are in some ways unique, it is impossible to predict whether a
suitable replacement could be obtained.
WE HAVE TO RELY ON THIRD PARTIES AND COLLABORATIVE RELATIONSHIPS FOR THE
MANUFACTURING, CLINICAL TESTING AND MARKETING FOR OUR PROPOSED PRODUCTS, AND IT
MAY BE DIFFICULT TO IMPLEMENT OUR BUSINESS DEVELOPMENT PLANS WITHOUT THESE
COLLABORATIONS.
We are currently involved in the following collaborations or joint ventures:
- A joint venture with affiliates of Elan Corporation, plc. called Sentigen
Ltd., is working to develop and commercialize lymphography materials.
- We are involved in an exclusive distribution agreement with
Coherent, Inc. in which Coherent has agreed to market and sell our first
product, PulseView(TM) software and related computer interface. We have
no revenues from sales of this product and we expect any future revenues
to be minimal.
- We have had and expect to continue in the future to have a variety of
research agreements with universities and other research institutions to
investigate specific protocols.
We must continue to enter into collaborative relationships with third
parties for additional research and development, preclinical and clinical
testing, manufacturing, marketing and distribution of our proposed products.
We are also dependent on third parties for the supply of lasers and X-ray
devices and similar hardware, and for supplies of photoactive agents and
nanoparticulates. We have several research and supply agreements with third
parties. However, we may not be able to negotiate other acceptable
collaborative and supply arrangements in the future.
Collaborative relationships may limit or restrict our operations or may
not result in an adequate supply of necessary resources. Our collaborative
partners could also pursue alternative technologies as a means of developing
or marketing products for the diseases targeted by our collaborative
programs. If a third party we are collaborating with fails to perform under
its agreement or fails to meet regulatory standards, this could delay or
prematurely terminate clinical testing of our proposed products.
OUR POTENTIAL MARKETS ARE EXTREMELY COMPETITIVE, AND MANY OF OUR COMPETITORS
HAVE GREATER RESOURCES AND HAVE PRODUCTS THAT ARE IN MORE ADVANCED STAGES OF
DEVELOPMENT.
We face substantial competition from competitors with greater financial,
technical and human resources and with greater experience in developing
products, conducting preclinical or clinical testing, obtaining regulatory
approvals, manufacturing and marketing. Our competitors include the
following firms in the field of using light energy to treat and diagnose
disease: Miravant Medical Technologies, Inc., Pharmacyclics, Inc. and Dusa
Pharmaceuticals. There are also numerous other companies developing other
technologies to treat and diagnose cancer and other diseases. Examples of
the technologies from those other companies are drug or genetic treatments,
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procedures that use sound waves and procedures that destroy diseased tissue
using heat. Some of these firms have drugs or devices that have completed or
are in advanced stages of clinical trials and regulatory approvals.
Others may develop technologies and obtain patent protection that could
render our technologies or products obsolete or less competitive or our
patents invalid or unenforceable. Due to the inherent risk of failure
associated with the testing, development and production of new and
innovative technologies, our technologies and products may be found to be
ineffective, have unanticipated limitations or otherwise be unsuccessful in
the marketplace. Also, although we believe our estimates of the possible
size of markets for our potential products are based on information we
consider reliable (including data from the American Cancer Society and
similar sources in the public domain), that data or our analysis of the data
could prove incorrect.
CHANGES IN HEALTH CARE REIMBURSEMENT POLICIES OR LEGISLATION MAY MAKE IT
DIFFICULT FOR PATIENTS TO USE OR RECEIVE REIMBURSEMENT FOR USING OUR PRODUCTS,
WHICH COULD REDUCE OUR REVENUES.
Our success will depend, in part, on the extent to which health
insurers, managed care entities and similar organizations provide coverage
or reimbursement for using the medical procedures and devices we plan to
develop. These third-party payors are increasingly challenging the price of
medical procedures and services and establishing guidelines that may limit
physicians' selections of innovative products and procedures. We also cannot
predict the effect of any current or future legislation or regulations
relating to third-party coverage or reimbursement on our business. We may
not be able to achieve market acceptance of our proposed products or
maintain price levels sufficient to achieve or maintain any profits on our
proposed products if adequate reimbursement coverage is not available.
A SMALL GROUP OF STOCKHOLDERS CONTROLS PHOTOGEN, WHICH MAY MAKE IT DIFFICULT FOR
STOCKHOLDERS WHO ARE NOT IN THAT GROUP TO INFLUENCE MANAGEMENT.
A small group of our officers, directors and others control
approximately 75% of our outstanding common stock. Several of our principal
stockholders are also parties to a Voting Agreement concerning the election
of certain designees to the Board of Directors of Photogen
Technologies, Inc. and Photogen, Inc. This group of stockholders can
significantly influence Photogen and the direction of our business and
affairs. This concentration of ownership may delay or prevent a change in
control of Photogen, and may also result in a small supply of shares
available for purchase in the public securities markets. These factors may
affect the market and the market price for our common stock in ways that do
not reflect the intrinsic value of the stock.
THE PRICE AND TRADING VOLUME OF OUR COMMON STOCK FLUCTUATES SIGNIFICANTLY, WHICH
MAY MAKE IT DIFFICULT FOR US OR A STOCKHOLDER TO SELL OUR COMMON STOCK AT A
SUITABLE PRICE AND MAY CAUSE DILUTION FOR EXISTING STOCKHOLDERS WHEN WE ISSUE
ADDITIONAL SHARES.
During the period from January 1, 2000 through January 4, 2001, our
stock price ranged from $1.125 to $19.50 per share. Daily trading volume
ranged from 100 shares to 300,623 shares during that period.
The following factors may have an impact on the price of our stock:
- Announcements by us or others regarding scientific discoveries,
technological innovations, commercial products, patents or proprietary
rights;
- The progress of preclinical or clinical testing;
- Changes in government regulation;
- Public concern about the safety of devices or drugs;
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- Limited coverage by securities analysts;
- The occurrence of any of the risk factors described in this section;
- Sales of large blocks of stock by an individual or institution;
- Changes in our financial performance from period to period; securities
analysts' reports; and general market conditions.
OUR COMMON STOCK COULD BE DELISTED FROM THE NASDAQ SMALLCAP MARKET WHICH WOULD
MAKE TRADING IN OUR STOCK MORE DIFFICULT.
Since November 1999, our common stock has been quoted in the Nasdaq
SmallCap Market. Our shares could be delisted if we fail to meet the listing
requirements of the Nasdaq SmallCap Market, which would force us to list our
shares on the OTC Bulletin Board or some other quotation medium, such as
pink sheets, depending upon our ability to meet the specific listing
requirements of those quotation systems. As a result, an investor might find
it more difficult to dispose of, or to obtain accurate price quotations for,
our shares. Delisting might also reduce the visibility, liquidity, and price
of our common stock. If our common stock were delisted from the Nasdaq
SmallCap Market and were not traded on another national securities exchange,
we could become subject to penny stock regulations that impose additional
sales practice disclosure and market making requirements on broker/dealers
who sell or make a market in our stock. The rules of the SEC generally
define "penny stock" to be common stock that has a market price of less than
$5.00 per share. If our stock became subject to penny stock regulations, it
would adversely affect the ability and willingness of broker/dealers who
sell or make a market in our common stock and of investors to purchase or
sell our stock in the secondary market.
IF INSIDERS SELL SUBSTANTIAL AMOUNTS OF OUR COMMON STOCK IN THE MARKET, THE
PRICE COULD FALL OR MAKE IT MORE COSTLY FOR US TO RAISE CAPITAL.
As of December 21, 2000 we had 37,383,386 shares of common stock
outstanding. Of theses shares, approximately 8,347,687 shares were eligible
for sale in the public market free of restrictions under the Securities Act
of 1933, as amended, including restrictions under Rule 144. Approximately
2,204,174 shares are currently subject to agreements requiring us to permit
the holders of the shares, under certain circumstances, to join a public
offering of our stock or to demand that we register their shares. This
offering does not include any common stock subject to the right of any
shareholder to join in this registration. Approximately 22,558,435 shares
held by Photogen's five founders are subject to a lock-up agreement with
Theodore Tannebaum (Chairman of the Board), prohibiting sale of those shares
without Mr. Tannebaum's consent until August 9, 2001.
As of September 30, 2000 we had reserved 9,486,780 shares of common
stock for future issuance upon grants of options, or exercise or conversion
of outstanding options and warrants and convertible securities. If these
options and warrants are all issued and exercised, you may experience
significant dilution in the book value and earnings per share of your common
stock.
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission utilizing a "shelf" registration process.
Using the shelf registration process means:
- we may offer for sale to investors (and resales by them) up to
$40,000,000 of common stock from time to time;
- we will circulate a prospectus supplement each time we plan to issue the
common stock; and
- the prospectus supplement will inform you about the specific terms of
that offering and also may add, update or change information contained in
this prospectus.
This prospectus provides you with a general description of the common stock
we may offer. Any statement that we make in this prospectus will be modified or
superseded by any inconsistent statement made by us in a prospectus supplement.
Before you invest, you should carefully read both this prospectus and any
prospectus supplement together with additional information described under the
heading "Where You Can Find More Information."
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This document contains a number of forward-looking statements regarding our
business and operations. Statements in this document that are not historical
facts are forward-looking statements. Such forward-looking statements include
those relating to:
- our current business and product development plans,
- our future business and product development plans,
- the timing and results of regulatory approval for proposed products, and
- projected capital needs, working capital, liquidity, revenues, interest
costs and income.
Statements containing terms such as "believes," "does not believe," "plans,"
"expects," "intends," "estimates," "anticipates" and other phrases of similar
meaning are considered to imply uncertainty and are forward-looking statements.
Forward looking statements involve known and unknown risks and uncertainties
which may cause our actual results in future periods to differ materially from
what is currently anticipated. We make cautionary statements in certain sections
of this prospectus, including under "Risk Factors." You should read these
cautionary statements as being applicable to all related forward-looking
statements wherever they appear in this prospectus, in the materials referred to
in this prospectus, in the materials incorporated by reference into this
prospectus, or in our press releases. In light of these risks, uncertainties and
assumptions, the forward-looking events discussed in this prospectus, prospectus
supplement or other documents incorporated by reference might not occur. No
forward-looking statement is a guarantee of future performance and you should
not place undue reliance on any forward-looking statement.
10
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. Our filings are available to the public over the
Internet at the SEC's web site at http://www.sec.gov. You may also read and copy
any document we file at the SEC's Public Reference Rooms in Washington, D.C.,
New York, New York and Chicago, Illinois. The Public Reference Room in
Washington D.C. is located at 450 Fifth Street, N.W. Please call the SEC at
1-800-SEC-0330 for further information on the Public Reference Rooms.
The SEC allows us to "incorporate by reference" the information we file with
it, which means that we can disclose important information to you by referring
you to those documents. The information incorporated by reference is an
important part of this prospectus, and information that we file later with the
SEC will automatically update and supersede this information. We incorporate by
reference the documents listed below and any future filings made with the SEC
under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934
until we complete this offering and so long as resales by such investors are
deemed to be sales by an underwriter:
- Annual Report on Form 10-KSB/A for the fiscal year ended December 31,
1999 filed on January 8, 2001;
- Proxy Statement on Schedule 14A for the 2000 Annual Meeting of
Stockholders filed on April 19, 2000;
- Quarterly Reports on Form 10-Q and 10-Q/A for the quarter ended
March 31, 2000 filed on May 15, 2000; the quarter ended June 30, 2000
filed on November 27, 2000; and the quarter ended September 30, 2000
filed on January 8, 2001; and
- The description of our common stock contained in our Registration
Statement on Form 10, filed on December 24, 1997, including any amendment
or report filed for the purpose of updating that description.
Although this prospectus covers only our common stock, you may find information
about our two series of preferred stock in the following filings:
- The description of our Series A Convertible/Exchangeable Preferred Stock
contained in our quarterly report for the quarter ended September 30,
1999 on Form 10-QSB and Exhibit 3.5 to that Form 10-QSB filed on
November 15, 1999; and
- The description of our Series B Convertible Preferred Stock contained in
our annual report for the fiscal year ended December 31, 1999 on
Form 10-KSB, filed on March 29, 2000 and Exhibit 3 to our current report
on Form 8-K filed February 18, 2000.
You may request a copy of these filings at no cost. Please direct your
written or oral requests to:
Dan Hamilton, Manager--Finance and Administration
Photogen Technologies, Inc.
7327 Oak Ridge Highway
Knoxville, TN 37931
(865) 769-4011
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information. We are not making an
offer of the common stock in any state where the offer is not permitted. You
should not assume that the information in this prospectus or any prospectus
supplement is accurate as of any date other than the date on the front page of
those documents.
11
<PAGE>
USE OF PROCEEDS
Unless otherwise indicated in the applicable prospectus supplement, we plan
to use the net proceeds from the sale of common stock for general corporate
purposes, including capital expenditures, clinical trials and to meet working
capital needs. We expect from time to time to evaluate the acquisition or
license of businesses, technologies or products for which a portion of the net
proceeds may be used; however, we have no present plan or commitments for any
acquisition or license.
Pending such uses, we will invest the net proceeds in interest-bearing
United States Government securities (other than cash used for current
expenditures). Each time we sell the common stock, we will provide a prospectus
supplement that will contain information about how we intend to use the net
proceeds from the common stock sold at that time.
DIVIDEND POLICY
We have not declared or paid cash dividends on our common stock. We
currently intend to retain all future earnings to fund the operation of our
business and, therefore, we do not anticipate paying dividends on our common
stock in the foreseeable future. Future cash dividends, if any, will be
determined by the Board of Directors. We do however pay an in-kind dividend of
additional shares on our preferred stock as follows:
SERIES A CONVERTIBLE/EXCHANGEABLE PREFERRED STOCK: Each share of
Series A Preferred is entitled to a mandatory payment-in-kind dividend
payable in additional shares of Series A Preferred at a rate of 7% (I.E.,
0.07 additional shares of Series A Preferred). The payment-in-kind dividend
is cumulative, compounds on a semi-annual basis and is payable twice a year,
beginning April 2000. At the appropriate times, we have and will continue to
declare and pay the in-kind dividend to our Series A Preferred stockholder.
SERIES B CONVERTIBLE PREFERRED STOCK: Each share of Series B Preferred
is entitled to a mandatory payment-in-kind dividend payable in additional
shares of Series B Preferred, at a rate of 6% (I.E., 0.06 additional shares
of Series B Preferred). Dividends will be payable on January 15 of each
year, beginning January 15, 2001 and will accrue from the date of such
share's issuance. We may not make dividends or distributions on common stock
unless we also pay a dividend on the Series B Preferred equal to the amount
a holder of Series B Preferred would have received on conversion of
Series B Preferred into common stock.
PLAN OF DISTRIBUTION
We have engaged Rochelle S.A. to act on a best efforts basis as our
exclusive placement agent for this offering until September 18, 2001 or the
funding of the sale of $40,000,000 of our common stock. Rochelle may be deemed
to be an underwriter under the Securities Act of 1933, as amended. Rochelle will
seek to identify investors outside the United States who may wish to purchase
our common stock from time to time at a fixed price and on other specific terms
to be negotiated between us and the investors, but Rochelle is not obligated to
purchase any minimum amount of shares or find investors to purchase any minimum
amount of shares in this offering. Rochelle is not committed to purchase any of
our common stock for its own account regardless of whether it successfully
identifies others to purchase any of our common stock.
We agreed to pay Rochelle a cash placement fee equal to 5% of the gross
proceeds from each sale of our securities. We also paid Rochelle a $35,000
non-accountable expense allowance. We anticipate that we will incur
approximately $65,000 of additional expenses in this offering.
Rochelle will become a non-exclusive placement agent if Rochelle does not
provide us with one or more investors willing to purchase a total of at least
$5,000,000 of our common stock in this offering within five months after the
effective date of this registration statement, and a minimum of $1,000,000
12
<PAGE>
per month of our common stock each month thereafter during the term of the
agreement. If Rochelle becomes a non-exclusive placement agent, we have the
right to either terminate our agreement with Rochelle or to solicit other
investors to purchase the balance of the unsold common stock under this
registration statement. If we seek additional investors, Rochelle has a right of
first refusal for one year after the conclusion of this offering to provide
additional financing to us. If we terminate our agreement with Rochelle before
the funding of $40,000,000 or before September 18, 2001 (other than because
Rochelle breached the agreement or we are entitled to terminate it), we must pay
Rochelle a $150,000 break-up fee. Additionally, if, during the 24 months after
termination of the Rochelle agreement, we sell securities in any private
financing to investors who made an investment under the Rochelle agreement, we
must pay Rochelle 5% of the gross proceeds of those sales.
We have also agreed to provide Rochelle with customary underwriter's
indemnification against certain liabilities, including liabilities under the
Securities Act.
Since Rochelle is not a registered broker/dealer under United States laws or
in any state, Rochelle has agreed that it will only act as a placement agent
regarding the common stock in jurisdictions outside the United States and will
only approach institutional or similar investors who are not U.S. citizens or
U.S. residents abroad and act in compliance with applicable securities and other
laws. Any issuance of common stock to these non-U.S. investors and the material
terms of the transaction will be discussed in a prospectus supplement.
The sale of common stock to an investor will be on terms acceptable to us,
Rochelle and the investor. The purchase agreement between us and the investor
will include the following agreements:
- Resales of common stock by an investor in the United States, its
territories and possessions must be made in compliance with applicable
United States securities laws.
- The investor must use a registered broker/dealer and we will file a
post-effective amendment to the registration statement for resales of the
common stock if the investor is an underwriter under the Securities Act
with respect to the common stock, or if the investor sells common stock
through an underwriter. The post-effective amendment to the registration
statement will include an appropriate prospectus for use in connection
with those resales. If resales are an "at the market" distribution, they
must be made in compliance with Rule 415(a)(4) under the Securities Act.
We will require an opinion of counsel confirming whether the investor may
be deemed to be an underwriter.
If Rochelle is no longer an exclusive placement agent, we may offer the
common stock directly to purchasers, to or through underwriters, through dealers
or agents, or through a combination of those methods, subject to Rochelle's
right of first refusal.
If we use underwriters in an offering of the common stock, we will execute
an underwriting agreement with the underwriters and will list the name of each
underwriter and the terms of the transaction (including any underwriting
discounts and other terms constituting compensation of the underwriters and any
dealers) in a prospectus supplement. If we use an underwriting syndicate, we
will list the managing underwriter(s) on the cover of a prospectus supplement.
The underwriters would acquire common stock for their own accounts and may
resell it from time to time, including in negotiated transactions, at a fixed
public offering price or at varying prices determined at the time of sale. Any
public offering price and any discounts or concessions allowed or reallowed or
paid to dealers may be changed from time to time.
If we use dealers in an offering of the common stock, we will sell the
common stock to the dealers as principals. The dealers then may resell such
shares of common stock to the public at varying prices which they determine at
the time of resale. We will list the names of the dealers and the terms of the
transaction in a prospectus supplement.
13
<PAGE>
If we use agents in an offering of the common stock, we will list the names
of the agents and the terms of the agency in a prospectus supplement. Unless
otherwise indicated in a prospectus supplement, the agents will act on a
best-efforts basis for the period of their appointment.
Dealers and agents named in a prospectus supplement may be underwriters (as
defined in Securities Act) of the common stock described in that prospectus
supplement. Underwriters, dealers and agents may be entitled to indemnification
from us for certain liabilities (including liabilities under the Securities Act)
under underwriting or other agreements. We will describe the terms of any
indemnification provisions in a prospectus supplement.
We may solicit offers to purchase the common stock from, and sell the common
stock directly to, institutional or other investors who may be deemed to be
underwriters under the Securities Act if they engage in resales of their common
stock. The terms of any offer will be set forth in a prospectus supplement. To
the extent not otherwise exempt from registration under applicable state
securities laws, those transactions would be sold by registered broker/dealers
and we will make necessary blue sky filings to facilitate those transactions.
Certain underwriters, dealers or agents and their associates may engage in
transactions with, and perform services for, us in the ordinary course of
business.
If so indicated in a prospectus supplement, we will authorize underwriters
or other persons acting as our agents to solicit offers by institutional
investors to purchase our common stock pursuant to contracts providing for
payment and delivery on a future date. We may enter into contracts with
commercial and savings banks, insurance companies, pension funds, investment
companies, educational and charitable institutions and other institutional
investors. The obligations of any institutional investor will be subject to the
condition that its purchase of our common stock will not be illegal at the time
of delivery. The underwriters and other agents will not be responsible for the
validity or performance of contracts.
To facilitate an offering of a series of the common stock, certain persons
participating in the offering may engage in transactions that stabilize,
maintain or otherwise affect the price of our common stock. This may include
over-allotments of the common stock. Over-allotments involve the sale by persons
participating in the offering of more common stock than we have sold to them. In
those circumstances, these persons would cover over-allotments by purchasing our
common stock in the open market or by exercising their over-allotment options.
In addition, such persons may stabilize or maintain the price of our common
stock by bidding for or purchasing our common stock in the open market or by
imposing penalty bids, whereby selling concessions allowed to dealers
participating in the offering may be reclaimed if the common stock they sell is
repurchased in connection with stabilization transactions. The effect of these
transactions may be to stabilize or maintain the market price of our common
stock at a level above that which might otherwise prevail in the open market.
These transactions, if commenced, may discontinue at any time.
Any variance from these underwriting terms will be disclosed in a prospectus
supplement.
LEGAL MATTERS
The validity of the issuance of common stock will be passed upon for the
Company by Grippo & Elden, 227 West Monroe, Suite 3600, Chicago, Illinois 60606.
As of the date of this prospectus, partners of Grippo & Elden, who are
representing us in this offering, beneficially own 37,000 shares of common stock
and 3,554 shares of Series B Convertible Preferred Stock, which are currently
convertible into 4,264.8 shares of common stock.
14
<PAGE>
EXPERTS
The financial statements incorporated by reference in this prospectus have
been audited by BDO Seidman, LLP, independent certified public accountants, to
the extent and for the periods set forth in their report incorporated into this
prospectus by reference, and are incorporated into this prospectus in reliance
upon such report given upon the authority of that firm as experts in auditing
and accounting.
The consolidated financial statements included in Photogen
Technologies, Inc.'s Annual Report on Form 10-KSB for the year ended
December 31, 1999, have been audited by BDO Seidman, LLP, independent auditors,
as set forth in their report thereon included in that Form 10-KSB and
incorporated in this prospectus by reference. Those consolidated financial
statements are incorporated in this prospectus by reference in reliance upon
that report given upon the authority of BDO Seidman, LLP as experts in
accounting and auditing.
WE HAVE NOT AUTHORIZED ANY DEALER, SALESPERSON OR ANY OTHER PERSON TO GIVE
ANY INFORMATION OR TO REPRESENT ANYTHING NOT CONTAINED IN THIS PROSPECTUS. YOU
MUST NOT RELY ON ANY UNAUTHORIZED INFORMATION. THIS PROSPECTUS DOES NOT OFFER TO
SELL OR SEEK AN OFFER TO BUY ANY SHARES IN ANY JURISDICTION WHERE IT IS
UNLAWFUL. THE INFORMATION CONTAINED IN THIS PROSPECTUS IS CORRECT ONLY AS OF THE
DATE OF THIS PROSPECTUS, REGARDLESS OF THE TIME OF THE DELIVERY OF THIS
PROSPECTUS OR ANY SALE OF THE SHARES.
------------------------
Until , all dealers that effect transaction in these securities,
whether or not participating in this offering, may be required to deliver a
prospectus. This is in addition to the dealers' obligation to deliver a
prospectus when acting as underwriters and with respect to their unsold
allotments or subscriptions.
15
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth expenses payable by the Registrant in
connection with this Prospectus dated January 8, 2001. All of the amounts shown
are estimates except the SEC registration fee.
AMOUNT TO BE PAID
------------------------
<TABLE>
<S> <C>
SEC registration fee........................................ $ 10,560
Legal fees and expenses..................................... 30,000
Blue Sky fees and expenses, if applicable................... 10,000
Accounting fees and expenses................................ 10,000
Placement agent non-accountable expense reimbursement....... 35,000
Miscellaneous expenses...................................... 4,440
Total....................................................... $100,000
</TABLE>
------------------------
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 78.7502 of the Nevada General Corporation Law authorizes a
corporation to indemnify its directors, officers, employees or other agents in
terms sufficiently broad to permit indemnification (including reimbursement for
expenses incurred) under certain circumstances for liabilities arising under the
Securities Act. Our Articles of Incorporation and Bylaws provide indemnification
of directors and officers to the maximum extent permitted by the Nevada General
Corporation Law. In addition, Registrant has entered into Indemnification
Agreements with its directors.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
--------------------- ------------------------------------------------------------
<C> <S>
1.1 Placement Agent Agreement with Rochelle S.A.*
1.2 Amendment No. 1 to the Placement Agent Agreement.*
5.1 Opinion of Grippo & Elden
23.1 Consent of BDO Seidman, LLP, Independent Auditors
23.2 Consent of Counsel (included in Exhibit 5.1)
</TABLE>
* Previously filed.
II-1
<PAGE>
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination
of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the
matter has
II-2
<PAGE>
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
(d) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining liability under the Securities Act of 1933,
the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Amendment
No. 2 to the Form S-3 Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Knoxville, State of
Tennessee, on January 8, 2001.
PHOTOGEN TECHNOLOGIES, INC.
By: /s/ TAFFY J. WILLIAMS
------------------------------------------------------------------
Taffy J. Williams, Ph.D.
CHIEF EXECUTIVE OFFICER,
PRESIDENT AND DIRECTOR
II-4
<PAGE>
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 2 to the Form S-3 Registration Statement has been signed below by the
following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ TAFFY J. WILLIAMS President, Chief Executive
--------------------------------- Officer and Director January 8, 2001
Taffy J. Williams, Ph.D.
/s/ THEODORE TANNEBAUM*
--------------------------------- Chairman of the Board January 8, 2001
Theodore Tannebaum
/s/ BROOKS BOVEROUX Senior Vice President - Finance,
--------------------------------- Chief Financial Officer (Principal January 8, 2001
Brooks Boveroux Financial and Accounting Officer)
/s/ ERIC WACHTER* Vice President, Director
--------------------------------- and Secretary January 8, 2001
Eric Wachter
/s/ ROBERT J. WEINSTEIN, M.D.*
--------------------------------- Director January 8, 2001
Robert J. Weinstein, M.D.
/s/ LESTER H. MCKEEVER, JR.*
--------------------------------- Director January 8, 2001
Lester H. McKeever, Jr.
/s/ GENE GOLUB*
--------------------------------- Director January 8, 2001
Gene Golub
/s/ AIDAN KING*
--------------------------------- Director January 8, 2001
Aidan King
</TABLE>
<TABLE>
<S> <C> <C> <C>
*By: /s/ TAFFY J. WILLIAMS
--------------------------------------
Taffy J. Williams, Ph.D.
Attorney-in-fact pursuant to powers of attorney
included in Form S-3 Registration Statement (File
No. 333-46394) as filed on September 22, 2000
</TABLE>
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<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------ -----------------------
<C> <S> <C>
1.1 Placement Agent Agreement with Rochelle S.A.*
1.2 Amendment No. 1 to Placement Agent Agreement*
5.1 Opinion of Grippo & Elden
23.1 Consent of BDO Seidman, LLP, Independent Auditors
23.2 Consent of Counsel (included in Exhibit 5.1)
</TABLE>
* Previously filed.
II-6
