Unassociated Document


    INVESTMENT
      MANAGEMENT TRUST AGREEMENT

     

    This
      Agreement is made as of July 13, 2005 by and between Fortress America
      Acquisition Corporation (the “Company”) and Continental Stock Transfer &
Trust Company (“Trustee”).

     

    WHEREAS,
      the Company’s Registration Statement on Form S-1, No. 333-123504
      (“Registration Statement”), for its initial public offering of securities
      (“IPO”) has been declared effective as of the date hereof by the Securities and
      Exchange Commission (“Effective Date”); and

     

    WHEREAS,
      Sunrise Securities Corp. (“Sunrise”) is acting as the representative of the
      underwriters in the IPO; and

     

    WHEREAS,
      as described in the Company’s Registration Statement, and in accordance with the
      Company’s Certificate of Incorporation, $37,660,000 of the gross proceeds of the
      IPO ($43,309,000 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;

     

    IT
      IS
      AGREED:

     

    
      	
              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 at a branch of JPMorgan Chase NY Bank selected 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 any “Government Security.” As used herein, Government Security means
      any Treasury Bill issued by the United States, having a maturity of one hundred
      and eighty 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 the tax returns for the Trust
      Account;

     

    (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 Sunrise, 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 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, signed on
      behalf of the Company by its President or Chairman of the Board and Secretary,
      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. The Trustee understands and agrees that
      disbursements from the Trust Account shall be made only pursuant to a duly
      executed Termination Letter, together with the other documents referenced
      herein. In all cases, the Trustee shall provide Sunrise 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
      President or Chairman of the Board. 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 Company may participate in such action with its own counsel;
      and

     

    (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).

     

    
      
        	
                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 any kind with respect to,
      any
      of the Property unless and until it shall have received instructions from the
      Company given as provided herein to do so and the Company shall have advanced
      or
      guaranteed to it funds sufficient to pay any expenses incident
      thereto;

     

    (c)  Change
      the investment of any Property, other than in compliance with
      paragraph 1(c);

     

    (d)  Refund
      any depreciation in principal of any Property;

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

     

    (e)  Assume
      that the authority of any person designated by the Company to give instructions
      hereunder shall not be continuing unless provided otherwise in such designation,
      or unless the Company shall have delivered a written revocation of such
      authority to the Trustee;

     

    (f)  The
      other
      parties hereto or to anyone else for any action taken or omitted by it, or
      any
      action suffered by it to be taken or omitted, in good faith and in the exercise
      of its own best judgment, except for its gross negligence or willful misconduct.
      The Trustee may rely conclusively and shall be protected in acting upon any
      order, notice, demand, certificate, opinion or advice of counsel (including
      counsel chosen by the Trustee), statement, instrument, report or other paper
      or
      document (not only as to its due execution and the validity and effectiveness
      of
      its provisions, but also as to the truth and acceptability of any information
      therein contained) which is believed by the Trustee, in good faith, to be
      genuine and to be signed or presented by the proper person or persons. The
      Trustee shall not be bound by any notice or demand, or any waiver, modification,
      termination or rescission of this agreement or any of the terms hereof, unless
      evidenced by a written instrument delivered to the Trustee signed by the proper
      party or parties and, if the duties or rights of the Trustee are affected,
      unless it shall give its prior written consent thereto;

     

    (g)  Verify
      the correctness of the information set forth in the Registration Statement
      or to
      confirm or assure that any acquisition made by the Company or any other action
      taken by it is as contemplated by the Registration Statement; and

     

    (h)  Pay
      any
      taxes on behalf of the Trust Account (it being expressly understood that the
      Property shall not be used to pay any such taxes and that such taxes, if any,
      shall be paid by the Company from funds not held in the Trust
      Account).

     

    
      
        	
                4.

              	Termination.
                This Agreement shall terminate as
                follows:


      

          

    

    (a)  If
      the
      Trustee gives written notice to the Company that it desires to resign under
      this
      Agreement, the Company shall use its reasonable efforts to locate a successor
      trustee. At such time that the Company notifies the Trustee that a successor
      trustee has been appointed by the Company and has agreed to become subject
      to
      the terms of this Agreement, the Trustee shall transfer the management of the
      Trust Account to the successor trustee, including but not limited to the
      transfer of copies of the reports and statements relating to the Trust Account,
      whereupon this Agreement shall terminate; provided, however, that, in the event
      that the Company does not locate a successor trustee within ninety days of
      receipt of the resignation notice from the Trustee, the Trustee may submit
      an
      application to have the Property deposited with the United States District
      Court
      for the Southern District of New York and upon such deposit, the Trustee shall
      be immune from any liability whatsoever;

     

    (b)  At
      such
      time that the Trustee has completed the liquidation of the Trust Account in
      accordance with the provisions of paragraph 1(i) hereof, and distributed the
      Property in accordance with the provisions of the Termination Letter, this
      Agreement shall terminate except with respect to Paragraph 2(b); or

     

    (c)  On
      such
      date after July 13, 2007 when the Trustee deposits the Property with the United
      States District Court for the Southern District of New York in the event that,
      prior to such date, the Trustee has not received a Termination Letter from
      the
      Company pursuant to paragraph 1(i).

    
       

      
        
          	
                  5.

                	Miscellaneous.


        

          

      

    

    (a)  The
      Company and the Trustee each acknowledge that the Trustee will follow the
      security procedures set forth below with respect to funds transferred from
      the
      Trust Account. Upon receipt of written instructions, the Trustee will confirm
      such instructions with an Authorized Individual at an Authorized Telephone
      Number listed on the attached Exhibit C.  The Company and the Trustee
      will each restrict access to confidential information relating to such security
      procedures to authorized persons. Each party must notify the other party
      immediately if it has reason to believe unauthorized persons may have obtained
      access to such information, or of any change in its authorized personnel. In
      executing funds transfers, the Trustee will rely upon account numbers or other
      identifying numbers of a beneficiary, beneficiary’s bank or intermediary bank,
      rather than names. The Trustee shall not be liable for any loss, liability
      or
      expense resulting from any error in an account number or other identifying
      number, provided it has accurately transmitted the numbers
      provided.

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

    (b)  This
      Agreement shall be governed by and construed and enforced in accordance with
      the
      laws of the State of New York, without giving effect to conflict of laws. It
      may
      be executed in several counterparts, each one of which shall constitute an
      original, and together shall constitute but one instrument.

     

    (c)  This
      Agreement contains the entire agreement and understanding of the parties hereto
      with respect to the subject matter hereof. This Agreement or any provision
      hereof may only be changed, amended or modified by a writing signed by each
      of
      the parties hereto; provided, however, that no such change, amendment or
      modification may be made without the prior written consent of Sunrise. As to
      any
      claim, cross-claim or counterclaim in any way relating to this Agreement, each
      party waives the right to trial by jury.

     

    (d)  The
      parties hereto consent to the jurisdiction and venue of any state or federal
      court located in the City of New York for purposes of resolving any disputes
      hereunder.

     

    (e)  Any
      notice, consent or request to be given in connection with any of the terms
      or
      provisions of this Agreement shall be in writing and shall be sent by express
      mail or similar private courier service, by certified mail (return receipt
      requested), by hand delivery or by facsimile transmission:

     

     

    
      	 	If to the Trustee, to:
	 	 	 
	 	 	Continental Stock Transfer 
	 	 	& Trust Company 
	 	 	17 Battery Place
	 	 	New York, NY 10004
	 	 	Attn: Steve Nelson
	 	 	Fax No.: (212) 616-7620
	 	 	 
	 	If to the Company, to:
	 	 
	 	 	Fortress America Acquisition
              Corporation
	 	 	3 Bethesda Metro Center
	 	 	Suite 700
	 	 	Bethesda, MD 20814
	 	 	Attn: C. Thomas McMillen,
              Chairman
	 	 	Fax No.:
	 	 	 
	 	in either case with a copy
              to:
	 	 	 
	 	 	Sunrise Securities Corp.
	 	 	641 Lexington Avenue, 25th
              Floor
	 	 	New York, New York 10022
	 	 	Attn: Nathan Low, President
	 	 	Fax No.: (212)
              750-7277


    

     

    (f)  This
      Agreement may not be assigned by the Trustee without the prior consent of the
      Company.

     

    (g)  Each
      of
      the Trustee and the Company hereby represents that it has the full right and
      power and has been duly authorized to enter into this Agreement and to perform
      its respective obligations as contemplated hereunder. The Trustee acknowledges
      and agrees that it shall not make any claims or proceed against the Trust
      Account, including by way of set-off, and shall not be entitled to any funds
      in
      the Trust Account under any circumstance.

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    


    IN
      WITNESS WHEREOF, the parties have duly executed this Investment Management
      Trust
      Agreement as of the date first written above.

     

     

    
      	 	CONTINENTAL STOCK
              TRANSFER
	 	 & TRUST COMPANY, as
              Trustee
	 	 	 
	 	By:  	/s/ Steven Nelson  
	 	 	Name: Steven Nelson 
	 	 	Title: Chairman 
	 	 	 
	 	FORTRESS AMERICA ACQUISITION
              CORPORATION
	 	 	 
	 	By:  	/s/ C. Thomas McMillen
	 	 	Name: C. Thomas McMillen 
	 	 	Title:
              Chairman 


    

     

    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    

    EXHIBIT
      A

     

    [Letterhead
      of Company]

     

    [Insert
      date]

     

    Continental
      Stock Transfer

    &
      Trust Company

    17
      Battery Place

    New
      York,
      NY 10004

    Attn:
      President

     

    
      	
              Re:

            	
              Trust
                Account No. Termination Letter

            


    

     

    Gentlemen:

     

    Pursuant
      to paragraph 1(i) of the Investment Management Trust Agreement between Fortress
      America Acquisition Corporation (“Company”) and Continental Stock Transfer &
Trust Company (“Trustee”), dated as of July 13, 2005 (“Trust Agreement”), this
      is to advise you that the Company has entered into an agreement (“Business
      Agreement”)
      with            
 (“Target Business”) to consummate a business combination with Target
      Business (“Business Combination”) on or about
      [insert date].
      The
      Company shall notify you at least 48 hours in advance of the actual date of
      the
      consummation of the Business Combination (“Consummation Date”).

     

    In
      accordance with the terms of the Trust Agreement, we hereby authorize you to
      commence liquidation of the Trust Account to the effect that, on the
      Consummation Date, all of funds held in the Trust Account will be immediately
      available for transfer to the account or accounts that the Company shall direct
      on the Consummation Date.

     

    On
      the
      Consummation Date (i) counsel for the Company shall deliver to you written
      notification that (a) the Business Combination has been consummated and (b)
      if
      applicable, the provisions of Section 11-51-302(6) and Rule 51-3.4 of the
      Colorado Statute have been met, and (ii) the Company shall deliver to you
      written instructions with respect to the transfer of the funds held in the
      Trust
      Account (“Instruction Letter”). You are hereby directed and authorized to
      transfer the funds held in the Trust Account immediately upon your receipt
      of
      the counsel’s letter and the Instruction Letter, in accordance with the terms of
      the Instruction Letter. In the event that certain deposits held in the Trust
      Account may not be liquidated by the Consummation Date without penalty, you
      will
      notify the Company of the same and the Company shall direct you as to whether
      such funds should remain in the Trust Account and distributed after the
      Consummation Date to the Company. Upon the distribution of all the funds in
      the
      Trust Account pursuant to the terms hereof, the Trust Agreement shall be
      terminated.

     

    In
      the
      event that the Business Combination is not consummated on the Consummation
      Date
      described in the notice thereof and we have not notified you on or before the
      original Consummation Date of a new Consummation Date, then the funds held
      in
      the Trust Account shall be reinvested as provided in the Trust Agreement on
      the
      business day immediately following the Consummation Date as set forth in the
      notice.

     

    
      	 	 	Very truly yours, 
	 	 	 
	 	 	FORTRESS AMERICA ACQUISITION
              CORPORATION 
	 	 	 
	 	 	By:________________________________________ 
	 	 	 
	 	 	By:________________________________________ 


    

     

     

    
      
        
        

      

      
        A-1

        
          

        

      

      
        
        

      

    

     

    EXHIBIT
      B

     

    [Letterhead
      of Company]

     

    [Insert
      date]

     

    Continental
      Stock Transfer

    &
      Trust Company

    17
      Battery Place

    New
      York,
      NY 10004

    Attn:
      President

     

    
      	
              Re:

            	
              Trust
                Account No. Termination Letter

            


    

     

    Gentlemen:

     

    Pursuant
      to paragraph 1(i) of the Investment Management Trust Agreement between Fortress
      America Acquisition Corporation (“Company”) and Continental Stock Transfer &
Trust Company (“Trustee”), dated as of July 13, 2005 (“Trust Agreement”), this
      is to advise you that the Board of Directors of the Company has voted to
      dissolve and liquidate the Trust Account. Attached hereto is a copy of the
      minutes of the meeting of the Board of Directors of the Company relating
      thereto, certified by the Secretary of the Company as true and correct and
      in
      full force and effect.

     

    In
      accordance with the terms of the Trust Agreement, we hereby (a) certify to
      you
      that, if applicable, the provisions of Section 11-51-302(6) and Rule 51-3.4
      of the Colorado Statute have been met and (b) authorize you, to commence
      liquidation of the Trust Account. You will notify the Company and JPMorgan
      Chase
      NY Bank (“Designated Paying Agent”) in writing as to when all of the funds in
      the Trust Account will be available for immediate transfer (“Transfer Date”).
      The Designated Paying Agent shall thereafter notify you as to the account or
      accounts of the Designated Paying Agent that the funds in the Trust Account
      should be transferred to on the Transfer Date so that the Designated Paying
      Agent may commence distribution of such funds in accordance with the Company’s
      instructions. You shall have no obligation to oversee the Designated Paying
      Agent’s distribution of the funds. Upon the payment to the Designated Paying
      Agent of all the funds in the Trust Account, the Trust Agreement shall be
      terminated.

     

    
       

      
        	 	 	Very truly yours, 
	 	 	 
	 	 	FORTRESS AMERICA ACQUISITION
                CORPORATION 
	 	 	 
	 	 	By:________________________________________ 
	 	 	 
	 	 	By:________________________________________ 


      

       

    

     

    
      
        
        

      

      
        B-1

        
          

        

      

      
        
        

      

    


    EXHIBIT
      C

     

    
      	
              AUTHORIZED
                INDIVIDUAL(S)

            	 	
              AUTHORIZED

            
	
              FOR
                TELEPHONE CALL BACK

            	 	
              TELEPHONE
                NUMBER(S)

            
	
               

            	
               

            	
               

            
	
              Company:

            	
               

            	
               

            
	
               

            	
               

            	
               

            
	
              Fortress
                America Acquisition Corporation

            	
               

            	
               

            
	
              3
                Bethesda Metro Center

              Suite
                700

              Bethesda,
                MD 20814

            	
               

            	
               

            
	
              Attn:
                C. Thomas McMillen or Harvey Weiss

            	
               

            	
              [Telephone]

            
	
               

            	
               

            	
               

            
	
              Trustee:

            	
               

            	
               

            
	
               

            	
               

            	
               

            
	
              Continental
                Stock Transfer

            	
               

            	
               

            
	
              &
                Trust Company

            	
               

            	
               

            
	
              17
                Battery Place

            	
               

            	
               

            
	
              New
                York, NY 10004

            	
               

            	
               

            
	
              Attn:
                Steven G. Nelson, Chairman

            	
               

            	
              (212)
                509-4000

            


    

    


     

    
      
        
        

      

      
        C-1