EXHIBIT 9.1
VOTING AGREEMENT
This Voting Agreement ("Agreement") is entered into as of the 16th
day of May, 1997 by and among Xxxx X. Xxxxxxx, Ph.D. ("Xxxxxxx"), Xxxxx Xxxx,
Ph.D. ("Xxxx"), Xxxxxx X. Xxxxxx, Ph.D. ("Xxxxxx"), Xxx Xxxxx, Ph.D.
("Xxxxx"), Xxxx Xxxxxx ("Xxxxxx"), Xxxxxxxx Xxxxxxxxx ("Xxxxxxxxx"), Xxxxxx X.
Xxxxxxxxx, M.D. ("Xxxxxxxxx"), Xxxxxx X. Xxxxxx ("Xxxxxx"), and Xxxxxx X.
Xxxxxxxxx ("Xxxxxxxxx") (individually a "Stockholder" and collectively the
"Stockholders"), and joined into by Photogen Technologies, Inc. for purposes
of Sections 1(c) and 1(d) herein. Wachter, Dees, Xxxxxx, Xxxxx and Xxxxxx
are sometimes collectively referred to herein as the "Tennessee
Stockholders;" Tannebaum, Weinstein, Xxxxxx and Xxxxxxxxx are sometimes
collectively referred to herein as the "Chicago Stockholders;" and the
Chicago Stockholders or Tennessee Stockholders are each sometimes referred to
herein as a "Stockholder."
RECITALS
The Stockholders collectively own as of the date of this Agreement
approximately 96% of the issued and outstanding shares of common stock, $.001
par value per share (the "Common Stock"), of Photogen Technologies, Inc., a
Nevada corporation formerly known as M T Financial Group, Inc. (the
"Company"). The Company owns all of the issued and outstanding shares of
Photogen, Inc., a Tennessee corporation ("Subsidiary").
The shares of Common Stock together with all other capital stock or
securities of the Company, whether authorized or outstanding as of the date
hereof or at any time hereafter, are collectively referred to as the "Shares."
AGREEMENT
Now, therefore, in consideration of the mutual promises herein and
other consideration, the receipt and adequacy of which is acknowledged, the
parties hereby agree as follows:
1. VOTING AGREEMENT.
(a) The agreement in Section 1(b) shall be deemed to constitute a
voting agreement among the Stockholders pursuant to Section 78.365(3) of the
Nevada General Corporation Law. The agreement in Section 1(c) shall be
deemed to constitute an agreement among the parties hereto pursuant to
Section 00-00-000 of the Tennessee Business Corporation Act. As used in this
Agreement, the determination of a "Beneficial Owner" or "Beneficial
Ownership" shall be governed by Regulation 13d-3 under the Securities
Exchange Act of 1934, as amended. All percentages of stock ownership in this
Agreement shall be calculated on a fully-diluted basis.
(b) At each annual meeting of the stockholders of the Company, or
at each special meeting of the stockholders of the Company, and at any other
time at which stockholders of the Company will have the right to or will vote
for or render consent in writing, then and in each event, each Stockholder
hereby agrees to vote or cause to be voted all Shares of which he is the
Beneficial Owner in favor of the following actions to the extent any such
actions are subject to such vote or consent:
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(i) To amend, alter, modify or repeal the Articles of
Incorporation or the By-Laws of the Company only in accordance with the
unanimous recommendation of all of the Directors of the Company (whether or
not any Board Action is required by law);
(ii) To fix and maintain the number of directors of the
Company at five (5);
(iii) To cause and maintain the election to the Board of
Directors of the Company of the following: (A) four (4) persons nominated
by the holders of 80% of the aggregate Shares Beneficially Owned by the
Tennessee Stockholders; and (B) one (1) person nominated by the holders of
80% of the aggregate Shares Beneficially Owned by the Chicago Stockholders;
(iv) To remove from the Board of Directors of the Company any
director nominated by the Tennessee or Chicago Stockholders, as applicable
pursuant to paragraph 1(b)(iii) at the request of the Stockholders
nominating such director; and
(v) To fix and maintain the Executive Committee of the Board
of Directors of the Company to consist of three (3) directors, two (2) of
whom shall be selected by the directors nominated by the Tennessee
Stockholders and one (1) of whom shall be selected by the director
nominated by the Chicago Stockholders.
(c) Company is agreeing for the benefit of the other parties hereto
to act in its capacity as stockholder of Subsidiary to the actions set forth
in this paragraph (c). At each annual meeting of the stockholder of the
Subsidiary, or at each special meeting of the stockholder of the Subsidiary,
and at any other time at which stockholder of the Subsidiary will have the
right to or will vote for or render consent in writing, then and in each
event, the Company (as the sole stockholder of the Subsidiary) hereby agrees
to vote or cause to be voted all voting securities of the Subsidiary of which
it is the Beneficial Owner in favor of the following actions to the extent
any such actions are subject to such vote or consent:
(i) To amend, alter, modify or repeal the Articles of
Incorporation or the By-Laws of the Subsidiary only in accordance with the
unanimous recommendation of all of the Directors of the Subsidiary,
(whether or not any Board Action is required by law);
(ii) To fix and maintain the number of directors of the
Subsidiary at five (5);
(iii) To cause and maintain the election to the Board of
Directors of the Subsidiary of the following: (A) four (4) persons
nominated by the directors of the Company who were selected by the
Tennessee Stockholders; and (B) one (1) person nominated by the director of
the Company who was selected by the Chicago Stockholders;
(iv) To remove from the Board of Directors of the Subsidiary
any director nominated by the Tennessee or Chicago Stockholders, as
applicable, pursuant to paragraph 1(c)(iii) at the request of the Company
directors or director, as applicable, nominating such Subsidiary director;
and
(v) To fix and maintain the Executive Committee of the Board
of Directors of the Subsidiary to consist of three (3) directors, two (2)
of whom shall be selected by the
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directors nominated by the Tennessee Stockholders and one (1) of whom shall
be selected by the director nominated by the director of the Company who
was selected by the Chicago Stockholders.
(d) The Company or Subsidiary, as applicable, shall provide the
Stockholders entitled to nominate directors hereunder prior notice of any
intended mailing of notice to Stockholders for a meeting at which any of the
actions subject to paragraphs 1(b) or 1(c) are to be acted upon. Thereafter,
Stockholders (or Company directors with respect to nominations of Subsidiary
directors) entitled to nominate directors hereunder shall notify the Company
or the Subsidiary (as applicable) in writing, prior to such mailing, of the
person nominated by him or it to be a director; provided, that if such
Stockholder (or Company directors) fails to give notice to the Company or
Subsidiary (as applicable), it shall be deemed that the nominee of such party
for such meeting is the person then serving as director pursuant to such
Stockholders' (or Company directors') previous nomination.
2. NECESSARY ACTS; ADDITIONAL PARTIES. Each of the parties hereto
agrees that he or it will do (or cause to be done) any act or thing and will
execute (or cause to be executed) any and all instruments necessary and/or
proper to make effective the provisions of this Agreement. Each Stockholder
represents and warrants to, and agrees with, each other party hereto that (a)
any transferee holding Shares over which such Stockholder remains the
Beneficial Owner shall execute and deliver a counterpart of this Agreement
and shall be bound by the provisions hereof as if such transferee was an
original party hereto; and (b) such Stockholder shall provide each other
party hereto true and complete information concerning the Beneficial
Ownership of Shares in the hands of transferees.
3. LEGEND ON STOCK CERTIFICATE. Each certificate representing
Shares covered by this Agreement is subject to and shall bear the restrictive
legend set forth below:
The voting of shares of stock evidenced by this certificate is subject to a
Voting Agreement dated as of the 16th day of May, 1997. Copies of the
Agreement may be obtained from the Secretary of the Company at no cost by
written request of the holder of record of this certificate.
4. GENERAL PROVISIONS.
(a) This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their legal representatives, heirs and legatees.
(b) The section headings in this Agreement are inserted for
convenience of reference only, and shall not affect the construction or
interpretation of this Agreement.
(c) The failure at any time to enforce any of the provisions of
this Agreement shall not be construed as a waiver of such provisions and
shall not affect the right of any party thereafter to enforce each and every
provision of this Agreement in accordance with its terms.
(d) This Agreement shall be governed by and construed in accordance
with the laws of the State of Illinois without giving effect to conflict of
laws principles thereof, except to the extent the Nevada General Corporation
Law and the Tennessee Business Corporation Law govern portions hereof.
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(e) This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original and shall be enforceable
against the party executing the same, and all of which together shall
constitute a single Agreement. In making proof of this Agreement, it shall
not be necessary to produce or account for more than one such counterpart.
(f) Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be held to be invalid by a court
of competent jurisdiction, the remaining provisions shall remain in full
force and effect and the provision held invalid shall be modified to the
extent necessary to be valid and shall be enforced as modified.
(g) Any notice to be served under this Agreement shall be in
writing and shall be deemed to be delivered or given upon receipt if
delivered personally, by overnight courier or by telecopier, or two days
after mailing by registered mail, return receipt requested, addressed as
follows:
IF TO THE COMPANY:
Photogen Technologies, Inc.
To its then current address
Attention: Xxxx Xxxxxx
IF TO ANY STOCKHOLDER:
To such Stockholder's address on file in the
stock records of the Company
or to such other place as a party may specify in writing, delivered in
accordance with the provisions of this subsection.
(h) This Agreement constitutes the full and entire understanding
and agreement of the parties with regard to the subject hereof, and
supersedes any prior agreement or understanding, written or oral, with
respect to such subject matter. No party shall be liable or bound by any
representations, warranties or agreements, or any other information or
materials previously delivered, whether written or oral, regarding such
subject matter.
5. AMENDMENT; TERMINATION. This Agreement may be modified or
amended in any respect upon the written approval of the holders of 90% of the
Shares, and as so modified or amended, this shall continue to bind all
Stockholders regardless of whether they consented to such modification or
amendment. This Agreement shall terminate upon the earliest to occur of the
following: (i) the written approval of the termination executed by holders
of 90% or more of the Shares; (ii) the Stockholders collectively cease to own
an aggregate of 20% of the issued and outstanding voting securities of the
Company; (iii) the merger of the Company with another company in which the
Company is not the survivor or the sale of all or substantially all of the
Company's assets; or (vii) the 15th anniversary of the date of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first written above.
/s/ X. X. Xxxxxxx
_________________________________________
Xxxx X. Xxxxxxx, Ph.D.
/s/ Xxxxx Xxxx
_________________________________________
Xxxxx Xxxx, Ph.D.
/s/ Xxxxxx X. Xxxxxx
_________________________________________
Xxxxxx X. Xxxxxx, Ph.D.
/s/ Xxx X. Xxxxx
_________________________________________
Xxx Xxxxx, Ph.D.
/s/ Xxxx Xxxxxx
_________________________________________
Xxxx Xxxxxx
/s/ Xxxxxxxx Xxxxxxxxx
_________________________________________
Xxxxxxxx Xxxxxxxxx
/s/ Xxxxxx Xxxxxxxxx
_________________________________________
Xxxxxx X. Xxxxxxxxx, M.D.
/s/ Xxxxxx Xxxxxx
_________________________________________
Xxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxxxxx
_________________________________________
Xxxxxx X. Xxxxxxxxx
Joined into by for purposes of Sections 1(c) and 1(d) herein.
Photogen Technologies, Inc.
By:/s/ Xxxx Xxxxxx
______________________________________
Its: President
_____________________________________
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