EXHIBIT 2
AMENDED AND RESTATED VOTING AGREEMENT
This Amended and Restated Voting Agreement ("Agreement") is entered into
as of the 17th day of June, 1998, by and among Xxxx X. Xxxxxxx, Ph.D.
("Xxxxxxx"), Xxxxx Xxxx, Ph.D. ("Xxxx"), Xxxxxx X. Xxxxxx, Ph.D. ("Xxxxxx"),
Xxx Xxxxx, Ph.D. (individually and as General Partner of Xxxxx Family
Investment Limited Partnership, a Delaware limited partnership, "Xxxxx"),
Xxxx Xxxxxx ("Xxxxxx"), and Xxxxxx X. Xxxxxxxxx, M.D. (individually, and as a
General Partner of W.F. Investments Enterprises, Limited Partnership, a
Georgia Limited partnership, "Xxxxxxxxx") (individually, each a "Stockholder"
and collectively the "Stockholders"), and joined into by Photogen
Technologies, Inc. for purposes of Sections 1(c) and 1(d) herein. Wachter,
Dees, Xxxxxx, Xxxxx and Xxxxxx are sometimes collectively referred to herein
as the "Tennessee Stockholders;" Xxxxxxxxx is sometimes referred to herein as
the "Chicago Stockholder;" and the Chicago Stockholder or Tennessee
Stockholders are each sometimes referred to herein as a "Stockholder."
RECITALS
The Stockholders collectively own as of the date of this Agreement
approximately 75% of the issued and outstanding shares of common stock, $.001
par value per share (the "Common Stock"), of Photogen Technologies, Inc., a
Nevada corporation (the "Company"). The Company owns all of the issued and
outstanding shares of Photogen, Inc., a Tennessee corporation ("Subsidiary").
The shares of Common Stock together with all other capital stock or
securities of the Company, whether authorized or outstanding as of the date
hereof or at any time hereafter, are collectively referred to as the "Shares."
The Stockholders and Xxxxxxxx Xxxxxxxxx ("Xxxxxxxxx"), Xxxxxx X. Xxxxxx
("Xxxxxx") and Xxxxxx X. Xxxxxxxxx ("Xxxxxxxxx") were parties to that certain
Voting Agreement dated May 16, 1997 (the "Original Agreement"). The parties
desire to amend the Original Agreement to reflect an increase in the number
of directors of the Company, to release the Shares of Xxxxxxxxx, Xxxxxx and
Xxxxxxxxx from the provisions of this Agreement, and to restate the Original
Agreement as set forth herein.
AGREEMENT
Now, therefore, in consideration of the mutual promises herein and other
consideration, the receipt and adequacy of which is acknowledged, the parties
hereby agree as follows:
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 definition and determination of a "Beneficial Owner" or
"Beneficial Ownership" shall be governed by Regulation 13d-3 under the
Securities Exchange Act of 1934, as amended. All percentages of stock
ownership in this Agreement shall be calculated on a fully-diluted basis.
(b) At each annual meeting of the stockholders of the Company, or at
each special meeting of the stockholders of the Company, and at any other
time at which stockholders of the Company will have the right to or will vote
for or render consent in writing, then and in each event, each Stockholder
hereby agrees to vote or cause to be voted all Shares of which he is the
Beneficial Owner in favor of the following actions to the extent any such
actions are subject to such vote or consent:
(i) To amend, alter, modify or repeal the Articles of
Incorporation or the By-Laws of the Company only in accordance with the
unanimous recommendation of all of the Directors of the Company
(whether or not any Board action is required by law);
(ii) To fix and maintain the number of directors of the Company
at six (6);
(iii) To cause and maintain the election to the Board of
Directors of the Company of the following: (A) four (4) persons
nominated by the holders of 80% of the aggregate Shares Beneficially
Owned by the Tennessee Stockholders; and (B) one (1) person nominated
by the holder(s) of 80% of the aggregate Shares Beneficially Owned by
the Chicago Stockholder;
(iv) To remove from the Board of Directors of the Company any
director nominated by the Tennessee or Chicago Stockholder, as
applicable pursuant to paragraph 1(b)(iii) at the request of the
Stockholder(s) nominating such director; and
(v) To fix and maintain the Executive Committee of the Board
of Directors of the Company to consist of three (3) directors, two (2)
of whom shall be selected by the directors nominated by the Tennessee
Stockholders and one (1) of whom shall be selected by the director
nominated by the Chicago Stockholder.
(c) Company is agreeing for the benefit of the other parties hereto to
act in its capacity as stockholder of Subsidiary to the actions set forth in
this paragraph (c). At each annual meeting of the stockholder of the
Subsidiary, or at each special meeting of the stockholder of the Subsidiary,
and at any other time at which stockholder of the Subsidiary will have the
right to or will vote for or render consent in writing, then and in each
event, the Company (as the sole stockholder
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of the Subsidiary) hereby agrees to vote or cause to be voted all voting
securities of the Subsidiary of which it is the Beneficial Owner in favor of
the following actions to the extent any such actions are subject to such vote
or consent:
(i) To amend, alter, modify or repeal the Articles of
Incorporation or the By-Laws of the Subsidiary only in accordance with
the unanimous recommendation of all of the Directors of the Subsidiary
(whether or not any Board action is required by law);
(ii) To fix and maintain the number of directors of the
Subsidiary at six (6);
(iii) To cause and maintain the election to the Board of
Directors of the Subsidiary of the following: (A) four (4) persons
nominated by the directors of the Company who were selected by the
Tennessee Stockholders; and (B) one (1) person nominated by the
director of the Company who was selected by the Chicago Stockholder;
(vi) To remove from the Board of Directors of the Subsidiary any
director nominated by the Tennessee or Chicago Stockholder, as
applicable, pursuant to paragraph 1(c)(iii) at the request of the
Company directors or director, as applicable, nominating such
Subsidiary director; and
(v) To fix and maintain the Executive Committee of the Board of
Directors of the Subsidiary to consist of three (3) directors, two (2)
of whom shall be selected by the directors nominated by the Tennessee
Stockholders and one (1) of whom shall be selected by the director
nominated by the director of the Company who was selected by the
Chicago Stockholder.
(d) The Company or Subsidiary, as applicable, shall provide the
Stockholders entitled to nominate directors hereunder prior notice of any
intended mailing of notice to Stockholders for a meeting at which any of the
actions subject to paragraphs 1(b) or 1(c) are to be acted upon. Thereafter,
Stockholders (or Company directors with respect to nominations of Subsidiary
directors) entitled to nominate directors hereunder shall notify the Company
or the Subsidiary (as applicable) in writing, prior to such mailing, of the
person nominated by him or it to be a director; provided, that if such
Stockholder (or Company directors) fails to give notice to the Company or
Subsidiary (as applicable), it shall be deemed that the nominee of such party
for such meeting is the person then serving as director pursuant to such
Stockholders' (or Company directors') previous nomination.
2. NECESSARY ACTS; ADDITIONAL PARTIES. Each of the parties hereto
agrees that he or it will do (or cause to be done) any act or thing and will
execute (or cause to be executed) any and all instruments necessary and/or
proper to make effective the provisions of this Agreement. Each Stockholder
represents and warrants to, and agrees with, each other party hereto that (a)
any transferee holding Shares over which such Stockholder remains the
Beneficial Owner shall execute
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and deliver a counterpart of this Agreement and shall be bound by the
provisions hereof as if such transferee was an original party hereto; and (b)
such Stockholder shall provide each other party hereto true and complete
information concerning the Beneficial Ownership of Shares in the hands of
transferees.
3. LEGEND ON STOCK CERTIFICATE. Each certificate representing
Shares covered by this Agreement is subject to and shall bear the restrictive
legend set forth below:
The voting of shares of stock evidenced by this certificate is subject
to a Voting Agreement dated as of May 16, 1997, as amended from time
to time. Copies of the Agreement may be obtained from the Secretary
of the Company at no cost by written request of the holder of record
of this certificate.
4. GENERAL PROVISIONS.
(a) This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their legal representatives, heirs and legatees.
(b) The section headings in this Agreement are inserted for
convenience of reference only, and shall not affect the construction or
interpretation of this Agreement.
(c) The failure at any time to enforce any of the provisions of
this Agreement shall not be construed as a waiver of such provisions and
shall not affect the right of any party thereafter to enforce each and every
provision of this Agreement in accordance with its terms.
(d) This Agreement shall be governed by and construed in accordance
with the laws of the State of Illinois without giving effect to conflict of
laws principles thereof, except to the extent the Nevada General Corporation
Law and the Tennessee Business Corporation Law govern portions hereof.
(e) This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original and shall be enforceable
against the party executing the same, and all of which together shall
constitute a single Agreement. In making proof of this Agreement, it shall
not be necessary to produce or account for more than one such counterpart.
(f) Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be held to be invalid by a court
of competent jurisdiction, the remaining provisions shall remain in full
force and effect and the provision held invalid shall be modified to the
extent necessary to be valid and shall be enforced as modified.
(g) Any notice to be served under this Agreement shall be in
writing and shall be deemed to be delivered or given upon receipt if
delivered personally, by overnight courier or by
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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/ Xxxx X. Xxxxxxx, Ph.D.
_________________________________________
Xxxx X. Xxxxxxx, Ph.D.
/s/ Xxxxx Xxxx, Ph.D.
_________________________________________
Xxxxx Xxxx, Ph.D.
/s/ Xxxxxx X. Xxxxxx, Ph.D.
_________________________________________
Xxxxxx X. Xxxxxx, Ph.D.
/s/ Xxx Xxxxx, Ph.D.
_________________________________________
Xxx Xxxxx, Ph.D., individually and as General
Partner of the Xxxxx Family Investment Limited
Partnership, a Delaware limited partnership
/s/ Xxxx Xxxxxx
_________________________________________
Xxxx Xxxxxx
/s/ Xxxxxx X. Xxxxxxxxx, M.D.
_________________________________________
Xxxxxx X. Xxxxxxxxx, M.D., individually and as a
General Partner of W.F. Investments Enterprises,
Limited Partnership
Joined into by for purposes of Sections 1(c) and 1(d) herein.
Photogen Technologies, Inc.
By: /s/ Xxxx Xxxxxx
_____________________________________
Its: President
_____________________________________
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