**Exhibit 10.28****NONCOMPETITION AND NONSOLICITATION AGREEMENT**     This Noncompetition and Nonsolicitation Agreement (“Agreement”) is made effective as ofJanuary 3, 2006, by and between Ben Beckham (“Executive”), an individual resident of the State ofTexas, and Lifecore Biomedical, Inc., (“Lifecore”), a corporation organized under the laws of theState of Minnesota.     WHEREAS, Executive is employed as an executive officer of Lifecore; and     WHEREAS, Lifecore wishes to enter into this noncompetition and nonsolicitation agreement withExecutive in order to protect its business; and     WHEREAS, in consideration for entering into this Agreement, Lifecore has agreed to grant toExecutive, 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 andexercisable on the date of grant.     **NOW THEREFORE**, in consideration of the foregoing and the mutual obligations incurred andbenefits obtained hereunder, the sufficiency of which is admitted, Lifecore and Executive agree asfollows:1. Restrictive Covenants. Executive agrees that, due to Executive’s employment withLifecore, Executive has and will have access to Lifecore’s trade secrets and confidentialinformation, including but not limited to: Lifecore’s current and proposed plans and strategies insales, marketing, target customers, product development and pricing; customer-specific informationgenerated and compiled by Lifecore; Lifecore’s national customer management database (MarketForce)which contains an exhaustive compilation of information regarding Lifecore’s customers andpotential customers nationwide; and Lifecore’s financial information. Executive acknowledges thatthese trade secrets and confidential information are valuable to Lifecore and, accordingly, agreesto the following provisions:     1.1 Covenant Not To Compete. During Executive’s employment by Lifecore, and for aperiod 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 anymanner (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 ofany 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 beused 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 (includingproducts, goods, services, or procedures currently being researched or under development byLifecore) (the “Competitive Business”), in any geographic location, domestic or foreign, in whichExecutive performed services or had responsibility on behalf of Lifecore. It is understood thatExecutive may render services, advice or assistance to any separate division, group or part of anycorporation, person, organization or other entity which is notengaged in a Competitive Business regardless of whether another separate division, group or part of suchcorporation, person, organization or other entity is engaged in a Competitive Business.
 

 
     1.2 Covenant Not To Solicit Business and Customers. During Executive’s employment byLifecore, and for a period of 24 consecutive months from the date of termination of such employmentfor whatever reason (whether occasioned by Executive or Lifecore), Executive shall not, directly orindirectly, divert, solicit, or accept business from any client or prospective client of Lifecorethat was solicited or serviced by Lifecore or that Executive supervised, directly or indirectly, inwhole or in part, the solicitation or services activities related to such clients or prospects orabout 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’srelationships with any of its actual or potential vendors or suppliers.     1.3 Covenant Not To Solicit For Employment. During Executive’s employment byLifecore, and for a period of 24 consecutive months from the date of termination of such employmentfor whatever reason (whether occasioned by Executive or Lifecore), Executive shall not, directly orindirectly, induce, solicit, endeavor to entice or attempt to induce any other officer, employeeconsultant 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 thirdperson or entity, or to in any way adversely interfere with the relationship between any suchofficer, consultant or independent contractor and Lifecore.     1.4 Notification of Employment. If at any time covered by the covenants contained inthis 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 oraffiliation. Without limiting the foregoing, Executive’s obligation to give notice under thisSection 1.4 shall apply to any business ventures in which Executive proposes to engage, even if notwith a third-party employer (such as, without limitation, a joint venture, partnership or soleproprietorship). Executive hereby consents to Lifecore notifying any such new employer or businessventure 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 begoverned by and construed in accordance with the laws of the State of Minnesota, without regard toits conflicts of laws principles or those of any other State.     2.2 Entire Agreement. This Agreement (including other agreements specificallymentioned in this Agreement except as terminated herein) contains the entire agreement of theparties relating to the subject matter hereof and supersedes, terminates and replaces all priorpromises, contracts, agreements and understandings of any kind, whether express or implied, oral orwritten, with respect to such subject matter (including, but not limited to, any promise, contractor understanding, whether express or implied, oral or written, by and between Lifecore andExecutive), and the parties hereto have made no agreements, representations or warranties relatingto 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 deemedeffective 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 beenwaived, nor shall there be any estoppel to enforce any provisions of this Agreement, except by astatement in writing signed by the party against whom enforcement of the waiver or estoppel issought. 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 waiverof such term or condition for the future or as to any act other than as specifically set forth inthe waiver.     2.5 Assignment. This Agreement shall not be assignable, in whole or in part, by anyparty without the written consent of the other party, except that Lifecore may, without the consentof Executive, assign its rights and obligations under this Agreement to any Lifecore affiliate orto any corporation, firm or other business entity with or into which Lifecore may merge orconsolidate, or to which Lifecore may sell or transfer all or substantially all of its assets orall or substantially all of the assets of either of Lifecore’s primary business units, or of which50% 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 ofSection 1 hereof would be highly injurious to Lifecore, and that it would be extremely difficult tocompensate Lifecore fully for damages for any such violation. Accordingly, Executive specificallyagrees that Lifecore shall be entitled to temporary and permanent injunctive relief to enforce theprovisions of Section 1 hereof, and that such relief may be granted without the necessity ofproving actual damages and without necessity of posting any bond. This provision with respect toinjunctive 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 toinjunctive relief.     2.7 Arbitration. Any dispute arising out of or relating to this Agreement or thealleged 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 mutualsettlement of any such controversy. If such dispute cannot be resolved, such dispute shall besettled by binding arbitration, except that Lifecore may elect to seek such temporary orpreliminary injunctive relief from an appropriate court pursuant to Section 2.6 as may be necessaryto protect its interest prior to arbitration.Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdictionthereof. The arbitrator shall be a retired state or federal judge or an attorney who has practicedbusiness or employment litigation for at least 10 years. If the parties cannot agree on anarbitrator within 20 days, either party may request that the chief judge of the district court forHennepin County, Minnesota, select an arbitrator. If the chief judge does not select an arbitratorwithin 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 havingthe first strike, until an arbitrator is thereby selected. Arbitration will be conducted pursuantto the provisions of this Agreement, and the applicable arbitration rules of the AAA, unless suchrules are inconsistent with the provisions of this Agreement, but, unless an arbitrator is selectedthrough the AAA, without submission of the dispute to the AAA. Each party shall be permittedreasonable discovery, including the production of relevant documents by the other party, exchangeof witness lists, and a limited number of depositions, including depositions of any experts whowill 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 tothis Agreement. The arbitrator shall have the authority to award to the prevailing party anyremedy or relief that a court of the State of Minnesota could order or grant, including costs andattorneys’ fees. Unless otherwise agreed by the parties, the place of any arbitration proceedingsshall be Minneapolis, Minnesota.     2.8 Severability. To the extent any provision of this Agreement shall be determinedto be invalid or unenforceable in any jurisdiction, such provision shall be deemed to be deletedfrom this Agreement as to that jurisdiction only, and the validity and enforceability of theremainder of such provision and of this Agreement shall be unaffected. In furtherance of and notin 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 inexcess of that which is valid or enforceable under applicable law in a given jurisdiction, thensuch 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 theuncertainty of the law in this respect and expressly stipulates that this Agreement shall beconstrued in a manner that renders its provisions valid and enforceable to the maximum extent (notexceeding 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 thefirst paragraph.         LIFECORE BIOMEDICAL, INC.           By /s/ Dennis J. Allingham           Name: Dennis J. Allingham    Title: President and CEO           EXECUTIVE           /s/ Ben Beckham