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EXHIBIT 10.23
[INTERNAP LOGO]
INTERNAP NETWORK SERVICES, INC.
EMPLOYEE CONFIDENTIALITY, NONRAIDING AND
NONCOMPETITION AGREEMENT
In consideration of my hire and continued employment by InterNAP Network
Services, L.L.C. ("InterNAP"), the continued compensation of me by InterNAP
during my employment, and the disclosure to me of InterNAP's confidential and
proprietary information, I agree to the following terms and conditions.
1. Employment. Employment will begin on 5/16/96. While employed by
InterNAP, I shall devote my entire working time, attention, abilities and
efforts to InterNAP's business and affairs, faithfully and diligently serve
InterNAP's interests and refrain from engaging in any business or employment
activity that is not on InterNAP's behalf (whether or not pursued for gain or
profit), except for activities approved in writing in advance by InterNAP. My
precise services may be extended or curtailed, from time to time, at the
direction of InterNAP, and I shall assume and perform such further reasonable
responsibilities and duties as may be assigned to me from time to time by
InterNAP.
2. Termination. My employment may be terminated by either InterNAP or
me at any time and for any reason, or for no reason, in either party's sole and
absolute discretion.
3. Payment. I understand and agree that I will be compensated for my
services as follows:
(a) Base Salary. A base annual salary of $85,000.00, payable in equal
semi-monthly installments on approximately the 1st and 15th day of each month.
4. Confidentiality and Nondisclosure. I agree that information not
generally known to the public to which I will be exposed as a result of my
being employed by InterNAP is confidential information that belongs to
InterNAP. This includes information developed by me, alone or with others, or
entrusted to InterNAP by its customers or others. InterNAP's confidential
information includes, without limitation, information relating to InterNAP's
trade secrets, research and development, inventions, know-how, software,
procedures, accounting, marketing, sales, creative and marketing strategies,
employee salaries and compensation, and the identities of customers and active
prospects to the extent not publicly disclosed (collectively, "Confidential
Information"). I will hold InterNAP's Confidential Information in strict
confidence, and not disclose or use it except as authorized by InterNAP and for
InterNAP's benefit.
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[INTERNAP LOGO]
I further acknowledge and agree that in order to enable InterNAP to
perform services for its customers or clients, such customers or clients may
furnish to InterNAP certain Confidential Information, that the goodwill
afforded to InterNAP depends upon InterNAP and its employees preserving the
confidentiality of such information, and that such information shall be treated
as Confidential Information of InterNAP for all purposes under this Agreement.
5. Noncompetition. I recognize and agree that InterNAP has many
substantial, legitimate business interests that can be protected only by my
agreement not to compete with InterNAP under certain circumstances. These
interests include, without limitation, InterNAP's contacts and relationships
with its clients and active prospects, InterNAP's reputation and goodwill in
the industry, and InterNAP's rights in its Confidential Information. Therefore,
I agree that during the term of my employment with InterNAP and for a period of
one (1) year after my employment ends for any reason whatsoever, I shall not,
voluntarily or involuntarily, directly or indirectly, on my own behalf or on
the behalf of another, approach, solicit, accept, receive or do work on any
portion of the computer network consulting and services business of any account
that was a client or active prospect of InterNAP, its parent or subsidiaries
during the twelve (12) month period immediately preceding the date my
employment with InterNAP ends. I may not, should the opportunity arise, accept
a position of employment with any of the above specified clients or active
prospects.
I also agree that during the term of my employment with InterNAP and for
a period of one (1) year after my employment ends for any reason whatsoever, I
shall not employ or seek to employ any person employed by InterNAP nor solicit
or induce any such person to leave InterNAP.
6. Injunctive Relief. I acknowledge that the breach of threatened
breach of the above noncompetition and/or nondisclosure provisions would cause
irreparable injury to InterNAP that could not be adequately compensated by
money damages. InterNAP may obtain a restraining order and/or injunction
prohibiting my breach or threatened breach of the noncompetition and/or
nondisclosure provisions, in addition to any other legal or equitable remedies
that may be available. I agree that the above noncompetition provision,
including its duration, scope and geographic extent, is fair and reasonably
necessary to protect InterNAP's client relationships, goodwill, Confidential
Information and other protectable interests.
7. Possession. I agree that upon request by InterNAP, and in any event
upon termination of employment for any reason, I shall turn over to InterNAP
all documents, notes, papers, data, files, office supplies or other material or
work product in my possession or under my control which was created pursuant
to, is connected with or derived from my services to InterNAP, or which is
related in any manner to InterNAP's business activities or research and
development efforts, whether or not such material is currently in my possession.
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[INTERNAP LOGO]
8. Waiver of Breach. The waiver of any breach of any provision of this
Agreement or the failure to enforce any provision shall not be construed as a
waiver of any later breach by any party.
9. Enforcement and Severability. If any portion of this Agreement
becomes invalid or unenforceable, the rest of the Agreement shall be construed
as if the invalid or unenforceable portion was omitted. The noncompletion and
nondisclosure provisions shall be enforceable against me notwithstanding the
existence of any claim I may have against InterNAP.
10. Governing Law. This Agreement shall be governed by the internal laws
of the state of Washington without giving effect to provisions related to choice
of laws or conflict of laws. Venue and jurisdiction of any lawsuit involving
this Agreement or my employment shall exist exclusively in state and federal
courts in King County, Washington, unless injunctive relief is sought by
InterNAP, and in InterNAP's judgment, may not be effective unless obtained in
some other venue.
11. Attorneys' Fees. In any lawsuit arising out of or relating to this
Agreement or my employment, including without limitation arising from any
alleged tort or statutory violation, the prevailing party shall recover its
reasonable costs and attorneys' fees, including on appeal.
12. General. This Agreement may be modified, supplemented and/or amended
only by a writing that both I and InterNAP sign. This Agreement, as it may be
so amended, is the complete and final expression of may agreement with InterNAP
on the subjects covered, and shall control over any other statement,
representation or agreement on these subjects.
I have read this Agreement before signing it, and I acknowledge receipt of
a signed copy.
/s/ XXXX X. XxXXXXX
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Xxxx X. XxXxxxx
5-16-96
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Date
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