Exhibit 10.23


 


STANDSTILL
AND MAKE-WHOLE AGREEMENT


 


This AGREEMENT is entered
into as of December 30, 2002 by and between Xmark Fund, L.P. and Xmark Fund,
Ltd. (collectively, “Xmark”), Alliance Pharmaceutical Corp., a New York
corporation (“Alliance”), and Photogen Technologies, Inc., a Nevada corporation
(“Photogen”).


 


WHEREAS, Xmark is the holder
of Secured Promissory Notes from Alliance having an outstanding stated value of
$3,375,000 (the “Xmark Notes”), which Xmark Notes were purchased pursuant to a
Secured Note Purchase Agreement, dated July 23, 2002 (together with the
instruments, documents and agreements related thereto, the “Xmark Loan
Documents”);


 


WHEREAS, Alliance is in
default of the Xmark Notes and, as of the date hereof, $4,262,500.71 in outstanding
stated value and accrued interest is due and owing to Xmark under the Xmark
Notes;


 


WHEREAS, Photogen is
contemplating a purchase of substantially all of Alliance’s imaging modalities
assets used in connection with Alliance’s imaging and diagnostic imaging
business, including without limitation with respect to development,
manufacture, marketing and sale of the ImagentÒ and Optison products (the
“Asset Purchase”); and


 


WHEREAS, to induce Photogen
to pursue the Asset Purchase and to make associated bridge loan advances to
Alliance, Xmark and Alliance have agreed to certain standstill covenants,
subject to the terms and conditions contained herein;


 


NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties, intending to be legally bound, hereby agree as follows.


 


1.                                       Xmark
Standstill Agreement.  Xmark
shall not exercise any rights against Alliance as a creditor, whether secured
or unsecured, or otherwise for a period (the “Standstill Period”) commencing on
the date hereof, and ending on the earliest to occur of (i)January 29, 2003,
(ii) the determination by Photogen not to pursue the Asset Purchase, (iii) the
written termination of negotiations between Photogen and Alliance with respect
to the Asset Purchase, (iv) the exercise of any remedies against the assets of
Alliance by any creditor other than Xmark or its affiliates, (v) Alliance’s
filing of a petition under any bankruptcy, insolvency or debtor’s relief law or
making an assignment for the benefit of its creditors, (vi) a court of
competent jurisdiction entering an order or decree under any federal or state
bankruptcy law and (X) is for relief against Alliance in an involuntary case,
(Y) appoints a custodian, receiver or other similar official for all or
substantially all of Alliance’s property, or (Z) orders the liquidation of
Alliance (each of the events specified in clauses (v) and (vi) of this Section
1 are referred to as, a “Bankruptcy Proceeding”), or (vii) the date specified in
a notice by Photogen on one day’s written notice to Xmark and Alliance.
Photogen shall notify Xmark in writing within one day following the occurrence
of any event specified in clauses (ii) or (iii) above. The termination of the
Standstill Period is referred to herein as the “Termination Date”.


 

















 


During the Standstill
Period, Xmark shall not pursue, institute, encourage or join in any proceeding
against Alliance at law or equity to realize upon any collateral or otherwise.
Xmark agrees that until the Termination Date, Xmark will not, directly or
indirectly ask, demand for, accelerate, accept or receive any payments of, or
other amounts or consideration on account of, the Xmark Notes (including by way
of subrogation) or any other debt from Alliance or commence, or join with any
creditor in commencing, any suit, action or judicial proceeding or bankruptcy,
reorganization, insolvency or similar proceedings with respect to Alliance or
the Xmark Notes or any other Alliance debt or assets; nor shall Xmark and Alliance
agree to or effect any amendment or change to the terms of the Xmark Loan
Documents except as contemplated in this Agreement or to preserve the
perfection and priority of Xmark’s security interest; provided, however, Xmark
may transfer the Xmark Notes and its interest in the Xmark Loan Documents to a
third party upon the prior written consent of Photogen, which shall not be
unreasonably withheld, and provided that such third party purchaser agrees in
writing to be bound by the terms of this Agreement. Xmark shall execute and
deliver to Photogen instruments confirming this Agreement if and to the extent
necessary to enforce the provisions of this Agreement. The terms of this
Agreement, the standstill effected hereby, and the rights of Photogen which are
created hereunder, shall not be affected by (i) any amendment, addition,
modification, extension, increase, restatement or supplement of or to any of
the Xmark Notes or Xmark Loan Documents or any instrument, document or
agreement relating thereto, (ii) any exercise or non-exercise of any right,
power or remedy under or in respect of the Xmark Notes or Xmark Loan Documents
or any instrument, document or agreement relating thereto, (iii) any claim or
defense as to the validity or enforceability of any instruments, documents or
agreements relating to the proposed Asset Purchase, or (iv) any other
circumstance which might otherwise constitute a defense available to, or a
discharge of Alliance, Xmark or any other party.


 


2.                                       Issuance of
Photogen Common Stock.


 


2.1                                 Balance of
Secured Note: Interest during Standstill Period.  The parties acknowledge and agree that Alliance owes Xmark
$4,262,500.71 (the “Starting Balance”) in outstanding stated value and accrued
interest pursuant to the Xmark Notes as of the date hereof. During the
Standstill Period and following the termination or expiration of the Standstill
Period, until such time as the Xmark Notes have been indefeasibly paid in full,
interest will continue to accrue on the Xmark Notes pursuant to the existing terms
and conditions of the Xmark Notes (the interest that accrues on the Xmark Notes
solely during the Standstill Period is referred to as, the “Standstill
Interest”). Photogen shall have no responsibility for, or obligation with
respect to the payment of, the Starting Balance, any interest accrued on the
Xmark Notes and included in the Starting
Balance, or any interest that accrues on the Xmark Notes from and after
the Termination Date.


 


2.2                                 Issuance of
Photogen Shares.


 


(a)                                  As soon as
practicable after the execution of this Agreement, Photogen shall issue two
hundred fifty thousand (250,000) shares (the “Initial Photogen Shares”) of
Photogen common stock, $0.01 par value per share (the “Photogen Common Stock”),
to Xmark.


 


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(b)                                 So long as the
Standstill Period is still in effect immediately prior to January 29, 2003,
Photogen shall have the irrevocable option to extend the Standstill Period
through February 28, 2003, subject to earlier termination in accordance with
clauses (ii) through (vii) of Section 1 hereof, in consideration for the
issuance of an additional two hundred fifty thousand (250,000) shares of
Photogen Common Stock (subject to adjustment for stock splits, stock
combinations, stock dividends and the like effected after the date of this
Agreement) (the “First Option Photogen Shares”) to Xmark. Photogen may exercise
its irrevocable option by providing written notice of such election to Xmark at
least two (2) days prior to January 29, 2003. Photogen shall issue the First
Option Photogen Shares to Xmark within five (5) business days following its
exercise of the irrevocable option in accordance with this Section 2.2(b).


 


(c)                                  So long as the
Standstill Period is still in effect immediately prior to February 28, 2003,
Photogen shall have the irrevocable option to extend the Standstill Period
through March 30, 2003, subject to earlier termination in accordance with
clauses (ii) through (vii) of Section 1 hereof, in consideration for the
issuance of an additional two hundred fifty thousand (250,000) shares of
Photogen Common Stock (subject to adjustment for stock splits, stock
combinations, stock dividends and the like affected after the date of this
Agreement) (the “Second Option Photogen Shares” and together with the Initial
Photogen Shares and the First Option Photogen Shares, the “Photogen Shares”) to
Xmark. Photogen may exercise its irrevocable option by providing written notice
of such election to Xmark at least two (2) days prior to February 28, 2003.
Photogen shall issue the Second Option Photogen Shares to Xmark within five (5)
business days following its exercise of the irrevocable option in accordance
with this Section 2.2(c).


 


(d)                                 If the
Standstill Period is still in effect immediately prior to March 30, 2003, the
Standstill Period may be extended by mutual written agreement of Xmark and
Photogen, but neither party is obligated to enter into any such agreement to
extend the Standstill Period.


 


(e)                                  Photogen shall
use its reasonable best efforts to register the Photogen Shares under the
Securities Act of 1933, as amended, within 120 days from the date hereof (the
120th day following the date hereof is referred to as, the
“Registration Date”). Xmark shall be entitled to payment in an amount equal to
1.5% of the Photogen Shares, valued at the Share Value (as defined below), for
any 30-day period or pro rata for any portion thereof following the
Registration Date if no registration statement is effective with respect to the
Photogen Shares. Such payment may be made, at Photogen’s election, in cash or
Photogen Common Stock (valued at the Share Value).


 


(f)                                    In the event
that Xmark indefeasibly receives payment for all of the Standstill Interest, as
determined in accordance with Section 2.2(i), within one year of the
Termination Date, whether by (a) payment by Photogen during such one year
period (which Photogen may, in its sole discretion, make to Xmark at any time
during such one year period), (b) cash payment by Alliance during such one year
period (which Alliance is obligated to make to Xmark), or (c) payment by any
third party during such one year period, whether in connection with a sale of
the stock or assets of Alliance, a secured party sale, bankruptcy or otherwise


 


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(collectively, a “Payment Event”), then Xmark
shall immediately (y) return to Photogen good and marketable title to all of
the Photogen Shares then held by Xmark or its affiliates, free and clear of all
liens, claims, rights, options and encumbrances, but (z) to the extent Xmark
has sold any Photogen Shares prior to the Payment Event, pay Photogen cash for
each Photogen Share not so delivered to Xmark due to their having been sold
prior to the Payment Event, valued at $1.00 per share, (subject to adjustment
in connection with any stock split or stock 
combination of the Photogen Common Stock effected after the date of this
Agreement, the “Share Value”).  To effect
the transfer of Photogen Shares, Xmark shall deliver to Photogen the certificate(s)
representing the Photogen Shares duly endorsed for transfer with signatures
guaranteed.


 


(g)                                 In the event
that Xmark does not receive any of the Standstill Interest within one year of
the Termination Date as a result of the occurrence of a Payment Event, then
Xmark shall have the right to retain all of the Photogen Shares.


 


(h)                                 In the event
that Xmark indefeasibly receives a portion, but less than all, of the
Standstill Interest, as determined in accordance with Section 2.2(i), within
one year of the Termination Date as a result of the occurrence of a Payment
Event, then Xmark shall immediately (y) return to Photogen good and marketable
title to such number of Photogen Shares then held by Xmark or its affiliates,
free and clear of all liens, claims, rights, options and encumbrances, equal to
the pro rata portion of the Standstill Interest which it did receive (with such
Photogen Shares valued at the Share Value), and (z) to the extent the value of
the returned Photogen Shares does not equal the portion of the Standstill
Interest received by Xmark, pay Photogen cash equal to the pro rata portion of
the Standstill Interest received by Xmark less the aggregate  Share Value for all Photogen Shares returned
to Photogen by Xmark.


 


(i)                                     Upon Xmark’s
receipt of any proceeds from a Payment Event, such proceeds shall be deemed to
be applied first against the Starting Balance, then against the Standstill
Interest and thereafter against any additional amounts due under the Xmark
Notes, including without limitation interest accrued after the Standstill
Period.  Notwithstanding anything
contained herein to the contrary,


 


(a)                                  if Xmark
receives non-cash consideration (other than non-cash consideration in the form
of debt or equity securities of Photogen) on behalf of the Xmark Notes pursuant
to a Bankruptcy Proceeding, Xmark and Photogen shall jointly select an
independent appraiser to determine the fair market value of the non-cash consideration received by Xmark (which determination of fair market
value shall be binding upon Xmark and Photogen) and the fair market value of such non-cash consideration, as
determined by the independent appraiser, shall be applied toward the repayment
of the Xmark Notes and the Standstill Interest for purposes of this Agreement
in the order of priority set forth in this Section 2.2(i), (and provided
further that if Xmark is obligated to pay Photogen cash pursuant to Section
2.2(f) or 2.2 (h), then Xmark may pay such amount by transfer and assignment of
such non-cash consideration, valued at such fair market value), and


 


(b)                                 if Xmark
receives non-cash consideration in the form of debt or equity securities of
Photogen on behalf of the Xmark Notes pursuant to a Bankruptcy


 


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Proceeding, such non-cash consideration shall
not count towards the repayment of the Xmark Notes and the Standstill Interest
for purposes of this Agreement.


 


Xmark agrees that any
Photogen Shares issued pursuant to this Section 2.2 shall be subject to a stop
order with Photogen’s transfer agent and legend on such stock certificate(s)
limiting transferability except in accordance with this Agreement and
applicable securities laws and upon delivery of an opinion of counsel
acceptable to Photogen.


 


Example
For Illustration Purposes Only:  Assuming that the Standstill Period expires after 60 days,
Photogen accordingly issued 500,000 restricted shares to Xmark and the Starting
Balance plus the Standstill Interest is $4,500,000:


 


•                  If Xmark indefeasibly
receives cash and non-cash consideration (with the fair market value of the
non-cash consideration being determined by an independent appraiser mutually
acceptable to Xmark and Photogen) from a third party (other than Photogen) in
the amount of $4,500,000 for amounts due and owing under the Xmark Notes within
one year following the Termination Date, then Xmark shall return all 500,000
Photogen Shares.  If Xmark sold 200,000
of the Photogen Shares prior to receipt of such
cash and non-cash consideration on behalf of the Xmark Notes, then Xmark
shall return 300,000 of the Photogen Shares and either (i) transfer all or a
portion of such non-cash consideration to Photogen having a fair market value
equal to $200,000 or (ii) pay Photogen $200,000 in cash.


 


•                  If Xmark indefeasibly
receives cash and non-cash consideration (with the fair market value of the
non-cash consideration being determined by an independent appraiser mutually
acceptable to Xmark and Photogen) from a third party (other than Photogen) in
the amount of $4,250,000 for amounts due and owing under the Xmark Notes within
one year following the Termination Date, then Xmark is entitled to keep 250,000
of the Photogen Shares and is required to return the other 250,000 Photogen
Shares. If Xmark sold 300,000 of the Photogen Shares prior to receipt of such
cash and non-cash consideration on behalf of the Xmark Notes, then Xmark shall
return 200,000 Photogen Shares and either (i) transfer all or a portion of such
non-cash consideration to Photogen having a fair market value equal to $50,000
or (ii) pay Photogen $50,000 in cash.


 


3.                                       Representations
and Warranties of the Parties.


 


3.1                                 Xmark.           Xmark represents and
warrants to Photogen as follows.


 


(a)                                  The execution,
delivery and performance of this Agreement (i) have been duly authorized by all
necessary corporate or partnership action on behalf of Xmark, (ii) do not and
will not violate any provision of law, rules, regulations, or orders or any
provision of the charter, bylaws or other organizational documents of or
binding on Xmark, and (iii) do not and will not violate, result in the breach
of, or constitute a default or require any consent under, any contract,
agreement, indenture or instrument to which Xmark is a party or by which Xmark
or Xmark’s property may be bound or subject. 
This Agreement has been duly and validly


 


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executed and
delivered by Xmark and constitutes the legal, valid and binding obligation of
Xmark, enforceable against Xmark in accordance with the terms hereof, subject
as to enforceability (x) to applicable bankruptcy, insolvency, reorganization
or moratorium and other similar laws affecting creditors’ rights generally and
(y) to the application of general principles of equity.  No governmental or other approval is required
in connection with the execution and delivery by Xmark of, and the performance
of the obligations of Xmark under, this Agreement.  Xmark understands that Photogen has no obligation or liability to
Xmark as to whether Photogen makes bridge loan advances to Alliance or
completes the Asset Purchase.


 


(b)                                 Xmark has not sold, transferred, assigned, pledged or otherwise
hypothecated or disposed of any of its rights to the Xmark Notes or any other
rights of Xmark as a secured or unsecured creditor of Alliance.


 


(c)                                  Xmark is an “accredited investor” as such term is defined in Regulation
D under the Securities Act of 1933, as amended (the “1933 Act”).  The Photogen Shares to be received by Xmark
hereunder will be acquired for Xmark’s own account, not as nominee or agent,
and not with a view to the resale or distribution of any part thereof in
violation of the 1933 Act, and Xmark has no intention of selling, granting any
participation in, or otherwise distributing the same in violation of the 1933
Act.  Xmark acknowledges that it can
bear the economic risk and complete loss of its investment in the Photogen
Shares and has such knowledge and experience in financial or business matters
that it is capable of evaluating the merits and risks of the investment
contemplated hereby.  Xmark understands
that the Photogen Shares are characterized as “restricted securities” under the
U.S. federal securities laws inasmuch as they are being acquired from Photogen
in a transaction not involving a public offering and that under such laws and
applicable regulations such securities may be resold without registration under
the 1933 Act only in certain limited circumstances, and the certificate(s) for
the Photogen Shares will bear a legend to that effect.  Xmark has had an opportunity to receive
additional information related to Photogen requested by it and to ask questions
of and receive answers from Photogen regarding Photogen, its business and the
terms and conditions of the offering of the Photogen Shares.  Xmark acknowledges access to copies of
Photogen’s most recent Annual Report on Form 10-K for the fiscal year ended
December 31, 2001, as amended (the “2001 10-K”), and all other reports and
amendments thereto filed by Photogen pursuant to the Securities Exchange Act of
1934, as amended (the “1934 Act”), since the filing of the 2001 10-K and prior
to the date hereof (collectively, the “SEC Filings”) through EDGAR.  Xmark did not learn of the investment in the
Photogen Shares as a result of any public advertising or general solicitation.


 


3.2.                              Alliance.  Alliance represents and warrants to Xmark
and Photogen as follows.  The execution,
delivery and performance of this Agreement (i) have been duly authorized by all
necessary corporate action on behalf of Alliance, (ii) do not and will not violate
any provision of law, rules, regulations, or orders or any provision of the
charter, bylaws or other organizational documents of or binding on Alliance,
and (iii) do not and will not violate, result in the breach of, or constitute a
default or require any consent under, any contract, agreement, indenture or
instrument to which Alliance is a party or by which Alliance or Alliance’s
property may be bound or subject. This Agreement has been duly and validly
executed and delivered by Alliance and constitutes the legal, valid and binding
obligation of Alliance, enforceable against Alliance in accordance with the
terms hereof, subject as to enforceability (x) to applicable


 


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bankruptcy,
insolvency, reorganization or moratorium and other similar laws affecting
creditors’ rights generally and (y) to the application of general principles of
equity.  No governmental or other
approval is required in connection with the execution and delivery by Alliance
of, and the performance of the obligations of Alliance under, this Agreement.


 


3.3                                 Photogen.  Photogen represents and warrants to Xmark as
follows.


 


(a)                                  The execution, delivery and performance of this Agreement, including
the issuance of the Photogen Shares, (i) have been duly authorized by all
necessary corporate action on behalf of Photogen, (ii) do not and will not
violate any provision of law, rules, regulations, or orders or any provision of
the charter, bylaws or other organizational documents of or binding on
Photogen, and (iii) do not and will not violate, result in the breach of, or
constitute a default or require any consent under, any contract, agreement,
indenture or instrument to which Photogen is a party or by which Photogen or
Photogen’s property may be bound or subject. 
This Agreement has been duly and validly executed and delivered by
Photogen and constitutes the legal, valid and binding obligation of Photogen,
enforceable against Photogen in accordance with the terms hereof, subject as to
enforceability (x) to applicable bankruptcy, insolvency, reorganization or
moratorium and other similar laws affecting creditors’ rights generally and (y)
to the application of general principles of equity.  No governmental or other approval is required in connection with
the execution and delivery by Photogen of, and the performance of the
obligations of Photogen under, this Agreement.


 


(b)                                 Photogen is a corporation duly organized, validly existing and in
corporate good standing under the laws of the State of Nevada and is qualified
to do business as a foreign corporation in each jurisdiction in which such
qualification is required, except where the failure to be so qualified would
not have, either individually or in the aggregate, a material adverse effect on
the business, operations, financial condition, assets, prospects, liabilities
or contractual rights of Photogen, whether individually or taken as a whole (a
“Material Adverse Effect”).  Photogen
has duly authorized the sale and issuance, pursuant to the terms of this
Agreement an adequate number shares of its common stock authorized and
available for issuance hereunder, having the rights, restrictions, privileges
and preferences set forth in the Amended and Restated Articles of
Incorporation, as amended to date.


 


(c)                                  The issuance, sale and delivery of the Photogen Shares in accordance
with this Agreement have been duly authorized by all necessary corporate action
on the part of Photogen.  The Photogen
Shares when so issued, sold and delivered against payment therefor in
accordance with the provisions of this Agreement will be duly and validly
issued, fully paid and non-assessable.


 


(d)                                 The SEC Filings are the only filings required of Photogen pursuant to
the 1934 Act for such periods.  At the
time of filing thereof, the SEC Filings complied as to form in all material
respects with the requirements of the 1934 Act and did not contain any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements made therein, as amended and in the light of the
circumstances under which they were made, not misleading.  During the preceding two years, except as
set forth in the SEC Filings:  Each
registration statement and any amendment thereto filed by Photogen pursuant to


 


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the 1933 Act and
the rules and regulations thereunder, as of the date such statement or
amendment became effective, complied as to form in all material respects with
the 1933 Act and did not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary in
order to make the statements made therein, in light of the circumstances under
which they were made, not misleading; and each prospectus filed pursuant to
Rule 424(b) under the 1933 Act, as of its issue date and as of the closing of
any sale of securities pursuant thereto did not contain any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements made therein, in the light
of the circumstances under which they were made, not misleading.  Photogen is engaged only in the business
described in the SEC Filings and the SEC Filings contain a complete and
accurate description in all material respects of the business of Photogen,
taken as a whole, as required to be disclosed.


 


(e)                                  The financial statements included in each SEC Filing present fairly, in
all material respects, the consolidated financial position of Photogen as of
the dates shown and its consolidated results of operations and cash flows for
the periods shown, and such financial statements have been prepared in
conformity with United States generally accepted accounting principles applied
on a consistent basis (except as may be disclosed therein or in the notes
thereto, and, in the case of quarterly financial statements, as permitted by
Form 10-Q under the 1934 Act).  Except
as set forth in the financial statements of Photogen included in the SEC
Filings filed prior to the date hereof Photogen has not incurred any
liabilities, contingent or otherwise, except those incurred in the ordinary
course of business, consistent (as to amount and nature) with past practices
since the date of such financial statements, none of which, individually or in
the aggregate, have had or could reasonably be expected to have a Material
Adverse Effect.


 


(f)                                    Except as disclosed in the SEC Filings or on Schedule 3.3(f) hereto,
there are no pending actions, suits or proceedings against Photogen or its
subsidiaries which affect any of its or their properties; and to Photogen’s
knowledge, no such actions, suits or proceedings are threatened or
contemplated.


 


(g)                                 Photogen is in compliance with all applicable Nasdaq SmallCap Market
continued listing requirements.  There
are no proceedings pending or to Photogen’s knowledge threatened against
Photogen relating to the continued listing of its common stock on the Nasdaq
SmallCap Market and Photogen has not received any notice of, nor to Photogen’s
knowledge is there any basis for, the delisting of its common stock from the
Nasdaq SmallCap Market.


 


(h)                                 Neither Photogen nor any person or entity acting on its behalf has
conducted any general solicitation or general advertising (as those terms are
used in Regulation D) in connection with the offer or sale of any of the
Photogen Shares.


 


4.                                       General.


 


4.1                                 Notices.  All notices, requests, consents and other
communications under this Agreement shall be in writing and shall be delivered
by hand, by telecopier, by express


 


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overnight courier
service or mailed by first class mail, postage prepaid, to the respective
addresses set forth on the signature pages of this Agreement, as such addresses
may be modified by notice given pursuant to this Section 4.1, with copies
provided simultaneously to counsel as set forth on the signature pages of this
Agreement.  Notices provided in
accordance with this Section 4.1 shall be deemed delivered upon personal
delivery, receipt by telecopy or overnight mail, or 48 hours after deposit in
the mail in accordance with the above.


 


4.2                                 Entire Agreement.  This Agreement, together with the
instruments and other documents hereby contemplated to be executed and
delivered in connection herewith, contains the entire agreement and
understanding of the parties hereto, and supersedes any prior agreements, negotiations or understandings between or among them, with
respect to the subject matter hereof. 
Except as expressly set forth in this Agreement, no party makes any
representation or warranty, express or implied, with respect to the transactions contemplated by this
Agreement or any such other agreements. 
Except as expressly set forth in this Agreement, Photogen makes no
representation or warranty, express or implied, with respect to the business of Photogen, Photogen, Photogen’s
assets or its future prospects (including any of the foregoing with respect to
Alliance).  No party is relying on any
understandings, agreements or representations other than those expressly
contained in this Agreement or such other written agreements.


 


4.3
                              Amendments and Waivers.  This Agreement may only be amended or
modified by a writing dated after the date hereof and signed by the parties
hereto.  No waivers of or exceptions to
any term, condition or provision of this Agreement, in any one or more
instances, shall be deemed to be, or construed as, a further or continuing
waiver of any such term, condition or provision.


 


4.4                                 Counterparts.  This Agreement may be executed in several counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.


 


4.5                                 Captions.  The captions of the sections, subsections
and paragraphs of this Agreement have been added for convenience only and shall
not be deemed to be a part of this Agreement.


 


4.6                                 Severability.  Each provision of this Agreement shall be
interpreted in such manner as to validate and give effect thereto to the
fullest lawful extent, but if any provision of this Agreement is determined by
a court of competent jurisdiction to be invalid or unenforceable under
applicable law, such provision shall be ineffective only to the extent so
determined and such invalidity or unenforceability shall not affect the remainder
of such provision or the remaining provisions of this Agreement.


 


4.7                                 Governing Law.  This Agreement shall be governed by and
interpreted and construed in accordance with the laws of the State of New
York.  The parties irrevocably submit to
the exclusive jurisdiction of the state and federal courts located in New York,
New York for the purpose of any suit, action, proceeding or judgment relating
to or arising out of this Agreement and the transactions contemplated hereby.  Service of process in connection with any


 


9

















 


such suit, action
or proceeding may be served on each party hereto anywhere in the world by the
same methods as are specified for the giving of notices under this
Agreement.  The parties irrevocably
consent to the jurisdiction of any such court in any such suit, action or
proceeding and to the laying of venue in such court.  The parties irrevocably waive any objection to the laying of
venue of any such suit, action or proceeding brought in such courts and
irrevocably waive any claim that any such suit, action or proceeding brought in
any such court has been brought in an inconvenient forum.


 


4.8                                 Injunctive Relief.  In the event of any breach or threatened
breach of the provisions of this Agreement by Xmark or its representatives,
Photogen shall be entitled to all legal and equitable remedies available to it,
and without limiting any other available remedies, Photogen shall be entitled
to equitable relief without the necessity of posting a bond, including
injunction and specific performance.  No
failure or delay by Photogen in exercising any right, power or privilege
hereunder will operate as a waiver thereof, nor will any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any right, power or privilege hereunder.  
In any action to enforce the provisions of this Agreement, the
non-prevailing party shall pay the reasonable attorneys fees and related
reasonable costs and expenses incurred by the prevailing party in connection
therewith.


 


[Next Page is Signature Page.]


 


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IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first above written.


 


 


	
   

  	
  Xmark
  Fund, L.P.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mitchell D. Kaye

  	
   

  
	
   

  	
  Its:

  	
   

  	
   

  
	
   

  	
  Address:

  	
  152
  W 57th, 21st FL

  
	
   

  	
   

  	
  NY 
  NY 10019

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Xmark
  Fund, Ltd.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mitchell D. Kaye

  	
   

  
	
   

  	
  Its:

  	
   

  	
   

  
	
   

  	
  Address:

  	
  152
  W 57th, 21st FL

  
	
   

  	
   

  	
  NY 
  NY 10019

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Alliance
  Pharmaceutical Corp.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Theodore Roth

  	
   

  
	
   

  	
  Its:

  	
  PRESIDENT & COO

  	
   

  
	
   

  	
  Address:

  	
  6175
  LUSK BLVD.

  
	
   

  	
   

  	
  SAN DIEGO CA 92121

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Photogen
  Technologies, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Taffy Williams

  	
   

  
	
   

  	
  Its:

  	
  President and CEO

  	
   

  
	
   

  	
  Address:

  	
  140 Union SQ. Drive

  
	
   

  	
   

  	
  New Hope, PA 18938

  
					



 


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