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EXHIBIT 10.3
NONCOMPETITION AND NONSOLICITATION AGREEMENT
This
Noncompetition and Nonsolicitation Agreement ("Agreement") is
made
effective as of January 7, 2005, by and
between Kipling Thacker ("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 (as provided in
that certain Incentive Stock Option
Agreement between the parties dated the
date hereof), which options shall be
fully vested and exercisable on the date of
grant, and shares of restricted
stock of Lifecore (as provided in that
certain Restricted Stock Award Agreement
between the parties dated the date
hereof).
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 reasonably be used as an
alternative to, or which is or may
reasonably 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) ("Competitive
Activities") but only with regard to those
Competitive Activities which
Executive had responsibility for or
regarding which Executive received
confidential and proprietary information of
Lifecore (the "Competitive
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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. For purposes of this
Agreement, information is not
"confidential" to Lifecore if the information is
disclosed to Executive in good faith by a
third party who is in lawful
possession of that information and who has
the right to make such disclosure, or
is or becomes part of the public domain, by
publication or otherwise, through no
fault of Executive.
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 Competitive Business
from any client or prospective client of
Lifecore which was solicited or serviced by
Lifecore or about which Executive
received or had access to confidential
information. During that same period of
time, 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 supply confidential
information of Lifecore to, any third person or
entity, or to in any other way materially
and adversely interfere with the
relationship between any such officer,
consultant or independent contractor and
Lifecore. Likewise, during that same period
of time, Executive shall not,
directl
