Exhibit 9.1

 

# **AMENDED ANDRESTATED VOTING AGREEMENT**

 

This Amended and Restated Voting Agreement(“Agreement”) is entered into as of the 4th day of September, 2001, by andamong Eric A. Wachter, Ph.D. (individually and as sole Trustee of the Eric A.Wachter 1998 Charitable Remainder Trust) (“Wachter”), Craig Dees, Ph.D.(individually and as Director of the Dees Family Foundation) (“Dees”), WalterG. Fisher, Ph.D. (individually, as General Partner of the Fisher FamilyInvestment Limited Partnership, and as Sole Trustee of the Walt Fisher 1998Charitable Remainder Unitrust) (“Fisher”), Tim Scott, Ph.D. (individually andas General Partner of Scott Family Investment Limited Partnership (“Scott”),John Smolik (individually and as General Partner of the Smolik Family, L.P.)(“Smolik”), Robert J. Weinstein, M.D. (individually and as a General Partner ofW.F. Investments Enterprises, Limited Partnership, as Director of the Robertand Lois Weinstein Family Foundation, Inc. and as Trustee of the Robert andLois Weinstein Joint Revocable Trust) (“Weinstein”), and Theodore Tannebaum(individually and as Trustee of the Theodore Tannebaum Trust) (“Tannebaum”),and joined into by Photogen Technologies, Inc. as stockholder of Photogen,Inc.  Wachter, Dees, Fisher, Scott andSmolik are sometimes collectively referred to herein as the “TennesseeStockholders;” Weinstein and Tannebaum are sometimes referred to herein as the“Chicago Stockholders;” and the Chicago Stockholders and/or TennesseeStockholders are each sometimes referred to herein as a “Stockholder.”

# **Recitals**

The Stockholders collectively own as of thedate of this Agreement approximately 75% of the issued and outstanding sharesof common stock, $.001 par value per share (the “Common Stock”), of PhotogenTechnologies, Inc., a Nevada corporation (the “Company”).  The Company owns all of the issued andoutstanding shares of Photogen, Inc., a Tennessee corporation (“Subsidiary”).

The shares of Common Stock, together with allother capital stock or securities of the Company, whether authorized oroutstanding as of the date hereof or at any time hereafter, are collectivelyreferred to as the “Shares.”

The Company is party to a Securities PurchaseAgreement dated as of October 20, 1999 (the “Elan Agreement”) with ElanInternational Services, Ltd. (which, together with any affiliate of ElanCorporation plc, is called “Elan”), pursuant to which Elan has the right tonominate one director to the Company’s Board of Directors subject to the termsand conditions in Section 6(b) thereof.

Certainof the Stockholders were parties to that certain Amended and Restated VotingAgreement dated June 17, 1998, as amended (the “Original Agreement”).  The parties desire to amend the OriginalAgreement and to restate the revised provisions of the OriginalAgreement as set forth herein.

# **Agreement**

Now, therefore, in consideration of themutual promises herein and other consideration, the receipt and adequacy ofwhich is acknowledged, the parties hereby agree as follows:

# **Article 1**

**Voting Agreement**

## 1.1    Theagreement in Section 1.2 shall be deemed to constitute a voting agreement amongthe Stockholders pursuant to Section 78.365(3) of the Nevada GeneralCorporation Law.  The agreement inSection 1.3 shall be deemed to constitute an agreement among the parties heretopursuant to Section 48-17-302 of the Tennessee Business Corporation Act.  As used in this Agreement, the definitionand determination of a “Beneficial Owner” or “Beneficial Ownership” shall begoverned by Regulation 13d-3 under the Securities Exchange Act of 1934, asamended.

## 1.2           Ateach annual meeting of the stockholders of the Company, or at each specialmeeting of the stockholders of the Company, and at any other time at whichstockholders of the Company will have the right to or will vote for or renderconsent in writing, then and in each event, each Stockholder hereby agrees:

## (a)           Totake all necessary and appropriate actions to cause all Shares he BeneficiallyOwns to be represented at any such meeting or in any such written consent andto cause a quorum to be present in any such event.

## (b)           To vote or cause tobe voted all Shares of which he is the Beneficial Owner as follows:

## (i)            To amend, alter, modify or repeal the Articles ofIncorporation or the By-Laws of the Company (if at all) only in accordance withthe recommendation of five of the seven Directors of the Company (whether ornot any Board or stockholder action is required by law);

## (ii)           To fix and maintain the number of directors of the Companyat seven (7);

(iii)          From the date of this Agreementthrough December 31, 2006, to (A) elect or cause the election to the Board ofDirectors of the Company of Eric A. Wachter, Ph.D. (or other person nominatedby the holders of 80% of the aggregate Shares Beneficially Owned by theTennessee Stockholders), Robert J. Weinstein, M.D., Theodore Tannebaum, TaffyWilliams, Ph.D., Gene Golub, Lester McKeever, Jr. and Aidan King (or otherperson nominated by Elan), and (B) elect or cause the election to the Board ofDirectors of the Company of the person selected by a majority of the Company’sdirectors remaining in office or the person selected by Elan (if applicable) tofill any vacancy on the Board resulting from a director’s death, disability orresignation or otherwise; provided that the remaining members of the Boardshall, consistent with their fiduciary duties, give the highest considerationto selecting an individual to fill any such vacancy with expertise in thehealthcare, biotech or pharmaceutical industries;

(iv)          From January 1, 2007 through thetermination of this Agreement, to cause and maintain the election to the Boardof Directors of the Company of the following: (A) one (1) person nominated by Elan, (B) one person appointed by theBoard as the Chief Executive Officer of the Company, (C) three (3) personsnominated by the holders of 80% of the aggregate Shares Beneficially Owned bythe Tennessee Stockholders; and (D) two (2) persons nominated by the holder(s)of 80% of the aggregate Shares Beneficially Owned by the Chicago Stockholders;

(v)           To remove from theBoard of Directors of the Company any director nominated by the TennesseeStockholders or Chicago Stockholders, as applicable, pursuant to paragraph1.2(b)(iv)(C) and (D) at the request of the Stockholder(s) who Beneficially Own80% of the Shares held by the group nominating such director;

(vi)          To fix and maintainthe Executive Committee of the Board of Directors of the Company to consist ofthree (3) directors, and to appoint Mr. Tannebaum, Dr. Weinstein and Dr.Williams to serve on such Executive Committee through December 31, 2006 (or, inthe event of the death, disability or resignation of one of them, to appoint adirector selected by a majority of the directors then in office); and afterJanuary 1, 2007 through the termination of this Agreement to appoint to theExecutive Committee two (2) directors selected by the directors nominated bythe Tennessee Stockholders, one (1) of whom shall be the Chief ExecutiveOfficer of the Company and one (1) director selected by the directors nominatedby the Chicago Stockholders; and

(vii)         To vote inaccordance with the recommendation of five of the Board’s seven directors if avote of the Company’s shareholders is necessary to approve the Company’sissuance of securities.

## 1.3           The Company is agreeing for thebenefit of the other parties hereto to act in its capacity as stockholder ofthe Subsidiary to the actions set forth in this paragraph 1.3.  At each annual meeting of the stockholder ofthe Subsidiary, or at each special meeting of the stockholder of theSubsidiary, and at any other time at which stockholder of the Subsidiary willhave the right to or will vote for or render consent in writing, then and ineach event, the Company (as the sole stockholder of the Subsidiary) herebyagrees to vote or cause to be voted all voting securities of the Subsidiary ofwhich it is the Beneficial Owner in favor of the following actions to theextent any such actions are subject to such vote or consent:

## (a)           Ateach annual meeting of the stockholders of the Subsidiary, or at each specialmeeting of the stockholders of the Subsidiary, and at any other time at whichstockholders of the Subsidiary will have the right to or will vote for orrender consent in writing, then and in each event, the Company hereby agrees:

## (b)           Totake all necessary and appropriate actions to cause all Subsidiary votingsecurities it Beneficially Owns to be represented at any such meeting or in anysuch written consent and to cause a quorum to be present in any such event.

## (c)           Tovote or cause to be voted all Subsidiary voting securities of which the Companyis the Beneficial Owner in favor of the following actions:

## (i)            Toamend, alter, modify or repeal the Articles of Incorporation or the By-Laws ofthe Subsidiary (if at all) only in accordance with the recommendation of fiveof the seven Directors of the Subsidiary (whether or not any Board orstockholder action is required by law);

## (ii)           Tofix and maintain the number of directors of the Subsidiary at seven (7);

## (iii)          Fromthe date of this Agreement through December 31, 2006, to (A) elect or cause theelection to the Board of Directors of the Subsidiary of Eric A. Wachter, Ph.D.(or other person as the holders of 80% of the aggregate Shares BeneficiallyOwned by the Tennessee Stockholders may select), Robert J. Weinstein, M.D.,Theodore Tannebaum, Taffy Williams, Ph.D., Gene Golub, Lester McKeever, Jr. andAidan King and (B) elect or cause the election to the Board of Directors of theSubsidiary of the person selected by a majority of the Subsidiary’s directorsremaining in office to fill a vacancy on the Subsidiary’s Board resulting froma director’s death, disability, resignation or otherwise;

## (iv)          From January 1, 2007 through thetermination of this Agreement, to cause and maintain the election to the Boardof Directors of the Subsidiary of the following:  (A) one (1) person nominated by Elan, (B) one (1) personappointed by the Board as the Chief Executive Officer of the Subsidiary, (C)three (3) persons nominated by the holders of 80% of the aggregate SharesBeneficially Owned by the Tennessee Stockholders; and (D) two (2) personsnominated by the holder(s) of 80% of the aggregate Shares Beneficially Owned bythe Chicago Stockholders;

## (v)           Toremove from the Board of Directors of the Subsidiary any director nominated bythe Tennessee Stockholders or Chicago Stockholders, as applicable pursuant toparagraph 1.2(b)(iv)(C) and (D) at the request of the Stockholder(s) whoBeneficially Owns 80% of the Shares held by the group nominating such director;and

## (vi)          Tofix and maintain the Executive Committee of the Board of Directors of theSubsidiary to consist of three (3) directors, and to appointMr. Tannebaum, Dr. Weinstein and Dr. Williams to serve on such ExecutiveCommittee through December 31, 2006; and after January 1, 2007 through thetermination of this Agreement to appoint to the Executive Committee two (2)directors selected by the directors nominated by the Tennessee Stockholders one(1) of whom shall be the Chief Executive Officer of the Subsidiary and one (1)director selected by the directors nominated by the Chicago Stockholders.

## 1.4           The Company orSubsidiary, as applicable, shall provide the Stockholders entitled to nominatedirectors hereunder prior notice of any intended mailing of notice toStockholders for a meeting at which any of the actions subject to paragraphs1.2 or 1.3 are to be acted upon. Thereafter, Stockholders (or Company directors with respect tonominations of Subsidiary directors) entitled to nominate directors hereundershall notify the Company or the Subsidiary (as applicable) in writing, prior tosuch 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 theCompany or Subsidiary (as applicable), it shall be deemed that the nominee ofsuch party for such meeting is the person then serving as director pursuant tosuch Stockholders' (or Company directors') previous nomination. 

# ** **

# **Article 2**

**Necessary Acts; Additional Parties**

Each of the parties hereto agrees that he orit will do (or cause to be done) any act or thing and will execute (or cause tobe executed) any and all instruments necessary and/or proper to make effectivethe provisions of this Agreement.  EachStockholder represents and warrants to, and agrees with, each other partyhereto that (a) any transferee holding Shares over which such Stockholderremains the Beneficial Owner shall execute and deliver a counterpart of thisAgreement and shall be bound by the provisions hereof as if such transferee wasan original party hereto; and (b) such Stockholder shall provide each otherparty hereto true and complete information concerning the Beneficial Ownershipof Shares in the hands of transferees. The parties are executing this Agreement in all applicable individualand representative capacities (including as attorney-in-fact or joint tenant,and as stockholder, officer, director, trustee, general partner or limitedpartner of any entity which Beneficially Owns Common Stock of the Company orthe Subsidiary attributable to that party). Shares that a Stockholder sells, transfers or otherwise disposes of in atransaction permitted by applicable agreements (including the Agreement dated May9, 2001) and applicable law shall not be subject to the restrictions of thisAgreement, provided the transferring Stockholder is not the Beneficial Owner ofsuch Shares after the transaction.

# **Article 3**

**Legend on Stock Certificate**

Each certificate representing Shares coveredby this Agreement is subject to and shall bear the restrictive legend set forthbelow:

The voting ofshares of stock evidenced by this certificate is subject to a Voting Agreementdated as of May 16, 1997, as amended from time to time.  Copies of the Agreement may be obtained fromthe Secretary of the Company at no cost by written request of the holder ofrecord of this certificate.

# **Article 4**

**General Provisions**

##  

## 4.1           This Agreement shall be binding uponand inure to the benefit of the parties hereto and their legal representatives,heirs and legatees.

## 4.2           The section headings in thisAgreement are inserted for convenience of reference only, and shall not affectthe construction or interpretation of this Agreement.

## 4.3           The failure at any time to enforceany of the provisions of this Agreement shall not be construed as a waiver ofsuch provisions and shall not affect the right of any party thereafter toenforce each and every provision of this Agreement in accordance with itsterms.

## 4.4           This Agreement shall be governed byand construed in accordance with the laws of the State of Illinois withoutgiving effect to conflict of laws principles thereof, except to the extent theNevada General Corporation Law and the Tennessee Business Corporation Lawgovern portions hereof.

## 4.5           This Agreement may be executed in oneor more counterparts, each of which shall be deemed to be an original and shallbe enforceable against the party executing the same, and all of which togethershall constitute a single Agreement.  Inmaking proof of this Agreement, it shall not be necessary to produce or accountfor more than one such counterpart.

## 4.6           Whenever possible, each provision ofthis Agreement shall be interpreted in such manner as to be effective and validunder applicable law, but if any provision of this Agreement shall be held tobe invalid by a court of competent jurisdiction, the remaining provisions shallremain in full force and effect and the provision held invalid shall bemodified to the extent necessary to be valid and shall be enforced as modified.

## 4.7           Anynotice to be served under this Agreement shall be in writing and shall bedeemed to be delivered or given upon receipt if delivered personally, byovernight courier or by telecopier, or two days after mailing by registeredmail, return receipt requested, addressed as follows:

If to theCompany:

PhotogenTechnologies, Inc. To its then current address

 

Attention:  Taffy Williams, President

 

If to anyStockholder:

 

To suchStockholder's address on file in the

stock recordsof the Company

 

or to such other place as a party may specify in writing, delivered inaccordance with the provisions of this subsection.

## 4.8           This Agreement constitutes the fulland entire understanding and agreement of the parties with regard to thesubject hereof, and supersedes any prior agreement or understanding, written ororal, with respect to such subject matter. No party shall be liable or bound by any representations, warranties oragreements, or any other information or materials previously delivered, whetherwritten or oral, regarding such subject matter.

# **Article 5**

**Amendment; Termination.**

This Agreement may be modified or amended inany respect upon the written approval of the holders of 90% of the Shares, andas so modified or amended, this shall continue to bind all Stockholdersregardless 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 terminationexecuted by holders of 90% or more of the Shares; (ii) the Stockholderscollectively cease to own an aggregate of 20% of the issued and outstandingvoting securities of the Company; (iii) the merger of the Company with anothercompany in which the Company is not the survivor or the sale of all orsubstantially all of the Company's assets; or (iv) the 15th anniversary of thedate of this Agreement.

 

**IN WITNESS WHEREOF,** the parties hereto haveexecuted this Agreement as of the date first written above.

 

 
|                                                                          |   | /s/ Eric A. Wachter                                                                                                                                                                                                                                                  |
|-------------------------------------------------------------------------------|--------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|                                                                          |   | Eric A. Wachter, Ph.D., individually and as sole Trustee of the Eric  A. Wachter 1998 Charitable Remainder Trust                                                                                                                                                     |
|                                                                          |   |                                                                                                                                                                                                                                                                 |
|                                                                          |   | /s/ Craig Dees                                                                                                                                                                                                                                                       |
|                                                                          |   | Craig Dees, Ph.D., individually and as Director of the Dees Family  Foundation                                                                                                                                                                                       |
|                                                                          |   |                                                                                                                                                                                                                                                                 |
|                                                                          |   | /s/ Walter G. Fisher                                                                                                                                                                                                                                                 |
|                                                                          |   | Walter G. Fisher, Ph.D., individually, as General Partner of the  Fisher Family Investment Limited Partnership, and as Sole Trustee of the Walt  Fisher 1998 Charitable Remainder Unitrust                                                                           |
|                                                                          |   |                                                                                                                                                                                                                                                                 |
|                                                                          |   | /s/ Tim Scott                                                                                                                                                                                                                                                        |
|                                                                          |   | Tim Scott, Ph.D., individually and as General Partner of Scott Family  Investment Limited Partnership                                                                                                                                                                |
|                                                                          |   |                                                                                                                                                                                                                                                                 |
|                                                                          |   | /s/ John Smolik                                                                                                                                                                                                                                                      |
|                                                                          |   | John Smolik, individually and as General Partner of the Smolik  Family, L.P.                                                                                                                                                                                         |
|                                                                          |   |                                                                                                                                                                                                                                                                 |
|                                                                          |   | /s/ Robert J. Weinstein                                                                                                                                                                                                                                              |
|                                                                          |   | Robert J. Weinstein, M.D., individually and as a General Partner of  W.F. Investments Enterprises, Limited Partnership, as Director of the Robert  and Lois Weinstein Family Foundation, Inc. and as Trustee of the Robert and  Lois Weinstein Joint Revocable Trust |
|                                                                          |   |                                                                                                                                                                                                                                                                 |
|                                                                          |   | /s/ Theodore Tannebaum                                                                                                                                                                                                                                               |
|                                                                          |   | Theodore Tannebaum, individually and as Trustee of the Theodore  Tannebaum Trust by Robert J. Weinstein, M.D., Successor Trustee                                                                                                                                     |
|                                                                          |
| Joined into  by Photogen Technologies, Inc. as stockholder of Photogen, Inc.. |
|                                                                          |   |                                                                                                                                                                                                                                                                 |
|                                                                          |   | Photogen  Technologies, Inc.                                                                                                                                                                                                                                         |
|                                                                          |   |                                                                                                                                                                                                                                                                 |
|                                                                          |   |                                                                                                                                                                                                                                                                 |
|                                                                          | By:    | /s/ Taffy  Williams                                                                                                                                                                                                                                                  |
|                                                                          | Its:   | President  and CEO                                                                                                                                                                                                                                                   |
|                                                                               |        |                                                                                                                                                                                                                                                                      |  |