INVESTMENT MANAGEMENT TRUST
AGREEMENT
This Agreement
is made as of _____________, 2006 by and between Fortissimo
Acquisition Corp. (the “Company”) and American Stock
Transfer & Trust Company (“Trustee”).
WHEREAS, the
Company’s registration statement on Form S-1,
No. 333-_______ (“Registration Statement”), for
its initial public offering of securities (“IPO”) has
been declared effective as of the date hereof (“Effective
Date”) by the Securities and Exchange Commission (capitalized
terms used herein and not otherwise defined shall have the meanings
set forth in the Registration Statement); and
WHEREAS,
EarlyBirdCapital, Inc. (“EBC”) is acting as the
representative of the underwriters in the IPO; and
WHEREAS, as
described in the Registration Statement, and in accordance with the
Company’s Certificate of Incorporation, $22,920,000 of the
gross proceeds of the IPO and sale of the Insider Units (as defined
in the Registration Statement) ($26,358,000 if the underwriters
over-allotment option is exercised in full) will be delivered to
the Trustee to be deposited and held in a trust account for the
benefit of the Company and the holders of the Company’s
common stock, par value $.0001 per share, issued in the IPO as
hereinafter provided and in the event the Units are registered in
Colorado, pursuant to Section 11-51-302(6) of the Colorado Revised
Statutes. A copy of the Colorado Statute is attached hereto and
made a part hereof (the amount to be delivered to the Trustee will
be referred to herein as the “Property”; the
stockholders for whose benefit the Trustee shall hold the Property
will be referred to as the “Public Stockholders,” and
the Public Stockholders and the Company will be referred to
together as the “Beneficiaries”); and
WHEREAS, the
Company and the Trustee desire to enter into this Agreement to set
forth the terms and conditions pursuant to which the Trustee shall
hold the Property;
1.
Agreements and Covenants of
Trustee . The Trustee
hereby agrees and covenants to:
(a)
Hold the Property in trust for the
Beneficiaries in accordance with the terms of this Agreement,
including the terms of Section 11-51-302(6) of the Colorado
Statute, in a segregated trust account (“Trust
Account”) established by the Trustee;
(b)
Manage, supervise and administer
the Trust Account subject to the terms and conditions set forth
herein;
(c)
In a timely manner, upon the
instruction of the Company, to invest and reinvest the Property in
United States “government securities” within the
meaning of Section 2(a)(16) of the Investment Company Act of 1940
having a maturity of 180 days or less;
(d)
Collect and receive, when due, all
principal and income arising from the Property, which shall become
part of the “Property,” as such term is used
herein;
(e)
Notify the Company of all
communications received by it with respect to any Property
requiring action by the Company;
(f)
Supply any necessary information or
documents as may be requested by the Company in connection with the
Company’s preparation of its returns;
(g)
Participate in any plan or
proceeding for protecting or enforcing any right or interest
arising from the Property if, as and when instructed by the Company
to do so;
(h)
Render to the Company and to EBC,
and to such other person as the Company may instruct, monthly
written statements of the activities of and amounts in the Trust
Account reflecting all receipts and disbursements of the Trust
Account; and
(i)
Commence liquidation of the Trust
Account only after and promptly after receipt of, and only in
accordance with, the terms of a letter (“Termination
Letter”), in a form substantially similar to that attached
hereto as either Exhibit A or Exhibit B hereto, signed on
behalf of the Company by its Chairman of the Board or Vice
President and Secretary or Assistant Secretary and affirmed by
counsel for the Company, and complete the liquidation of the Trust
Account and distribute the Property in the Trust Account only as
directed in the Termination Letter and the other documents referred
to therein; provided, however , that in the event that a
Termination Letter has not been received by the Trustee by the
18-month anniversary of the closing (“Closing”) of the
IPO (“First Date”), or the 24-month anniversary of the
Closing (“Last Date”) in the event that a letter of
intent, agreement in principle or definitive agreement for a
Business Combination has been executed on or prior to the First
Date but the Business Combination has not been consummated by the
First Date, the Trust Account shall be liquidated in accordance
with the procedures set forth in the Termination Letter attached as
Exhibit B hereto to the stockholders of record on the record date
established by the Company for such purpose. The Company shall set
the record date to be within ten days of the Last Date, or as soon
thereafter as reasonably practicable and legally permissible. In
all cases, the Trustee shall provide EBC with a copy of any
Termination Letters and/or any other correspondence that it
receives with respect to any proposed withdrawal from the Trust
Account promptly after it receives same.
2.
Agreements and Covenants of the
Company . The Company
hereby agrees and covenants to:
(a)
Give all instructions to the
Trustee hereunder in writing, signed by the Company’s
Chairman of the Board, Chief Executive Officer or Vice President.
In addition, except with respect to its duties under paragraph 1(i)
above, the Trustee shall be entitled to rely on, and shall be
protected in relying on, any verbal or telephonic advice or
instruction which it in good faith believes to be given by any one
of the persons authorized above to give written instructions,
provided that the Company shall promptly confirm such instructions
in writing;
(b)
Hold the Trustee harmless and
indemnify the Trustee from and against, any and all expenses,
including reasonable counsel fees and disbursements, or loss
suffered by the Trustee in connection with any action, suit or
other proceeding brought against the Trustee involving any claim,
or in connection with any claim or demand which in any way arises
out of or relates to this Agreement, the services of the Trustee
hereunder, or the Property or any income earned from investment of
the Property, except for expenses and losses resulting from the
Trustee's gross negligence or willful misconduct. Promptly after
the receipt by the Trustee of notice of demand or claim or the
commencement of any action, suit or proceeding, pursuant to which
the Trustee intends to seek indemnification under this paragraph,
it shall notify the Company in writing of such claim (hereinafter
referred to as the “Indemnified Claim”). The Trustee
shall have the right to conduct and manage the defense against such
Indemnified Claim, provided, that the Trustee shall obtain the
consent of the Company with respect to the selection of counsel,
which consent shall not be unreasonably withheld. The Trustee may
not agree to settle any Indemnified Claim without the prior written
consent of the Company unless such settlement includes a full
release of the Company with respect to such Indemnified Claim. The
Company may participate in such action with its own
counsel;
(c)
Pay the Trustee an initial
acceptance fee of $1,000 and an annual fee of $3,000 (it being
expressly understood that the Property shall not be used to pay
such fee). The Company shall pay the Trustee the initial acceptance
fee and first year’s fee at the consummation of the IPO and
thereafter on the anniversary of the Effective Date. The Trustee
shall refund to the Company the fee (on a pro rata basis) with
respect to any period after the liquidation of the Trust Fund. The
Company shall not be responsible for any other fees or charges of
the Trustee except as may be provided in paragraph 2(b) hereof
(it being expressly understood that the Property shall not be used
to make any payments to the Trustee under such
paragraph);
(d)
Provide to the Trustee any letter
of intent, agreement in principle or definitive agreement for a
Business Combination that is executed on or prior to the First
Date; and
(e)
In connection with any vote of the
Company’s stockholders regarding a Business Combination,
provide to the Trustee an affidavit or certificate of a firm
regularly engaged in the business of soliciting proxies and/or
tabulating stockholder votes (which firm may be the Trustee)
verifying the vote of the Company’s stockholders regarding
such Business Combination.
3.
Limitations of
Liability . The Trustee
shall have no responsibility or liability to:
(a)
Take any action with respect to the
Property, other than as directed in paragraph 1 hereof and the
Trustee shall have no liability to any party except for liability
arising out of its own gross negligence or willful
misconduct;
(b)
Institute any proceeding for the
collection of any principal and income arising from, or institute,
appear in or defend any proceeding of a
