Exhibit 10.4


 


SECURED PROMISSORY NOTE


 


	
  June 18, 2003

  



 


FOR
VALUE RECEIVED, PHOTOGEN TECHNOLOGIES, INC., a Nevada
corporation (“Payor”), hereby unconditionally promises to pay to the order of
Xmark Fund, Ltd. (“Holder”), the principal sum of $1,753,750.00 (the “Note
Amount”) in lawful money of the United States, together with interest on the
unpaid principal balance of the Note Amount payable in shares of common stock
of the Payor, in accordance with the terms set forth herein.  This Secured Promissory Note (this “Note”)
is being issued pursuant to that certain Going Forward Agreement, dated as of
May 2, 2003 (the “Going Forward Agreement”), by and among Payor, Holder and
Xmark Fund, L.P. in order to evidence the unconditional payment obligations of
Payor to the Holder pursuant to Section 2(b)(i) and (ii) of the Going Forward
Agreement.


 


Section
1.                                          Maturity
Date.  The Note Amount
shall be due and payable as follows: (A) fifty percent (50%) of the Note Amount
shall be paid by Payor no later than the earlier to occur of (w) the 90th
day after the Closing Date (as defined in the Going Forward Agreement) and (x)
August 5, 2003, and (B) the remainder of the Note Amount shall be paid by Payor
no later than the earlier to occur of (y) the 180th day after the
Closing Date and (z) November 3, 2003; provided, however, that Payor shall pay
such installments immediately in the event it completes after the Closing Date
and prior to either August 5, 2003 or November 3, 2003, as the case may be, one
or more institutional financings resulting in aggregate gross proceeds to Payor
of at least Eighteen Million Dollars ($18,000,000) or this Note is accelerated
in accordance with Section 6.


 


Section
2.                                          Interest
Rate; Adjustments. 
Interest shall accrue on the unpaid principal balance of the Note Amount
at the rate per annum equal to the Prime Rate (as defined below) plus three
percent (3%).  For purposes of this
Note, the “Prime Rate” shall mean the prime rate published in the Wall Street
Journal, Eastern Edition, under the heading “Money Rates” on the date
hereof.  Interest shall be calculated on
the basis of a 360-day year and the actual number of days elapsed.


 


Section
3.                                          Interest
Payments.  Accrued
interest on the unpaid principal balance of the Note Amount shall be due and
payable in shares of Payor’s common stock having a per share value of $1.00
(subject to adjustment in the event of any stock split, stock dividend, reverse
stock split, recapitalization or reclassification of Payor’s common stock) on
the first business day of each month commencing on July 1, 2003 until such time
as the Note Amount has been paid in full.


 


Section
4.                                          Place and
Manner of Payment.  Payments of the Note Amount are to be made in United States
currency to Holder at 152 West 57th Street, 21st Floor,
New York, New York 10019 or at such other location designated in writing by
Holder from time to time.


 


Section
5.                                          Security for
Note.  This Note is one
of the Notes referred to in the Security Agreement, dated as of even date
hereof (the “Security Agreement”), by and among Payor, Holder and Xmark Fund,
L.P. and is secured by the collateral described therein (collectively, the
“Collateral”).  The Security Agreement
grants the Holder certain rights with respect to the Collateral upon an Event
of Default.


 

















 


Section
6.                                          Events of
Default; Remedies.  Upon
the occurrence of any Event of Default (as defined in the Security Agreement),
the outstanding Note Amount, together with all accrued but unpaid interest,
shall immediately become due and payable at the option of the Holder upon
written notice to the Payor.


 


Section
7.                                          No Waiver;
Remedies Cumulative.  No
failure or delay in exercising any right or remedy hereunder operates as a
waiver thereof.  No single or partial
exercise of any right or remedy hereunder precludes any other or further
exercise of any right or remedy hereunder or thereunder.  Except as expressly provided herein, the
exercise of any right or remedy hereunder does not preclude the simultaneous or
later exercise of any other rights or remedies available at law or in
equity.  No amendment or waiver of any
provision of this Note, nor consent to any departure by Payor herefrom, shall
in any event be effective unless the same shall be in writing and signed by
Holder, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.


 


Section
8.                                          Governing
Law.  This Note, and all
matters arising directly or indirectly herefrom, shall be governed by and
construed in accordance with the laws of the State of New York, notwithstanding
the choice of law or conflicts of law principles thereof.  Payor and, by accepting this Note, the
Holder hereby (a) irrevocably consent and submit to the sole exclusive
jurisdiction of the state and federal courts located in the State of New York
in connection with any suit, action or other proceeding directly or indirectly
arising out of or relating to this Note, and (b) irrevocably waive, to the
fullest extent permitted by law, any objection that it may now or hereafter have
to the laying of the venue of any such suit, action or proceeding in any such
court or that any such suit, action or proceeding which is brought in any such
court has been brought in an inconvenient forum.


 


Section
9.                                          Headings.  All headings in this Agreement are for
convenience of reference only and do not affect the meaning of any provision.


 


Section
10.                                   Partial Invalidity.  If any term or provision of this Note is at
any time held to be invalid by any court of competent jurisdiction, such
invalidity shall not effect the remaining terms and provisions of this Note,
which shall continue to be in full force and effect.


 


Section
11.                                   Waivers.
 Payor hereby waives presentment,
demand for payment, protect, notice of protest and notice of dishonor of this
Note.


 


Section
12.                                   Successors
and Assigns.  This Note
shall be binding on Payor and its successors and assigns and shall inure to the
benefit of Holder and his heirs, administrators, successors and assigns.  The term “Holder” in this Note shall refer
to the person originally holding this Note or to any other future holder of
this Note.


 


Section
13.                                   No Jury
Trial.  THE PAYOR HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY NOW HAVE OR
HEREAFTER HAVE TO A TRIAL BY JURY IN RESPECT TO ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS NOTE.


 


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IN
WITNESS WHEREOF, Payor has caused this Note to be duly
executed as of the date first written above.


 


 


	
   

  	
  PHOTOGEN TECHNOLOGIES, INC.

  	 

	
   

  	
   

  	 

	
   

  	
   

  	 

	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
					



 


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