exv10w5






EXHIBIT 10.5




AMENDED AND RESTATED EMPLOYMENT AGREEMENT




          THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the “Agreement”) dated as of January 1, 2011
(the “Effective Date”), is entered into by and between CPM ACQUISITION CORP., a Delaware
corporation (the “Company”) and Douglas Ostrich (the “Executive”).




RECITALS




          WHEREAS, the Company and the Executive have heretofore entered into an employment agreement
dated December 31, 2003 (the “Prior Agreement”); and




          WHEREAS, the Company and the Executive deem it to be in their respective best interests to
enter into a new agreement providing for the Company’s employment of Executive on the terms and
conditions set forth below.




          NOW, THEREFORE, in consideration of the foregoing and the mutual covenants, representations,
agreements, and promises set forth herein and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties agree to amend and restate the Prior
Agreement as follows:




AGREEMENT




     1. Employment



          1.1. Term. The Company agrees to employ the Executive as Chief Financial Officer of
the Company and the Executive agrees to accept such employment, for a period of three (3) years
commencing as of the date of this Agreement (the “Term”). After the third anniversary of the
Effective Date, the Term shall be automatically extended for
successive 12-month



 









 






periods, unless one
party to this Agreement provides written notice of non-renewal to the other party at least thirty
(30) days before the last day of the Term, as extended.




          1.2. Duties. During the Term, as Chief Financial Officer of the Company, Executive
shall perform such duties and functions as are assigned to him from time to time by the Board of
Directors of the Company (the “Board”) and/or Chief Executive Officer of the Company (the “CEO”)
that are consistent with Executive’s title and position, and Executive shall adhere to all of the
Company’s policies and procedures as they may from time to time be amended.




          1.3. Time Devoted to Employment. Executive agrees to devote his entire working time,
attention and efforts to the Company and its subsidiaries, will use his best, good faith efforts to
promote the success of the Company’s business, and will cooperate fully with the Board in the
advancement of the best interests of the Company.




          1.4. Location of Employment. Executive’s principal place of employment shall be at the
Company’s offices located in Waterloo, Iowa or at another office which the Company establishes as
its principal executive office within a radius of one hundred and fifty (150) miles of Waterloo,
Iowa.




     2. Compensation and Related Matters.



          2.1. Base Salary. As compensation for services rendered hereunder, effective as of
January 1, 2011, the Company shall pay the Executive an annual base salary of One Hundred
Ninety-Eight Thousand Six Hundred and Forty Dollars ($198,640) or such higher amount as the
Company, in its sole judgment and discretion, may provide during the Term (the




2









 







“Annual Base”),
which amount shall be paid in accordance with the Company’s customary payroll practices.




          2.2. Performance Bonus. The Company shall award a bonus to Executive on each September
30 during the term, which bonus shall be comprised of elements determined by the
Board of Directors, or a subcommittee thereof, in their sole judgment and discretion.




          2.3. Benefits. The Executive will be eligible to participate in the Company’s employee
benefit plans made available to similarly situated employees of the Company, including medical,
dental, life insurance, and 401(k) plan, all in accordance with Company policies and subject to the
terms of those benefit plans, as they may from time to time be amended. The Executive will be
afforded the same vacations as other executives.




          2.4. Withholding. The Company shall make such deductions and withhold such amounts
from each payment made to Executive under this Agreement as may be required from time to time by
law, governmental regulation or order and in accordance with the Company’s customary payroll
practices.




          2.5. Expenses. The Company will reimburse the Executive for expenses to the extent
provided by the policies and procedures established by the Company, and to the extent such
reimbursement constitutes Deferred Compensation, the reimbursement will be subject to the
provisions of Treas. Reg. §1.409A-3(i)(1)(iv). For purposes of this Agreement, the term
“Deferred Compensation” means payments or benefits that would be considered to be provided under a
nonqualified deferred compensation plan as that term is defined in Treas. Reg. §1.409A-1.




3









 








     3. Termination of Employment.



          3.1. Termination. The Executive’s employment hereunder may be terminated prior to the
end of the Term of this Agreement under the following circumstances:




               (a) Death. The Executive’s employment hereunder shall terminate upon his death.



               (b) Disability. If, as a result of the incapacity of the Executive due to physical or
mental illness, the Executive shall have been absent from the full-time performance of his duties
with the Company for a time equivalent to six (6) months during any eighteen (18) month period, his
employment may be terminated by the Company for “Disability.”



               (c) Cause. Termination by the Company of the employment of the Executive for “Cause”
shall mean termination based upon the Executive’s (i) willful breach or willful neglect of his
duties and responsibilities, (ii) criminal conviction occurring on or after the execution of this
Agreement, (iii) material breach of this Agreement, (iv) acts of fraud, dishonesty,
misappropriation, embezzlement or moral turpitude, (v) violation of any material Legal Requirement
(as defined in Section 8.2 below), (vi) breach of his duty of loyalty or fiduciary duties,
or (vii) willful failure to comply with the Company’s reasonable orders or directives or the
Company’s reasonable rules, regulations, policies, procedures or practices;
provided, however, that in the case of any act or failure to act described in
sub-sections (i), (iii), (v), (vi), or (vii) above, such act or failure to act shall not constitute
Cause if, within ten (10) days after Notice of Termination is given to the Executive by the
Company, Executive has corrected such act or failure to act (if it is capable of correction) to the
satisfaction of the Board



4









 







and the Board is otherwise satisfied that termination of the Executive’s
employment is not in the best interests of the Company.



               (d) Good Reason. The Executive may terminate his employment during the Term of this
Agreement for “Good Reason.” Good Reason shall mean the Company’s material breach of this
Agreement, including a material reduction in the Executive’s duties or authority or a requirement
that Executive relocate to an area outside of a radius of one hundred fifty (150) miles of
Waterloo, Iowa, which breach is not cured by the Company within ten (10) days after Notice of
Termination is given by the Executive.



          3.2. Date of Termination. “Date of Termination” shall mean (a) the expiration of the
Term, (b) if the Executive’s employment is terminated due to his death, the date of his death, (c)
if the Executive’s employment is terminated due to Executive’s Disability, ten (10) days after
Notice of Termination is given to the Executive, and (d) if the Executive’s employment is otherwise
terminated by the Company or by Executive, the date upon which the Cause or Good Reason event
occurs or such other date set forth in the Notice of Termination. For the avoidance of doubt, the
Date of Termination will in all events be the date on which occurs the Executive’s “separation from
service” as that term is defined in Treas. Reg. §1.409A-1(h). Nothing in this Section shall be
deemed to diminish the Company’s right to cause the Executive to cease performing his duties and
responsibilities as a President and employee of the
Company at any time (“Termination Without Cause”), or to limit either party’s right to give a
Notice of Termination at any time during the Term of this Agreement.




          3.3. Notice of Termination. Any purported termination of the Executive’s employment by
the Company or by the Executive shall be communicated by written Notice of




5









 







Termination to the other
party hereto in accordance with Section 10.4 of this Agreement. For purposes of this
Agreement, a “Notice of Termination” shall mean a written notice which shall indicate the specific
termination provision in this Agreement relied upon, and shall set forth in reasonable detail the
facts and circumstances claimed to provide a basis for termination of the Executive’s employment
under the provision so indicated.




     4. Compensation Upon Termination.



          4.1. Disability. During any period in which the Executive fails to perform his
full-time duties with the Company as a result of incapacity due to physical or mental illness, the
Executive shall continue to receive (a) his Annual Base at the rate in effect at the commencement
of any such period less any compensation payable to the Executive under the applicable disability
insurance plan of the Company during such period, until the Executive’s employment is terminated
pursuant to Section 3 of this Agreement; and (b) upon the Executive’s Date of Termination
pursuant to Section 3(b) of this Agreement, the Company shall pay to the Executive his
Annual Base for a period of three years as if Executive continued his employment with the Company
during that period, provided that for any month in which the Executive is entitled to disability
benefits pursuant to insurance coverage where the Company has paid the insurance premiums, the
amount of the benefit payable for that month under this subparagraph 4.1(b) will be
reduced, but not below zero, by the amount of such insurance benefits for the month. Further,
the Executive will be entitled to other benefits to the extent provided under the Company’s
insurance and other benefits programs as in effect from time to time. The Company shall retain the
right to provide (entirely at its own cost) at any time, or from time to time, third party
insurance coverage to provide insurance benefits for, and in lieu of, all or a portion of the
benefits set forth above in subparagraph 4.1(b). For the avoidance of doubt, if the
Executive is




6









 







entitled to benefits under subparagraph 4.1(b), he shall not be treated as
having terminated under Section 4.4 (relating to termination for Good Reason or without
Cause) or Section 4.5 (relating to termination following non-renewal), and shall not be
eligible for benefits under those sections.




          4.2. Death. In the event the Executive’s employment is terminated by reason of his
death, the Executive’s beneficiary or estate shall be compensated as follows: (a) all earned, but
unpaid amounts of Annual Base, if any, to which the Executive was entitled as of the Date of
Termination shall be paid in accordance with the terms of this Agreement to the Executive’s
beneficiary, or, if no beneficiary has been designated by the Executive in a written notice prior
to his death, to the Executive’s estate; and (b) within thirty (30) days after the Date of
Termination, the Company shall pay Executive’s beneficiary or estate an amount equivalent to three
year’s Annual Base (less any amounts received by Executive pursuant to insurance coverage where the
Company has paid the insurance premiums). Thereafter, the Company shall have no further obligations
to the Executive’s beneficiary or estate under this Agreement. The Company shall retain the right
to provide (entirely at its own cost) at any time, or from time to time, third party insurance
coverage to provide insurance benefits for, and in lieu of, all or a portion of the benefits set
forth above in subparagraph 4.2(b).




          4.3. Cause; Termination by Executive Without Good Reason. In the event the Executive’s
employment is terminated by the Company for Cause or by the Executive without
Good Reason, the Company shall pay the Executive all earned, but unpaid amounts of his Annual
Base, if any, to which the Executive was entitled as of the Date of Termination and the Company
shall have no further obligations to the Executive under this Agreement.




7









 








          4.4. Without Cause; Termination by Executive for Good Reason. In the event the
Executive’s employment is terminated by the Company without Cause or by the Executive for Good
Reason, the Company shall pay the Executive all earned, but unpaid amounts of his Annual Base, if
any, to which Executive was entitled as of the Date of Termination. In addition, the Company shall
pay to the Executive his Annual Base for a period of 2 years as if Executive continued his
employment with the Company. In addition, the Executive shall continue to receive medical coverage
at the Company’s expense for a period of two years; provided, however, his right to
receive medical coverage shall cease at such time as he obtains other employment.




          4.5. Termination Due to Delivery of Notice of Non-Renewal by the Company. In the event
the Executive’s employment is terminated by the delivery of written notice of non-renewal of the
Term by the Company pursuant to Section 1.1, the Company shall pay the Executive all
earned, but unpaid amounts of his Annual Base, if any, to which Executive was entitled as of the
Date of Termination. In addition, the Company shall pay to the Executive his Annual Base for a
period of 2 years as if Executive continued his employment with the Company. In addition, the
Executive shall continue to receive medical coverage at the Company’s expense for a period of two
years; provided, however, his right to receive medical coverage shall cease at such
time as he obtains other employment.




          4.6 Delay of Certain Termination Payments. If the Executive is a Specified Employee
at the Date of Termination, payments of benefits under this Agreement with respect to a Date of
Termination that constitute Deferred Compensation may not be paid before the date that is six
months after the Date of Termination to the extent required under Treas. Reg. §1.409A-3(i)(2) or,
if earlier, the date of death of the Executive. At the end of the six-month




8









 







period described in
the preceding sentence, amounts that could not be paid by reason of the limitation in this
Section 4.6 shall be paid on the first day of the seventh month following the Date of
Termination. For purposes of this Agreement, the term “Specified Employee” shall be defined in
accordance with Treas. Reg. §1.409A-1(i) (which generally applies only when the stock of the
Company is publicly traded) and such rules as may be established by the Chief Executive Officer of
the Company or his or her delegate from time to time.




     5. Indemnification.



          5.1. General. To the extent permitted by applicable law, the Company shall indemnify
the Executive if the Executive is or was a party to any threatened, pending or completed action,
suit, arbitration or proceeding, whether civil, criminal, administrative or investigative , by
reason of the fact that he is or was, (i) a director, officer, employee or agent of the Company or
any of its subsidiaries or affiliates, or (ii) serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture, trust or other
enterprise, against all expenses (including attorneys’ fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner that he reasonably believed to be in or not
opposed to the best interests of the Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful, provided,
however, that the Company shall not indemnify the Executive for any act of fraud or
willful misconduct by the Executive. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the Executive did not act in good faith
and in a manner which he reasonably believed to be in or not opposed to the best interests of the
Company, and, with




9









 







respect to any criminal action or proceeding, had reasonable cause to believe
that his conduct was unlawful.




          5.2. Payment of Expenses. The Executive shall be indemnified against expenses
(including attorneys’ fees) actually and reasonably incurred by the Executive in connection with
the defense of any civil, criminal, administrative or investigative action, suit or proceeding with
respect to which he is entitled to indemnification under Section 5.1, or in the defense of
any claim, issue or matter referred to therein.




          5.3. Advance of Expenses. Expenses (including reasonable attorneys’ fees) incurred by
the Executive in defending any civil, criminal, administrative or investigative action, suit or
proceeding described in Section 5.1 hereof shall be paid by the Company in advance of the
final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf
of the Executive to repay such amount if it shall ultimately be finally adjudicated by court order
or judgment from which no further right of appeal exists that he or she is not entitled to be
indemnified by the Company as authorized under this Agreement.




          5.4. Scope. Notwithstanding any other provision of this Agreement, the Company hereby
agrees to indemnify the Executive for any threatened, pending or completed action, suit,
arbitration or proceeding described in Section 5.1 to the fullest extent permitted from
time to time by the Delaware General Corporation Law as the same presently exists or may
hereafter be amended (but, if permitted by applicable law, in the case of any amendment, only to
the extent that such amendment permits the Company to provide broader indemnification rights than
permitted prior to such amendment) or any other applicable law as presently or hereafter in effect.
In the event of any change in any applicable law, statute or rule which narrows the right




10









 







of a
Delaware corporation to indemnify a member of its board of directors, an officer or other corporate
agent, such changes, to the extent not otherwise required by such law, statute or rule to be
applied to this Agreement, shall have no effect on this Agreement or the parties’ rights and
obligations hereunder.




          5.5. Nonexclusivity. The indemnification and advancement of expenses provided by or
granted pursuant to this Agreement shall not be deemed exclusive of any other rights to which the
Executive may be entitled under the Company’s Certificate of Incorporation (as the same may be
further amended from time to time), the Company’s By-Laws (as the same may be amended from time to
time), any other agreement or contract, including director and officer liability insurance
currently in effect, any vote of stockholders or disinterested directors or otherwise, both as to
action in his official capacity and as to action in another capacity while holding such office.




     6. Executive’s Covenants.



          6.1. Confidential Information. Executive acknowledges that during his employment with
the Company, he shall be exposed to or given access to Confidential Information (as defined below
in Section 8.1). The Executive agrees, without limitation in time or until such
information shall become public other than by the Executive’s unauthorized
disclosure (which shall not include disclosures as are necessary or appropriate in connection
with the performance by the Executive of his duties as Chief Financial Officer of the Company), to
maintain the confidentiality of the Confidential Information and refrain from divulging,
disclosing, or otherwise using in any respect the Confidential Information to the detriment of the
Company and any of its subsidiaries, affiliates, successors or assigns, or for any other purpose or


11









 







no purpose. Notwithstanding the foregoing, there shall be no prohibition against the Executive
using the general skill and knowledge which he has acquired as an employee of the Company.




          6.2. Ownership of Intellectual Property. Executive acknowledges and agrees that all
work performed, and all ideas, concepts, materials, products, software, documentation, designs,
architectures, specifications, flow charts, test data, programmer’s notes, deliverables,
improvements, discoveries, methods, processes, or inventions, trade secrets or other subject matter
related to the Company’s business (collectively, “Materials”) conceived, developed or prepared by
him, alone or with others, during the period of his employment or other relationship with the
Company in written, oral, electronic, photographic, optical or any other form, are the property of
the Company and its successors or assigns, and all rights, title and interest therein shall vest in
the Company and its successors or assigns, and all Materials shall be deemed to be works made for
hire and made in the course of his employment or other relationship with the Company. To the extent
that title to any Materials has not or may not, by operation of law, vest in the Company and its
successors or assigns, or such Materials may not be considered works made for hire, Executive
hereby irrevocably assigns all rights, title and interest therein to the Company and its successors
or assigns. All Materials belong exclusively to the Company and its successors or assigns, with the
Company and its successors or assigns having the right to obtain and to hold in its or their own
name, copyrights, patents, trademarks, applications, registrations
or such other protection as may be appropriate to the subject matter, and any extensions and
renewals thereof. Executive hereby grants to the Company and its successors or assigns an
irrevocable power of attorney to perform any and all acts and execute any and all documents and
instruments on his behalf as the Company and its successors or assigns may deem appropriate in
order to perfect or enforce the rights defined in this Section. Executive further agrees to give
the




12









 







Company and its successors or assigns, or any person designated by the Company and its
successors or assigns, at the Company’s or its successors’ or assigns’ expense, any assistance
required to perfect or enforce the rights defined in this Section. Executive shall communicate and
deliver to the Company and its successors or assigns promptly and fully all Materials conceived or
developed by him (alone or jointly with others) during the period of his employment or other
relationship with the Company and its successors and assigns.




          6.3. Restrictive Covenants.




               (a) For a period commencing on the Effective Date and continuing until twenty-four (24) months
after the Date of Termination, Executive shall not in any city, town or county in any state of the
United States where the Company or any of its subsidiaries, affiliates, successors or assigns
engages in the Business, directly or indirectly, do any of the following:



                    (i) engage for the Executive’s own account in the business of supplying, repairing or
consulting to businesses involved in the supply or repair of equipment or parts related to the feed
mill equipment industry, oil seed processing and/or wood and/or waste pelleting industries
(“Business”);



                    (ii) enter
the employ of, or render any services to or for, any entity that is engaged in the
Business; or



                    (iii) become interested in any entity engaged in the Business in any capacity, including as
an individual, partner, member, shareholder, officer, director, principal, employee, agent,
investor, trustee or consultant.



13









 





          Notwithstanding the foregoing, Executive may own, directly or indirectly, solely as a passive
investment, securities of any entity traded on any national securities exchange or automated
quotation system if the Executive is not a controlling person of, or a member of a group which
controls, such entity and does not, directly or indirectly, beneficially own 5.0% or more of any
class of securities of such entity.




               (b) Noninterference. For a period commencing on the Effective Date and continuing
until twenty-four (24) months after the Date of Termination, the Executive shall not, directly or
indirectly, do any of the following: solicit, induce, or attempt to solicit or induce any person
known by Executive to be a partner, principal, member, employee or consultant of the Company or its
subsidiaries, affiliates, successors or assigns, to terminate his or her employment or other
relationship with the Company or any of its subsidiaries, affiliates, successors or assigns.



               (c) Nonsolicitation. For a period commencing on the Effective Date and continuing
until twenty-four (24) months after the Date of Termination, the Executive shall not directly or
indirectly solicit, induce, or attempt to solicit or induce any person or entity then known to be a
customer, client, vendor, supplier, distributor or consultant of the Company or any of its
subsidiaries, affiliates, successors or assigns (a “Customer or Supplier”) to terminate for
any purpose his, her or its relationship with the Company or any of its subsidiaries,
affiliates, successors or assigns.



          Notwithstanding the foregoing, this Section 6.3 shall lapse at such time as the
Executive’s employment is terminated by the Company other than for Cause or is terminated by the
Executive for Good Reason.




14









 








          (d) Reasonableness of Restrictive Covenants. The Executive agrees that, due to the
uniqueness of his skills and abilities and the uniqueness of the confidential information that he
will possess in the course of his employment with the Company, the covenants set forth herein are
reasonable and necessary for the protection of the Company.




          6.4. Return of Documents and Other Property. At the end of the Term or upon Date of
Termination, the Executive shall return to the Company all of its property, equipment, documents,
records, lists, files and any and all other Company materials including, without limitation,
computerized or electronic information that is in Executive’s possession as of the Date of
Termination (the “Company Property”). The Company Property shall be delivered to the Company at its
office in Waterloo, Iowa (or at such other location designated by the Company), at Executive’s
expense, within ten (10) business days after the Date of Termination. Unless otherwise agreed by
the Company in writing, Executive shall not retain any Company Property or copies thereof.




          6.5. Irreparable Injury. Executive acknowledges that the covenants contained in this
Section 6 and the Executive’s services under this Agreement are of a special and unique
character, which gives them a peculiar value to the Company, the loss of which may not be
reasonably or adequately compensated for by damages in an action at law, and that a material
breach or threatened breach by him of any of the covenants contained in this Agreement will
cause the Company irreparable injury. Executive therefore agrees that the Company shall be
entitled, in addition to any other right or remedy, to a temporary restraining order, preliminary
and permanent injunctions and any other appropriate equitable remedy that prevents Executive from
breaching this Agreement, without the necessity of proving the inadequacy of monetary




15









 







damages or
the posting of any bond or security, enjoining or restraining Executive from any such violation or
threatened violation.




     7. Arbitration of Most Disputes.



          (a) All disputes under this Agreement, except for claims under Section 6.5, will be
settled by arbitration in New York, New York, before a single arbitrator pursuant to the Rules of
Commercial Arbitration of the American Arbitration Association. Judgment upon the award rendered
by the arbitrator may be entered in any court having jurisdiction. Any award rendered by the
arbitrator will be conclusive and binding upon the parties and there will be no right of appeal
therefrom (except as federal and/or state law provide limited rights of appeal of arbitration
decisions.




          (b) Arbitration may be commenced at any time by any party hereto giving written notice to each
other party to a dispute that such dispute has been referred to arbitration under this Section
7.




          (c) The arbitrator will be selected by the joint agreement of the parties hereto, but if they
do not so agree within 20 days after the date of the notice referred to above (or such longer time
to which they agree), they will request from the AAA a panel of seven (7) arbitrators
from which the parties will alternately strike names until a single arbitrator has been
selected. The flip of a coin will determine which party strikes the first name.




          (d) Each party will pay its own expenses of arbitration and the expenses of the arbitrator
will be equally shared.




16









 








     8. Definitions. For purposes of this Agreement, the following terms have the meanings
specified or referred to in this Section 8:



          8.1. “Confidential Information” shall mean (i) any and all trade secrets, product
specifications, compositions, designs, sketches, photographs, graphs, drawings, samples, inventions
and ideas, past, current and planned research and development, current and planned manufacturing
and distribution methods and processes, current and anticipated customer requirements, price lists,
market studies, business plans, computer software and programs (including object code and source
code), computer software and database technologies, systems, structures and architectures (and
related processes, formulae, compositions, improvements, devices, know-how, inventions,
discoveries, concepts, ideas, designs, methods and information), of the Company and any other
information, however documented, of the Company that is a trade secret; (ii) any and all
information concerning the business and affairs of the Company (which includes historical financial
statements, financial projections and budgets, historical and projected sales, capital spending
budgets and plans, the names and backgrounds of key personnel, personnel training and techniques
and materials), however documented; and (iii) any and all notes, analysis, compilations, studies,
summaries, and other material prepared by or for the Company containing or based, in whole or in
part, on any information included in the foregoing.




          8.2. “Legal Requirement” shall mean any federal, state, local, municipal, foreign,
international, multinational, or other administrative order, constitution, law, ordinance,
principle of common law, regulation, statute, or treaty.




17









 








     9. Representations and Warranties of Executive. Executive represents and warrants to
the Company as follows:



          (a) Executive’s signing and performance of this Agreement will not violate any agreement of
the Executive with any third party or otherwise violate the rights of any third party based upon
the relationship of the Executive with such third party.




          (b) In performing his services for the Company pursuant to this Agreement the Executive will
not use Confidential Information of any other person in a manner which would violate the rights of
such person.




          (c) In entering into this Agreement the Executive is not relying on any statements made by or
on behalf of the Company as to its business or prospects or otherwise; and as a person experienced
in, and knowledgeable with respect to, the company’s business, is relying solely on his own
analysis and investigations.




     10. Miscellaneous.



          10.1. Successors and Assigns; Binding Agreement. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns; provided, that the duties of the Executive
hereunder are personal to the Executive and may not be delegated or assigned by him.




          10.2. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York. The parties hereto irrevocably submit to the nonexclusive
jurisdiction of any New York state court sitting in the city or county of New York, New York and/or
any United States of America court sitting in New York, New York, in any




18









 







suit, action or proceeding
arising out of or relating to this Agreement. The parties hereto irrevocably waive, to the fullest
extent permitted by law, any objection which a party may now or hereafter have to the laying of
venue of any such suit, action or proceeding brought in any such court, and the parties further
irrevocably waive any claim that such suit, action or proceeding brought in any such court has been
brought in an inconvenient forum.




          10.3. Waivers. The waiver by either party hereto of any right hereunder or any failure
to perform or breach by the other party hereto shall not be deemed a waiver of any other right
hereunder or of any other failure or breach by the other party hereto, whether of the same or a
similar nature or otherwise. No waiver shall be deemed to have occurred unless set forth in a
writing executed by or on behalf of the waiving party. No such written waiver shall be deemed a
continuing waiver unless specifically stated therein, and each such waiver shall operate only as to
the specific term or condition waived and shall not constitute a waiver of such term or condition
for the future or as to any act other than that specifically waived.




          10.4. Notices. All notices and communications that are required or permitted to be
given hereunder shall be in writing and shall be deemed to have been duly given when delivered
personally or by overnight courier, as follows:



If to the Company, to:



CPM Acquisition Corp.

c/o Gilbert Global Equity Capital, L.L.C.

277 Park Avenue, 49th floor

New York, NY 10172

Attention: Richard W. Gaenzle, Jr.



and



Mayer Brown LLP

1675 Broadway




19









 







New York, NY 10019-5820

Attn: Thomas M. Vitale



If to the Executive, to:



Mr. Douglas Ostrich

3105 Cobble Stone Court

Cedar Falls, IA 50613



or to such other address as may be specified in a written notice personally delivered, faxed or
mailed by overnight courier or registered or certified mail, postage prepaid, return receipt
requested, given by one party to the other party hereunder.




          10.5. Severability. If for any reason any term or provision of this Agreement is held
to be invalid or unenforceable, all other valid terms and provisions hereof shall remain in full
force and effect, and all of the terms and provisions of this Agreement shall be deemed to be
severable in nature. If for any reason any term or provision containing a restriction set forth
herein is held to cover an area or to be for a length of time which is unreasonable, or in any
other way is construed to be too broad or to any extent invalid, such term or provision shall not
be determined to be null, void and of no effect, but to the extent the same is or would be valid
or enforceable under applicable law, any court of competent jurisdiction shall construe and
interpret or reform this Agreement to provide for a restriction having the maximum enforceable
area, time period and other provisions (not greater than those contained herein) as shall be valid
and enforceable under applicable law.




          10.6. Amendment; Cancellation. This Agreement may not be amended or cancelled except
by mutual agreement of the parties in writing (without the consent of any other person) and, so
long as the Executive lives, no person, other than the Company, its successors




20









 







and
assigns and the
Executive shall have any rights under or interests in this Agreement or the subject matter hereof.




          10.7. Descriptive Headings. The parties hereto agree that the headings of the several
paragraphs of this Agreement are inserted for convenience only and shall not in any way affect the
meaning or construction of any provision of this Agreement.




          10.8. Entire Agreement. This Agreement constitutes the entire agreement between the
parties hereto, and supersedes all prior oral and/or written understandings and/or agreements
between the parties hereto relating to the subject matter hereof, including, without limitation,
the Prior Agreement.




[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]






21









 








     IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first
above written.



	 	 	 	 	 
	 	CPM ACQUISITION CORP.

 	 
	 	By:  	/s/ Richard W. Gaenzle, Jr.
 	 
	 	 	Name:  	Richard W. Gaenzle, Jr. 	 
	 	 	Title:  	Vice President 	 
	 
	 	 	 
	 	By:  	                                                /s/ Douglas Ostrich
 	 
	 	 	Douglas Ostrich 	 
	 	 	 	 
	 




22