NONCOMPETITION AND NONSOLICITATION AGREEMENT
Exhibit 10.29
This Noncompetition and Nonsolicitation Agreement (“Agreement”) is made effective as of July
10, 2006, by and between Xxx Xxxx (“Executive”), an individual resident of the State of Minnesota,
and Lifecore Biomedical, Inc., (“Lifecore”), a corporation organized under the laws of the State of
Minnesota.
WHEREAS, Executive is employed as an executive officer of Lifecore; and
WHEREAS, Lifecore wishes to enter into this noncompetition and nonsolicitation agreement with
Executive in order to protect its business; and
WHEREAS, in consideration for entering into this Agreement, Lifecore has agreed to grant to
Executive, contingent upon Executive agreeing to the covenants and restrictions contained herein,
options to purchase shares of common stock of Lifecore, which options shall be fully vested and
exercisable on the date of grant.
NOW THEREFORE, in consideration of the foregoing and the mutual obligations incurred and
benefits obtained hereunder, the sufficiency of which is admitted, Lifecore and Executive agree as
follows:
1. Restrictive Covenants. Executive agrees that, due to Executive’s employment with
Lifecore, Executive has and will have access to Lifecore’s trade secrets and confidential
information, including but not limited to: Lifecore’s current and proposed plans and strategies in
sales, marketing, target customers, product development and pricing; customer-specific information
generated and compiled by Lifecore; Lifecore’s national customer management database (MarketForce)
which contains an exhaustive compilation of information regarding Lifecore’s customers and
potential customers nationwide; and Lifecore’s financial information. Executive acknowledges that
these trade secrets and confidential information are valuable to Lifecore and, accordingly, agrees
to the following provisions:
1.1 Covenant Not To Compete. During Executive’s employment by Lifecore, and for a
period of 24 consecutive months from the date of termination of such employment for whatever reason
(whether occasioned by Executive or Lifecore), Executive will not, directly or indirectly, in any
manner (e.g., as an executive, agent, consultant, partner, member, manager, officer, director,
shareholder, or otherwise), render services, advice or assistance to any division, group or part of
any corporation, person, organization or other entity which engages in the marketing, selling,
production, design or development of any product, good, service or procedure which is or may be
used as an alternative to, or which is or may be sold in competition with any product, good,
service or procedure marketed, sold, produced, designed or developed by Lifecore (including
products, goods, services, or procedures currently being researched or under development by
Lifecore) (the “Competitive Business”), in any geographic location, domestic or foreign, in which
Executive performed services or had responsibility on behalf of Lifecore. It is understood that
Executive may render services, advice or assistance to any separate division, group or part of any
corporation, person, organization or other entity which is not
engaged in a Competitive Business regardless of whether another separate division, group or part of such
corporation, person, organization or other entity is engaged in a Competitive Business.
1.2 Covenant Not To Solicit Business and Customers. During Executive’s employment by
Lifecore, and for a period of 24 consecutive months from the date of termination of such employment
for whatever reason (whether occasioned by Executive or Lifecore), Executive shall not, directly or
indirectly, divert, solicit, or accept business from any client or prospective client of Lifecore
that was solicited or serviced by Lifecore or that Executive supervised, directly or indirectly, in
whole or in part, the solicitation or services activities related to such clients or prospects or
about whom Executive received or had access to confidential information. Executive shall not,
directly or indirectly, in any way interfere, or attempt to interfere, with Lifecore’s
relationships with any of its actual or potential vendors or suppliers.
1.3 Covenant Not To Solicit For Employment. During Executive’s employment by
Lifecore, and for a period of 24 consecutive months from the date of termination of such employment
for whatever reason (whether occasioned by Executive or Lifecore), Executive shall not, directly or
indirectly, induce, solicit, endeavor to entice or attempt to induce any other officer, employee
consultant or independent contractor of Lifecore to leave the employ of Lifecore, or to work for,
render services or provide advice to, or supply confidential information of Lifecore to, any third
person or entity, or to in any way adversely interfere with the relationship between any such
officer, consultant or independent contractor and Lifecore.
1.4 Notification of Employment. If at any time covered by the covenants contained in
this Section 1, Executive accepts new employment or becomes affiliated with a third party,
Executive shall immediately notify Lifecore of the identity and business of the new employer or
affiliation. Without limiting the foregoing, Executive’s obligation to give notice under this
Section 1.4 shall apply to any business ventures in which Executive proposes to engage, even if not
with a third-party employer (such as, without limitation, a joint venture, partnership or sole
proprietorship). Executive hereby consents to Lifecore notifying any such new employer or business
venture of the terms of the covenants in this Section 1.
2. Miscellaneous.
2.1 Governing Law and Venue Selection. This Agreement is made under and shall be
governed by and construed in accordance with the laws of the State of Minnesota, without regard to
its conflicts of laws principles or those of any other State.
2.2 Entire Agreement. This Agreement (including other agreements specifically
mentioned in this Agreement except as terminated herein) contains the entire agreement of the
parties relating to the subject matter hereof and supersedes, terminates and replaces all prior
promises, contracts, agreements and understandings of any kind, whether express or implied, oral or
written, with respect to such subject matter (including, but not limited to, any promise, contract
or understanding, whether express or implied, oral or written, by and between Lifecore and
Executive), and the parties hereto have made no agreements, representations or warranties relating
to the subject matter of this Agreement which are not set forth herein.
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2.3 Amendments. No amendment or modification of this Agreement shall be deemed
effective unless made in writing and signed by Executive and Lifecore.
2.4 No Waiver. No term or condition of this Agreement shall be deemed to have been
waived, nor shall there be any estoppel to enforce any provisions of this Agreement, except by a
statement in writing signed by the party against whom enforcement of the waiver or estoppel is
sought. Any written waiver shall not be deemed a continuing waiver unless specifically stated,
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 as specifically set forth in
the waiver.
2.5 Assignment. This Agreement shall not be assignable, in whole or in part, by any
party without the written consent of the other party, except that Lifecore may, without the consent
of Executive, assign its rights and obligations under this Agreement to any Lifecore affiliate or
to any corporation, firm or other business entity with or into which Lifecore may merge or
consolidate, or to which Lifecore may sell or transfer all or substantially all of its assets or
all or substantially all of the assets of either of Lifecore’s primary business units, or of which
50% or more of the equity investment and of the voting control is owned, directly or indirectly,
by, or is under common ownership with, Lifecore.
2.6 Injunctive Relief. Executive acknowledges and agrees that any violation of
Section 1 hereof would be highly injurious to Lifecore, and that it would be extremely difficult to
compensate Lifecore fully for damages for any such violation. Accordingly, Executive specifically
agrees that Lifecore shall be entitled to temporary and permanent injunctive relief to enforce the
provisions of Section 1 hereof, and that such relief may be granted without the necessity of
proving actual damages and without necessity of posting any bond. This provision with respect to
injunctive relief shall not, however, diminish the right of Lifecore to claim and recover damages,
or to seek and obtain any other relief available to it at law or in equity, in addition to
injunctive relief.
2.7 Arbitration. Any dispute arising out of or relating to this Agreement or the
alleged breach of it, or the making of this Agreement, including claims of fraud in the inducement,
shall be discussed between the disputing parties in a good faith effort to arrive at a mutual
settlement of any such controversy. If such dispute cannot be resolved, such dispute shall be
settled by binding arbitration, except that Lifecore may elect to seek such temporary or
preliminary injunctive relief from an appropriate court pursuant to Section 2.6 as may be necessary
to protect its interest prior to arbitration.
Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction
thereof. The arbitrator shall be a retired state or federal judge or an attorney who has practiced
business or employment litigation for at least 10 years. If the parties cannot agree on an
arbitrator within 20 days, either party may request that the chief judge of the district court for
Hennepin County, Minnesota, select an arbitrator. If the chief judge does not select an arbitrator
within 30 days of such request, either party may request that the American Arbitration Association
(AAA) designate a panel of five proposed arbitrators meeting the criteria set forth in
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this Section, and the parties shall alternate striking members of the panel, with Executive having
the first strike, until an arbitrator is thereby selected. Arbitration will be conducted pursuant
to the provisions of this Agreement, and the applicable arbitration rules of the AAA, unless such
rules are inconsistent with the provisions of this Agreement, but, unless an arbitrator is selected
through the AAA, without submission of the dispute to the AAA. Each party shall be permitted
reasonable discovery, including the production of relevant documents by the other party, exchange
of witness lists, and a limited number of depositions, including depositions of any experts who
will testify at the arbitration. The summary judgment procedure applicable in Hennepin County,
Minnesota, District Court shall be available and apply to any arbitration conducted pursuant to
this Agreement. The arbitrator shall have the authority to award to the prevailing party any
remedy or relief that a court of the State of Minnesota could order or grant, including costs and
attorneys’ fees. Unless otherwise agreed by the parties, the place of any arbitration proceedings
shall be Minneapolis, Minnesota.
2.8 Severability. To the extent any provision of this Agreement shall be determined
to be invalid or unenforceable in any jurisdiction, such provision shall be deemed to be deleted
from this Agreement as to that jurisdiction only, and the validity and enforceability of the
remainder of such provision and of this Agreement shall be unaffected. In furtherance of and not
in limitation of the foregoing, Executive expressly agrees that should the duration of,
geographical extent of, or business activities covered by, any provision of this Agreement be in
excess of that which is valid or enforceable under applicable law in a given jurisdiction, then
such provision, as to such jurisdiction only, shall be construed to cover only that duration,
extent or activities that may validly or enforceably be covered. Executive acknowledges the
uncertainty of the law in this respect and expressly stipulates that this Agreement shall be
construed in a manner that renders its provisions valid and enforceable to the maximum extent (not
exceeding its express terms) possible under applicable law in each applicable jurisdiction.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth in the
first paragraph.
| LIFECORE BIOMEDICAL, INC. | ||||||
| By | /s/ Xxxxxx X. Xxxxxxxxx | |||||
| Name: Xxxxxx X. Xxxxxxxxx | ||||||
| Title: President and CEO | ||||||
| EXECUTIVE | ||||||
| /s/ Xxx Xxxx |
||||||
| Name: Xxx Xxxx | ||||||
| Title: Vice president of Technical Operations | ||||||
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