Exhibit 99.2
INTERIM MANAGEMENT AGREEMENT
THIS INTERIM MANAGEMENT AGREEMENT (the "Agreement") is effective as of
this 15th day of March, 2002 (the "Effective Date"), by and between Sunrise
Technologies International, Inc., a Delaware corporation ("Sunrise") and Anesti
Management LLC or its assignee ("Anesti").
R E C I T A L S
A. Sunrise is a publicly held company and is subject to the reporting
requirements of the Securities Exchange Act of 1934 as amended (the "34 Act").
B. Sunrise has entered into a letter of intent ("Letter of Intent") to
acquire from Xxxxxx Ventures LLC, a Delaware LLC, and R. Xxxx Xxxxxx, an
individual, (collectively "Xxxxxx") all membership units of SBH Holdings LLC, a
Nevada LLC doing business as ScienceBased Health ("SBH") in exchange for the
consideration described in the Letter of Intent.
C. Certain conditions precedent outlined in the Letter of Intent are
required before the transactions contemplated in the Letter of Intent can be
finalized. As one of the conditions precedent, Sunrise has agreed to enter into
an interim management agreement with Anesti which will commence as of the
Effective Date and terminate upon satisfaction of the remaining conditions
precedent outlined in the Letter of Intent and the purchase by Sunrise of the
SBH membership units.
D. Sunrise desires to retain Anesti as an interim manager of Sunrise,
and Anesti agrees to act as an interim manager of Sunrise pursuant to the term
and conditions provided in this Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged, the parties agree as follows.
A G R E E M E N T
1. Management. Sunrise hereby agrees to retain Anesti to perform the management
and operation of Sunrise's business which may include, without limitation,
assisting in negotiating and arranging financing for Sunrise, processing and
negotiating business contracts for Sunrise and management of all operations of
Sunrise. In order for Anesti to perform its services, Sunrise hereby grants
Anesti very broad powers to run the business including, without limitation, the
authority and power to manage and control the day-to-day business operations of
Sunrise which include, without limitation, the sole authority to receive and
disburse funds upon behalf of Sunrise and to hire, fire, dismiss, contract with
or retain employees, independent contractors or other third parties on behalf of
Sunrise, which Anesti, in its sole discretion, determines may be necessary or
unnecessary, as the case may be, to manage and/or operate Sunrise. Anesti agrees
that it will keep in place all current insurance policies.
2. Expenses, Fees and Costs. The parties hereby agree that Anesti, as agent for
Sunrise, shall pay any and all expenses, fees, claims and/or costs (including
attorneys' fees) associated with, relating to, or deriving from the management
and operation incurred by Anesti in the discharge of its duties ("Expenses").
3. Consideration. As payment for Anesti's services, Sunrise hereby agrees that
Anesti shall receive the following consideration:
(a) Anesti will receive immediate reimbursement from Sunrise for any and
all Expenses paid by Anesti on Sunrise's behalf or the like incurred in
connection with the performance of Anesti's services under this Agreement.
Anesti shall be entitled to receive reimbursement under this Section 3(a)
immediately upon notifying Sunrise of any Expenses.
(b) Within 3 business days of this Agreement, Sunrise will compensate
Anesti with all remaining shares available under its S-3 shelf registration
(estimated to be 2,000,000 shares of its freely tradable common stock) as
consideration for services rendered. Anesti agrees that it will not sell or
otherwise transfer an interest in these shares until Sunrise has filed a Form
8-K with the Securities and Exchange Commission.
4. Term. The term of this Agreement shall commence on the Effective Date and
continue until the conditions precedent identified in the Letter of Intent are
satisfied, Sunrise has purchased the SBH units in accordance with the Letter of
Intent, and a 3-year management contract between Sunrise and Anesti has been
reached. Notwithstanding the foregoing, Anesti may, in its sole discretion,
terminate this Agreement at any time if (i) Sunrise fails to pay Anesti the
consideration identified in Section 3 of this Agreement, (ii) Sunrise otherwise
materially breaches its obligations under this Agreement, or (iii) the
conditions precedent in the Letter of Intent are not satisfied within 30 days
following the Effective Date.
5a. Indemnification. Sunrise hereby agrees to indemnify, defend and hold
harmless Anesti from and against any and all claims, liabilities, judgments,
penalties, losses, costs, damages, demands, and expenses, including attorney's
fees and expert witness costs, arising by reason of, or in connection with (i)
any act or omission pursuant to, or in breach of the representations,
warranties, and covenants made or undertaken by Sunrise in this Agreement or in
connection with the transactions contemplated hereunder, (ii) any and all claims
in connection with transactions entered into by Sunrise, and (iii) any and all
claims arising under the 34 Act representing securities transactions initiated
by Anesti. In any such case, Anesti shall have the sole and exclusive right to
control the defense, select or approve legal counsel and resolve any such claim
by judgment, award, settlement or otherwise, and Sunrise agrees to cooperate
fully and completely in the conduct of such defense and/or the resolution
thereof, at Sunrise's sole cost and expense.
5b. Indemnification. To the extent not covered by applicable insurance policies,
Anesti hereby agrees to indemnify, defend and hold harmless Sunrise and its
Board of Directors from and against any and all claims, liabilities, judgments,
penalties, losses, costs, damages, demands, and expenses, including attorney's
fees and expert witness costs, arising by reason of, or in connection with (i)
any act or omission pursuant to, or in breach of the representations,
warranties, and covenants made or undertaken by Anesti in this Agreement or in
connection with
the transactions contemplated hereunder, (ii) the services performed or
undertaken by Anesti, its agents, employees, other companies, contractors,
governmental agencies or the like relating to any management or services
provided by Anesti or in any way relating to, or arising out of, Anesti's
business operations or financing arrangement, (iii) any fees or expenses
relating to Sunrise's business or the management thereof by Anesti, (iv) any and
all claims in connection with transactions entered into by Anesti, and/or (v)
any and all claims arising under the 34 Act other than securities transactions
initiated by Anesti. In any such case, Sunrise shall have the sole and exclusive
right to control the defense, select or approve legal counsel and resolve any
such claim by judgment, award, settlement or otherwise, and Anesti agrees to
cooperate fully and completely in the conduct of such defense and/or the
resolution thereof, at Anesti's sole cost and expense. Notwithstanding the
foregoing, Anesti shall have no liability or obligations under this Agreement
whatsoever that pertain to acts or transactions occurring before March 15, 2002.
6. Limitation of Liability. The parties agree that except for the provisions of
5b, the total cumulative liability of Anesti, its affiliates and their
respective directors, officers, employees, and agents with respect to services
performed or to be performed pursuant to this Agreement, whether for breach of
contract, contribution, tort or other theory of liability, shall not exceed 100%
of the compensation received by Anesti from Sunrise under this Agreement.
Sunrise agrees and acknowledges that Anesti will not be responsible or liable
for consequential, incidental, special, or punitive damages, or for loss of
revenue or profit in connection with the performance or failure to perform
services under this Agreement, regardless of whether liability arose from breach
of contract or any other theory of liability. The parties agree and acknowledge
this Section 6 of the Agreement is a material part of the consideration for the
Agreement.
7. Sunrise's Representations and Warranties. Sunrise represents, warrants and
covenants to Anesti that (i) the execution and delivery of this Agreement by
Sunrise has been duly authorized and approved by the Sunrise's officers and
board of directors, and (ii) no further action will be necessary on Sunrise's
part to make this Agreement valid and binding in accordance with its terms.
8. Anesti's Representations and Warranties. Anesti represents warrants and
covenants to Sunrise that (i) the execution and delivery of this Agreement by
Anesti has been duly authorized and approved by the Anesti's manager and/or
members, and (ii) no further action will be necessary on Anesti's part to make
this Agreement valid and binding in accordance with its terms.
9. Interpretation. This Agreement shall not be construed more strictly against
one party than the other merely by virtue of the fact that it may have been
prepared by counsel for one of the parties. The parties recognize that both
Sunrise and Anesti have contributed substantially and materially to the
preparation of this Agreement.
10. Further Action. The parties shall execute all further documents and take all
further actions reasonably requested by the other to carry out or consummate the
transaction contemplated hereunder.
11. Dispute Resolution. Any dispute arising out of or in connection with this
Agreement, shall be resolved only by binding arbitration, conducted by the
Judicial Arbitration and
Mediation Service (JAMS) (or their successor and if no successor, then by the
American Arbitration Association), in San Francisco County, California. Written
notice of the demand for arbitration shall be served on the other party to this
agreement and filed with the arbitration service. The demand for arbitration
shall be made within a reasonable time after the dispute has arisen, and in no
event shall it be made after the date upon which it would have been barred by
the terms of this agreement or applicable law. Each arbitrator must be
experienced in the subject matter of the arbitration. Arbitration shall be
completed not later than 180 days following its initiation. In reaching their
award, the arbitrators shall follow and be bound by substantive California law,
including the provisions of California Code Civ. Proc. Section 1283.05, as if
they were judges sitting in a California court of law. However, arbitrators
shall in no manner award punitive damages (or damages calculated by applying a
multiplier) or damages for emotional distress. The award shall be in writing and
shall contain findings of fact and conclusion of law and shall set forth the
nature, amount and manner of calculation of all damages. The award shall be
final and binding, and judgment may be entered upon it in any court having
jurisdiction. This provision has been expressly agreed to by the parties with
full understanding that it acts to waive their respective constitutional rights
to a trial by judge or jury and their respective rights to punitive or emotional
distress damages.
12. Legal Fees. In the event of any legal or equitable proceeding (or
arbitration) arising out of or in connection with the parties' obligations under
this Agreement, the prevailing party shall recover its reasonable attorneys'
fees, reasonable costs of experts and other costs incurred in that action or
proceeding, in addition to any other relief to which they may be entitled.
13. Notices. All notices required to be given under this Agreement shall be
given in writing and shall be effective when actually delivered or three (3)
days after deposit in the United States mail, first class, postage prepaid,
addressed to the party to whom the notice is to be given. Any party may change
its address for notices under this Agreement by giving formal written notice to
the other parties, specifying that the purpose of the notice is to change the
party's address.
14. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, and all of which taken together shall
constitute one and the same instrument.
15. Governing Law. This Agreement shall be governed by and construed according
to the laws of the State of California without regard to principles of conflicts
of law, as applied to contracts entered within California, between California
residents and to be performed entirely within California. Both parties hereby
agree to submit to the jurisdiction of the appropriate U.S. state and/or federal
court in California as may be necessary for the resolution of any claim,
controversy or other matter arising out of or in connection with this agreement.
16. Severability. In the event any of the provisions of this Agreement shall be
held by a court of competent jurisdiction to be contrary to any state or federal
law, the remaining provisions of this Agreement will remain in full force and
effect. Any provision, which is held to be invalid or unenforceable, shall be
limited to the least extent possible so as to make the provision valid and
enforceable.
17. Headings. The section headings in this Agreement do not form a part of this
Agreement, but are for convenience only and shall not limit or affect the
meaning of the provisions.
18. Interpretation. In this Agreement, where appropriate, the use of the
singular shall include the plural and use of the plural shall include the
singular.
19. Entire Agreement. The terms of this Agreement are intended by the parties as
a final expression of their agreement with respect to the subject matter hereof,
and may not be contradicted by evidence of any prior or contemporaneous
agreement. The parties further intend that this Agreement constitutes the
complete and exclusive statement of its terms and that no extrinsic evidence
whatsoever may be introduced in any proceedings (judicial or otherwise)
involving this Agreement, except for evidence of a subsequent written amendment
hereto, which conforms to the terms and conditions herein.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and in
the year first above written.
Sunrise Technologies International, Anesti Management LLC, a California
Inc., a Delaware corporation limited liability company
By: /s/ R. Xxxx Xxxxxxxx By: /s/ Xxxxx X. Xxxxxx
(Signature) (Signature)
R. Xxxx Xxxxxxxx Xxxxx X. Xxxxxx
Chairman General Manager
(Print name and Title) (Print name and Title)
