EXHIBIT 3.88
STRICTLY CONFIDENTIAL
June 26, 2001
InvestorLinks.com Inc.
Suite 301-2 Adelaide Street West
Toronto, Ontario
M5H 1L6
Attention: Mr. James Cassina
President and Director
Dear Mr. Cassina:
We understand that InvestorLinks.com Inc. (the "Company") would like Taurus
Capital Markets Ltd. ("Taurus") to act as exclusive advisors with respect to the
potential acquisition of (the "Purchase") api electronics inc. (the "Target").
The purpose of this letter is to confirm the appointment of Taurus as exclusive
financial advisors to the Company in connection with the Purchase and records
our mutual understanding and agreement regarding the scope and terms of our
engagement.
1. Appointment and Engagement
By its acceptance of this letter, the Company hereby appoints Taurus, and we
agree to act, as the exclusive financial advisor to the Company in respect of
the Purchase. The Taurus representative assigned to this project shall be P.
Gage Jull. The engagement of Taurus shall be for a period of four months
commencing on June 26, 2001, from which date this letter agreement shall be
deemed to become effective (the "Effective Date"), unless extended by the mutual
agreement of the Company and Taurus, or unless earlier terminated by either the
Company or Taurus upon giving 30 days written notice to that effect to the
other.
2. Services to be Rendered by Taurus.
Taurus will conduct due diligence on behalf of the Company and investigate such
aspects of the Target as may be available and advise the Company throughout the
Company's review, consideration, negotiation and structuring of the Purchase.
In carrying out this mandate Taurus will provide the following services to the
Company:
(a) visit the Target's plant and familiarize themselves with the business,
operations, properties, financial condition and prospects of the
Target;
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(b) identify and assess the benefits of the Purchase;
(c) consider the strategy of the Target in the context of comparable
public companies;
(c) assist management of the Company in making presentations to the
Company's board of directors concerning the result of the foregoing
review and analysis;
(e) attend such meetings with the Vendor as may be requested by the
Company.
The engagement of Taurus to perform any additional services, including for
example, providing financing for the Purchase, should that be required, will be
negotiated separate from this agreement and shall be set forth in, and subject
to the terms and conditions of, a separate or amending letter agreement.
3. Disclosure of our Advice and this Engagement.
The Company acknowledges that all oral or written interim opinions, advice and
materials provided by Taurus to the Company in connection with Taurus'
engagement hereunder are intended solely for the benefit and internal use of the
Company (including its management, directors and counsel) and the Company agrees
that no such interim opinion, advice or material shall be used for any other
purpose or reproduced, disseminated, quoted from or referred to at any time, in
any manner or for any purpose, nor shall any public references to Taurus or this
engagement be made by the Company (or such persons) without our prior written
consent in each specific instance; provided, however, that the foregoing shall
not prevent the Company (or any affiliate thereof that proceeds with the
implementation of the Purchase) from making such disclosure which, in the
judgment of the Company, upon the advice of counsel, is required under
applicable securities laws or policy statements or stock exchange rules and
provided in any event that Taurus is given a reasonable opportunity to review
and comment thereon prior to any such disclosure being made.
4. Consideration for Services.
The Company will pay Taurus a work fee of $15,000 plus out-of-pocket costs
associated with the trip to the Target's facility plus in the event the Purchase
is completed, the Company agrees to issue to Taurus 250,000 broker warrants for
Units on the same terms as the Units being issued to purchase the Target. These
broker warrants will exercisable into the Units and the underlying securities
will be freely trading shares and share purchase warrants of the Company.
5. Payment of Applicable Taxes
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Part of the amounts payable under paragraph 4 hereof may be subject to the
federal Goods and Services Tax and/or applicable provincial sales tax
(collectively, "tax"). Where tax is applicable, an additional amount equal to
the amount of tax owing thereon will be charged to the Company.
6. Indemnification.
The Company hereby agrees to indemnify Taurus in accordance with Schedule "A"
hereto, which Schedule forms part of this letter agreement and the consideration
for which is the entering into of this agreement. Such indemnity (the
"Indemnity") shall be executed and delivered to us on the execution of this
letter agreement and shall be in addition to, and not in substitution for, any
liability which the Company or any other party may have to us or other parties
may have apart from such Indemnity. If the Company terminates Taurus'
engagement hereunder and subsequently consummates a merger, acquisition or
similar transaction within six (6) months thereafter, with persons previously
identified in writing by Taurus the full consideration referred to in paragraph
4 will become due and payable to Taurus immediately.
7. Confidentiality.
We and each of our directors, officers, employees and agents will keep strictly
confidential the fact that such discussions are underway with the Purchasers and
will use only for the purpose of performing our obligations hereunder all
information, whether written or oral, acquired from the Company and its
subsidiaries and their respective agents and advisors in connection with our
work hereunder except information that was made available to the public prior to
our engagement or that thereafter becomes available to the public other than
through a breach by us of our obligations hereunder or was known to us prior to
our engagement and except to the extent that we are required by law or in
connection with legal process or regulatory proceedings to disclose such
information. If we are so required to disclose any such information, we will
provide the Company with prompt notice of such requirement so that the Company
may seek an appropriate protective order.
8. Survival of Terms.
The terms and conditions of this letter agreement and the Indemnity shall
survive the completion of our engagement hereunder. In addition,
representations, warranties, indemnities and other agreements provided by the
Company in connection with this letter agreement shall remain in full force and
effect regardless of any investigation made by us or on our behalf.
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9. Notices.
Any notice or other communication required or permitted to be given under this
letter agreement shall be in writing and shall be sufficiently given or made by
delivery or by telecopy or similar facsimile transmission (receipt confirmed) to
the respective parties as follows:
To the Company, to James Cassina at: InvestorLinks.com Inc.
Suite 301-2 Adelaide Street West
Toronto, Ontario
M5H 1L6
Fax: (416) 861-9623
To Taurus, to P. Gage Jull at: Taurus Capital Markets Ltd.
Scotia Plaza, Suite 3000
40 King Street West
Toronto, Ontario, M5H 3Y2
Fax: (416) 361-3405
Any notice so given shall be deemed conclusively to have been given and received
when so personally delivered or so telecopied or transmitted. Any party may
change its address by notice to the others in the manner set out above.
10. Governing Law.
The agreement resulting from the acceptance of this engagement letter shall be
governed by and construed in accordance with the laws of the Province of
Alberta.
If the foregoing is in accordance with your understanding, please indicate your
agreement to the above terms and conditions by signing the enclosed duplicate
copy of this letter and returning it to us.
Yours very truly,
TAURUS CAPITAL MARKETS LTD.
By: ________________________
P. Gage Jull
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AGREED AND ACCEPTED as of the date first mentioned above.
INVESTORLINKS.COM INC.
By: _________________________
James Cassina
SCHEDULE "A"
INVESTORLINKS.COM INC. (the "Indemnitor") hereby agrees to indemnify and hold
Taurus Capital Markets Ltd. and/or any of its affiliates and subsidiaries
(collectively, "Taurus") and each and every one of the directors, officers,
employees, consultants and shareholders of Taurus (hereinafter referred to as
the "Personnel") harmless from and against any and all expenses, losses, claims,
actions, damages or liabilities, joint or several (including the aggregate
amount paid in settlement of any actions, suits, proceedings or claims and the
fees and expenses of their counsel that may be incurred in advising with respect
to and/or defending any claim that may be made against Taurus) to which Taurus
and/or any Personnel may become subject or otherwise involved in any capacity
under any statute or common law or otherwise insofar as such expenses, losses,
claims, damages, liabilities or actions arise out of or are based, directly or
indirectly, upon the performance of professional services rendered to the
Indemnitor by Taurus and any Personnel hereunder or otherwise in connection with
the matters referred to in the attached letter agreement, provided, however,
that this indemnity shall not apply to the extent that a court of competent
jurisdiction in a final judgment that has become non-appealable shall determine
that:
(i) Taurus or any Personnel has been grossly negligent or dishonest or has
committed any fraudulent act in the course of such performance; and
(ii) the expenses, losses, claims, damages or liabilities, as to which
indemnification is claimed were directly caused by the gross
negligence, dishonesty or fraud referred to in (i).
The Indemnitor hereby agrees to waive any right it may have of first requiring
Taurus and/or any Personnel to proceed against or enforce any other right,
power, remedy, security or claim payment from any other person before claiming
under this indemnity.
If for any reason (other than the occurrence of any of the events itemized in
(i) and (ii) above), the foregoing indemnification is unavailable to Taurus
and/or any Personnel or insufficient to hold any of them harmless, then the
Indemnitor shall contribute to the amount paid or payable by Taurus and/or any
Personnel as a result of such expense, loss, claim, damage or liability in such
proportion as is appropriate to reflect not only the relative benefits received
by the Indemnitor on the one hand and Taurus on the other hand, but also the
relative fault of the Indemnitor and Taurus, as well as any other relevant
equitable considerations; provided that the Indemnitor shall in any event
contribute to the amount paid or payable by Taurus as a result of such expense,
loss, claim, damage or liability any excess of such amount over the amount of
the consideration received by Taurus pursuant to the attached letter agreement.
The Indemnitor agrees that in case (i) any legal proceeding shall be brought
against the Indemnitor and/or Taurus or any Personnel by any governmental
commission or regulatory authority or any stock exchange; or (ii) an entity
having regulatory authority, either domestic or foreign, shall investigate the
Indemnitor and/or Taurus, and any
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Personnel shall be required to testify in connection therewith or shall be
required to respond to procedures designed to discover information regarding, in
connection with, or by reason of the performance of professional services
rendered to the Indemnitor by Taurus, Taurus shall have the right to employ its
own counsel in connection therewith, and the reasonable fees and expenses of
such counsel as well as the reasonable costs (including an amount to reimburse
Taurus for time spent by Personnel in connection therewith on a per diem basis
based on normal consulting fees ) and out-of-pocket expenses incurred by
Personnel in connection therewith shall be paid by the Indemnitor as they occur.
Promptly after receipt of notice of the commencement of any legal proceeding
against Taurus or any Personnel or after receipt of notice of the commencement
of any investigation which is based, directly or indirectly, upon any matter in
respect of which indemnification may be sought from the Indemnitor, Taurus will
notify the Indemnitor in writing of the commencement thereof and the Indemnitor
shall undertake the investigation and defence thereof on behalf of Taurus and/or
any Personnel, as applicable, including the prompt employment of counsel
reasonably acceptable to Taurus or the applicable Personnel affected and the
payment of all reasonable expenses. Failure by Taurus to so notify the
Indemnitor shall not relieve the Indemnitor of its obligation of indemnification
hereunder unless (and only to the extent that) such failure results in a
forfeiture by the Indemnitor or material impairment of its substantive rights or
defences. The Indemnitor shall, throughout the course of any investigation as
contemplated herein, provide copies of all relevant documentation to Taurus,
will keep Taurus advised of the progress thereof and will discuss with Taurus
all significant actions proposed.
No admission of liability and no settlement of any action shall be made without
the prior written consent of the Indemnitor and Taurus or the Personnel
affected, such consent not to be unreasonably withheld.
Notwithstanding that the Indemnitor shall undertake the investigation and
defence of any action, Taurus or the Personnel affected shall have the right to
employ separate counsel in any such action and participate in the defence
thereof, but the fees and expenses of such counsel will be at the expense of
Taurus or the Personnel affected unless (a) employment of such counsel has been
authorized by the Indemnitor; (b) the Indemnitor shall not have assumed the
defence of the action within a reasonable period of time after receiving notice
of the action; (c) the named parties to any such action include both the
Indemnitor and Taurus or any Personnel and Taurus or the affected Personnel
shall have been advised by counsel that there may be a conflict of interest
between the Indemnitor and Taurus or the affected Personnel, as the case may be;
or (d) there are one or more legal defences available to Taurus or the affected
Personnel which are different from or in addition to those available to the
Indemnitor.
The indemnity and contribution obligations of the Indemnitor shall be in
addition to any liability which the Indemnitor may otherwise have, shall extend
upon the same terms and conditions to Taurus and the Personnel and shall be
binding upon and enure to the benefit of any successors, assigns, heirs and
personal representatives of the Indemnitor, Taurus and any Personnel. The
Indemnitor constitutes Taurus as trustee for the other
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indemnified parties as contemplated herein of the covenants of the Indemnitor
under this Schedule "A" and Taurus hereby agrees to accept such trust and to
hold and enforce such covenants on behalf of such persons. The foregoing
provisions shall survive the completion of professional services rendered under
the letter to which this is attached or any termination of the authorization
given by the letter to which this is attached.
AGREED AND ACCEPTED as of the 26th day of June 2001.
INVESTORLINKS.COM INC.
Per: James C. Cassina
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Authorized Signing Officer
TAURUS CAPITAL MARKETS LTD.
Per: P. Gage Jull
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Authorized Signing Officer