Free Amended Complaint - District Court of Delaware - Delaware

Case 1:07-cv-00027-GMS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

KENEXA TECHNOLOGY, INC., a Pennsylvania Corporation, Plaintiff, v. BLUELINX CORPORATION, a Georgia corporation, Defendant.

) ) ) ) ) ) ) ) ) ) )

C.A. No. 07-27 (GMS) JURY TRIAL DEMANDED

VERIFIED AMENDED COMPLAINT Parties 1. Plaintiff Kenexa Technology, Inc. ("Kenexa") is a Pennsylvania corporation with

a principal place of business at 650 East Swedesford Road, Second Floor, Wayne, Pennsylvania 19087. 2. Defendant BlueLinx Corporation ("BlueLinx") is a Georgia corporation with a

principal place of business at 4100 Wildwood Parkway, Atlanta, Georgia 30339. Jurisdiction and Venue 3. Jurisdiction is proper pursuant to 28 U.S.C.A. §1332(a)(1) because Kenexa and

BlueLinx are citizens of different states, the amount in controversy exceeds $75,000.00, exclusive of interest and costs, and the parties have consented to the jurisdiction of Delaware.

1
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4.

Venue is proper pursuant to 28 U.S.C.A. §1391(a)(3) because Kenexa and

BlueLinx consented to venue in the courts of Delaware. Background 5. Kenexa is a provider of employment software, proprietary content, services and

process outsourcing that partners with clients' human resources departments to maximize performance and efficiency. 6. BlueLinx is a distributor of building products, providing products to dealers,

industrial manufacturers, manufactured housing producers, and home improvement retailers nationwide. 7. On or about June 1, 2006, Kenexa and BlueLinx executed a Master Service

Agreement ("Agreement") for Kenexa to provide BlueLinx employment process outsourcing services and related products. A true and correct copy of the Agreement and exhibits thereto is attached hereto as Exhibit "A". Attached as Exhibit "B" are certain pages of the Agreement in a more legible format. 8. 9. The Agreement commenced on June 2, 2006 and was for a five year term. According to the Agreement, BlueLinx was obligated to pay Kenexa $377,852.00

per quarter in year one and $594,734.00 per quarter in years two through five of the Agreement, plus additional fees and expenses. 10. According to the Agreement, BlueLinx was obligated to pay Kenexa for its

services, products and expenses within thirty (30) days of receipt of Kenexa's invoice. 11. Plaintiff Kenexa has invoiced BlueLinx for services rendered and products

delivered pursuant to or in connection with the Agreement. 12. BlueLinx has failed to pay Kenexa numerous invoices that are properly due and

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owing.

Those invoices include $376,380.85 for a quarterly run rate and $23,500.00 for

development of a third career center, one time load of candidate information, creation and set up of daily hire fee and maintenance charges. 13. 14. BlueLinx did not dispute any outstanding invoices as required by the Agreement. According to the Agreement, BlueLinx could terminate the Agreement after thirty

(30) days written notice to Kenexa only for a material default. 15. 16. BlueLinx purportedly terminated the Agreement on November 1, 2006. Kenexa invoked the dispute resolution procedure contained in the Agreement.

BlueLinx refused to engage in any dispute resolution process. 17. As part of the Agreement, Kenexa provided BlueLinx with on-site and support

personnel. Leslie Lovelace ("Lovelace") and Susan Podsiad ("Podsiad") were two of Kenexa's on-site employees on the BlueLinx program. 18. Kenexa routinely entered into employee agreements with its onsite personnel,

including Lovelace and Podsiad. 19. Lovelace entered into an employment Agreement Relating to Business

Information, Trade Secrets and Non-Competition with Kenexa on August 2, 2006 ("Lovelace Agreement"). A true and correct copy of the Lovelace Agreement is attached hereto as Exhibit "C". 20. Podsiad entered into an Employment Agreement Relating to Business

Information, Trade Secrets and Non-Competition with Kenexa on August 24, 2006 ("Podsiad Agreement"). A true and correct copy of the Podsiad Agreement is attached hereto as Exhibit "D). 21. Lovelace and Podsiad were Kenexa employees assigned to BlueLinx through

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November 16, 2006 and November 17, 2006 respectively. 22. 23. 24. Lovelace was Kenexa's On-site Staffing Consultant on the BlueLinx job. Podisiad was Kenexa's Program Coordinator on the BlueLinx job. After BlueLinx purportedly and improperly terminated the Agreement,

Lovelace's and Podsiad's employment with Kenexa ended. 25. Kenexa's on-site personnel are critical to Kenexa's efforts to conduct business

and service clients. As part of Kenexa's efforts to service clients, Kenexa trains and educates its key personnel. Each on-site employee is trained and educated for one week at Kenexa's Wayne, Pennsylvania facility and receives one week of on-site training at the client's facilities. Kenexa's training and education is conducted by its Implementation and Training Department. 26. The process for preparing Kenexa's employees and the information utilized in its

training and education is not generally available in the marketplace (i.e., it is proprietary) and has been developed by Kenexa with the specific intent of benefiting Kenexa in its business. This information is disclosed in confidence to Kenexa's employees. 27. During their employment with Kenexa, Lovelace and Podsiad had access to trade

secrets and other proprietary information of Kenexa, including: Kenexa Database, Training material for BlueLinx, BlueLinx E-Tag given to Lovelace and Podsiad on CD, Kenexa sourcing strategy designed for BlueLinx, access to Job Boards passwords and logins, and Kenexa business model for EPO programs. 28. The Agreement requires BlueLinx to maintain and protect Kenexa's confidential

information. The Agreement, paragraph 6, states: Both parties shall maintain as confidential and shall not disclose, copy, nor use for purposes other than the performance of this Agreement or as required by law, any information which relates to the other party's business affairs, trade secrets, technology, research and development, pricing, employee information or the

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terms of this Agreement ("Confidential Information") and each agrees to protect the Confidential Information with the same degree of care that it exercises to protect its own confidential information but in no event with less than reasonable care. Confidential Information shall not include Information, (a) previously known by a party without restriction, (b) was acquired by a party from a third party which was not, under an obligation to not to disclose such information, or (c) which is or becomes publicly available through no breach by a party of this Agreement. Upon expiration or termination of this Agreement or upon the request of the other party, each party agrees to returned (or destroy as evidenced in writing by an officer of receiving party's company) the other's Confidential Information. Breach of confidentiality may cause irreparable damage and, therefore, the injured party shall have the right to equitable and injunctive relief and to recover damages (including attorney's fees and costs) incurred in connection with any violation hereof. The provisions of this Section shall survive the termination or expiration of this Agreement. 29. The Agreement restricts BlueLinx's solicitation and hiring of Kenexa's

employees. The Agreement, paragraph 14, states: Kenexa and BlueLinx agree not to directly solicit the other party's employees (or individuals who were employees of the other party within the preceding thirty (30) days) with whom it came into contact as a result of this Agreement without the express written consent of the other party for a period of one (1) year from the last date of delivery of Services or Product under this Agreement. 30. Sometime in November 2006, without Kenexa's consent BlueLinx hired both

Lovelace and Podsiad. 31. BlueLinx breached the Agreement when it directly solicited and ultimately hired

Lovelace and Podsiad. 32. Lovelace and Podsiad Agreements, paragraph 5, provide that in "the event of a

breach of this Agreement, Employee agrees that Kenexa shall be entitled, in addition to any other available remedies, to temporary and permanent injunctive relief without the necessity of positing a bond and to expedited discovery." 33. The Lovelace Agreement and Podsiad Agreement, paragraph 2, identify Kenexa's

trade secrets and proprietary information in Lovelace's and Podsiad's possession and contain

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non-competition clauses, stating: a. Employee recognizes and acknowledges that, during the term of employment with Kenexa, Employee will have access to, learn, be provided with and, in some cases, prepare and create certain confidential and business methods; client and candidate information; client and candidate lists; prospective client and candidate lists and information; the terms of client contracts and proposals; product technology and product development strategies; pricing policies methods of delivering services and products, marketing and sales methods and strategies; identities of Kenexa and its customers employees, agents and representatives; employment and payroll information; forecasts, budgets and other nonpublic financial information; information about the internal organization and business structure of Kenexa and its customers and the work assignments or capabilities of Kenexa's employees and officers; and expansion plans, management policies and other business strategies and policies and software configurations, computer codes and instructions, computer inputs and outputs (regardless of the media on which stored or located), and computer processing systems, techniques, designs, architecture, and interfaces, all of which are of substantial value to Kenexa and/or its customers (the "Confidential Information"). For a period of one (1) year after Employee is no longer employed by Kenexa, Employee, without the express prior written consent of Kenexa, will not compete in any way with Kenexa, directly or indirectly, and will not consult with, accept employment with, or have any interest in any Business, whether alone or as an Interested Person, which engages in the performance of or provides the same or similar services as provided by Kenexa to any individual or entity or which competes with Kenexa, directly or indirectly, in any aspect of the business of Kenexa within one hundred (100) miles of any existing Kenexa location. Employee specifically agrees to this geographic restriction, since the principal means by which Kenexa's business is conducted is through e-mail, telephonic and mail communications. For a period of eighteen (18) months after Employee is no longer employed by Kenexa, Employee will not compete in any way with Kenexa, directly or indirectly, and will not, without the express prior written consent of Kenexa, directly or indirectly, whether alone or as an Interested Person, solicit, induce, divert, take away, do business with or render services to any client or candidate of Kenexa or a prospective client or candidate of Kenexa with whom Kenexa dealt, contacted or solicited within two (2) years preceding Employee's termination of employment with Kenexa. For a period of two (2) years after Employee is no longer employed by

b.

c.

d.
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Kenexa, Employee will not compete in any way with Kenexa, directly or indirectly, and will not, without the express prior written consent of Kenexa, directly or indirectly, whether alone or as an Interested Person, solicit, induce, divert, take away, do business with or render services to any client or candidate of Kenexa or a prospective client or candidate of Kenexa with whom Employee dealt, contacted or solicited on behalf of Kenexa within three (3) years preceding Employee's termination of employment with Kenexa. 34. After the purported and improper termination of the Agreement by BlueLinx,

BlueLinx improperly and without Kenexa's consent used a CareerBuilder posting site purchased by Kenexa under the names of Susan Podsiad and Leslie Lovelace as the user of the account. Kenexa did not set up accounts for Susan Podsiad and Leslie Lovelace to access CareerBuilder. Count I (Breach of Contract) 35. 36. Kenexa realleges the above paragraphs as if set forth at length herein. Kenexa and BlueLinx executed the Agreement for Kenexa to provide products

and serves to BlueLinx for sixty (60) months. 37. BlueLinx breached the Agreement when it failed to pay Kenexa for its products

and services according to the Agreement. 38. with Kenexa. 39. BlueLinx breached the Agreement when it hired Kenexa's former employees, BlueLinx breached the Agreement when it wrongfully terminated the Agreement

Lovelace and Podsiad. 40. BlueLinx breached the Agreement when it used Kenexa's confidential

Information outside of the Agreement. 41. Kenexa was damaged as a result of BlueLinx's breaches of the Agreement.

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Count II (Declaratory Judgment) 42. 43. Kenexa realleges the above paragraphs as if set forth at length herein. According to the Agreement, BlueLinx was required to pay Kenexa for a sixty

(60) month period. 44. 45. Kenexa asserts that BlueLinx breached the Agreement, which BlueLinx disputes. Kenexa seeks a declaration that BlueLinx breached the Agreement by failing to

object or to pay for services and products and anticipatorily breached the Agreement by untimely and improperly terminating without cause. 46. There exists, therefore, an actual controversy that is subject to determination by

declaratory judgment pursuant to 28 U.S.C.A. §2201. Count III (Intentional Interference with Contractual Relations) 47. 48. 49. Kenexa realleges the above paragraphs as if set forth at length herein. BlueLinx knew of the Lovelace Agreement and the Podsiad Agreement. Lovelace and Podsiad breached the confidentiality and non-competition

provisions of their agreements when they accepted employment with BlueLinx and when they used Kenexa's Confidential Information and trade secrets during their employment with BlueLinx. 50. BlueLinx intentionally, and without justification, solicited and hired Lovelace and

Podsiad, which was a significant factor in causing the breach of the Lovelace Agreement and Podsiad Agreement. 51. Kenexa was damaged as a result of BlueLinx's intentional interference with

contractual relations.

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Count IV (Misappropriation of Trade Secrets) 52. 53. Kenexa realleges the above paragraphs as if set forth at length herein. Kenexa's Confidential Information is highly valuable and confidential assets and

trade secrets of the company that are protected from public disclosure and are not shared with third parties. 54. Kenexa's research, pricing information, costs or other financial information,

manner of operation, plans, processes, marketing and recruiting efforts are protected as trade secrets. 55. Kenexa never provided Podsiad, Lovelace, or BlueLinx with written consent or

permission to use its Confidential Information or trade secrets. 56. BlueLinx obtained and used Kenexa's trade secrets to gain advantage, to interfere

with Kenexa's business, and to otherwise benefit themselves or third parties to the great detriment of Kenexa. 57. BlueLinx misappropriated Kenexa's trade secrets in violation of 6 Delaware

Code, Chapter 20. 58. Kenexa has been damaged as a direct and proximate cause of BlueLinx's

misappropriation of Kenexa's trade secrets. WHEREFORE, Plaintiff Kenexa Technology, Inc. prays for judgment against Defendants BlueLinx Corporation, as follows: 1. Preliminary and permanent injunction, enjoining BlueLinx from employing Kenexa's past and present employees and from using its Confidential Information; 2. Damages for breach contract, including future losses through the term of the Agreement;

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3. Interest at the rate of one (1%) percent per month from the date of the breach; 4. Declaratory judgment; 5. Costs and fees, including reasonable attorneys' fees; 6. Pre and post judgment interest; and 7. Any other relief the Court deems appropriate.

SEITZ, VAN OGTROP & GREEN, P.A /s/ Kevin A. Guerke R. KARL HILL, ESQ. (DE2747) KEVIN A. GUERKE, ESQ. (DE4096) 222 Delaware Avenue, Suite 1500 P. O. Box 68 Wilmington, DE 19899 (302) 888-0600 Attorneys for Plaintiff

Dated: May 3, 2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

KENEXA TECHNOLOGY, INC., a Pennsylvania Corporation, Plaintiff, v. BLUELINX CORPORATION, a Georgia corporation, Defendant.

) ) ) ) ) ) ) ) ) ) )

C.A. No. 07-27 (GMS) JURY TRIAL DEMANDED

VERIFIED AMENDED COMPLAINT Parties 1. Plaintiff Kenexa Technology, Inc. ("Kenexa") is a Pennsylvania corporation with

a principal place of business at 650 East Swedesford Road, Second Floor, Wayne, Pennsylvania 19087. 2. Defendant BlueLinx Corporation ("BlueLinx") is a Georgia corporation with a

principal place of business at 4100 Wildwood Parkway, Atlanta, Georgia 30339. Jurisdiction and Venue 3. Jurisdiction is proper pursuant to 28 U.S.C.A. §1332(a)(1) because Kenexa and

BlueLinx are citizens of different states, the amount in controversy exceeds $75,000.00, exclusive of interest and costs, and the parties have consented to the jurisdiction of Delaware.

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4.

Venue is proper pursuant to 28 U.S.C.A. §1391(a)(3) because Kenexa and

BlueLinx consented to venue in the courts of Delaware. Background 5. Kenexa is a provider of employment software, proprietary content, services and

process outsourcing that partners with clients' human resources departments to maximize performance and efficiency. 6. BlueLinx is a distributor of building products, providing products to dealers,

industrial manufacturers, manufactured housing producers, and home improvement retailers nationwide. 7. On or about June 1, 2006, Kenexa and BlueLinx executed a Master Service

Agreement ("Agreement") for Kenexa to provide BlueLinx employment process outsourcing services and related products. A true and correct copy of the Agreement and exhibits thereto is attached hereto as Exhibit "A". Attached as Exhibit "B" are certain pages of the Agreement in a more legible format. 8. 9. The Agreement commenced on June 2, 2006 and was for a five year term. According to the Agreement, BlueLinx was obligated to pay Kenexa $377,852.00

per quarter in year one and $594,734.00 per quarter in years two through five of the Agreement, plus additional fees and expenses. 10. According to the Agreement, BlueLinx was obligated to pay Kenexa for its

services, products and expenses within thirty (30) days of receipt of Kenexa's invoice. 11. Plaintiff Kenexa has invoiced BlueLinx for services rendered and products

delivered pursuant to or in connection with the Agreement. 12.
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owing.

Those invoices include $376,380.85 for a quarterly run rate and $23,500.00 for

development of a third career center, one time load of candidate information, creation and set up of daily hire fee and maintenance charges. 13. 14. BlueLinx did not dispute any outstanding invoices as required by the Agreement. According to the Agreement, BlueLinx could terminate the Agreement after thirty

(30) days written notice to Kenexa only for a material default. 15. 16. BlueLinx purportedly terminated the Agreement on November 1, 2006. Kenexa invoked the dispute resolution procedure contained in the Agreement.

BlueLinx refused to engage in any dispute resolution process. 17. As part of the Agreement, Kenexa provided BlueLinx with on-site and support

personnel. Leslie Lovelace ("Lovelace") and Susan Podsiad ("Podsiad") were two of Kenexa's on-site employees on the BlueLinx program. 18. Kenexa routinely entered into employee agreements with its onsite personnel,

including Lovelace and Podsiad. 19. Lovelace entered into an employment Agreement Relating to Business

Information, Trade Secrets and Non-Competition with Kenexa on August 2, 2006 ("Lovelace Agreement"). A true and correct copy of the Lovelace Agreement is attached hereto as Exhibit "C". 20. Podsiad entered into an Employment Agreement Relating to Business

Information, Trade Secrets and Non-Competition with Kenexa on August 24, 2006 ("Podsiad Agreement"). A true and correct copy of the Podsiad Agreement is attached hereto as Exhibit "D). 21. Lovelace and Podsiad were Kenexa employees assigned to BlueLinx through

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November 16, 2006 and November 17, 2006 respectively. 22. 23. 24. Lovelace was Kenexa's On-site Staffing Consultant on the BlueLinx job. Podisiad was Kenexa's Program Coordinator on the BlueLinx job. After BlueLinx purportedly and improperly terminated the Agreement,

Lovelace's and Podsiad's employment with Kenexa ended. 25. Kenexa's on-site personnel are critical to Kenexa's efforts to conduct business

and service clients. As part of Kenexa's efforts to service clients, Kenexa trains and educates its key personnel. Each on-site employee is trained and educated for one week at Kenexa's Wayne, Pennsylvania facility and receives one week of on-site training at the client's facilities. Kenexa's training and education is conducted by its Implementation and Training Department. 26. The process for preparing Kenexa's employees and the information utilized in its

training and education is not generally available in the marketplace (i.e., it is proprietary) and has been developed by Kenexa with the specific intent of benefiting Kenexa in its business. This information is disclosed in confidence to Kenexa's employees. 27. During their employment with Kenexa, Lovelace and Podsiad had access to trade

secrets and other proprietary information of Kenexa, including: Kenexa Database, Training material for BlueLinx, BlueLinx E-Tag given to Lovelace and Podsiad on CD, Kenexa sourcing strategy designed for BlueLinx, access to Job Boards passwords and logins, and Kenexa business model for EPO programs. 28. The Agreement requires BlueLinx to maintain and protect Kenexa's confidential

information. The Agreement, paragraph 6, states: Both parties shall maintain as confidential and shall not disclose, copy, nor use for purposes other than the performance of this Agreement or as required by law, any information which relates to the other party's business affairs, trade secrets, technology, research and development, pricing, employee information or the
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terms of this Agreement ("Confidential Information") and each agrees to protect the Confidential Information with the same degree of care that it exercises to protect its own confidential information but in no event with less than reasonable care. Confidential Information shall not include Information, (a) previously known by a party without restriction, (b) was acquired by a party from a third party which was not, under an obligation to not to disclose such information, or (c) which is or becomes publicly available through no breach by a party of this Agreement. Upon expiration or termination of this Agreement or upon the request of the other party, each party agrees to returned (or destroy as evidenced in writing by an officer of receiving party's company) the other's Confidential Information. Breach of confidentiality may cause irreparable damage and, therefore, the injured party shall have the right to equitable and injunctive relief and to recover damages (including attorney's fees and costs) incurred in connection with any violation hereof. The provisions of this Section shall survive the termination or expiration of this Agreement. 29. The Agreement restricts BlueLinx's solicitation and hiring of Kenexa's

employees. The Agreement, paragraph 14, states: Kenexa and BlueLinx agree not to directly solicit the other party's employees (or individuals who were employees of the other party within the preceding thirty (30) days) with whom it came into contact as a result of this Agreement without the express written consent of the other party for a period of one (1) year from the last date of delivery of Services or Product under this Agreement. 30. Sometime in November 2006, without Kenexa's consent BlueLinx hired both

Lovelace and Podsiad. 31. BlueLinx breached the Agreement when it directly solicited and ultimately hired

Lovelace and Podsiad. 32. Lovelace and Podsiad Agreements, paragraph 5, provide that in "the event of a

breach of this Agreement, Employee agrees that Kenexa shall be entitled, in addition to any other available remedies, to temporary and permanent injunctive relief without the necessity of positing a bond and to expedited discovery." 33. The Lovelace Agreement and Podsiad Agreement, paragraph 2, identify Kenexa's

trade secrets and proprietary information in Lovelace's and Podsiad's possession and contain
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non-competition clauses, stating: a. Employee recognizes and acknowledges that, during the term of employment with Kenexa, Employee will have access to, learn, be provided with and, in some cases, prepare and create certain confidential and business methods; client and candidate information; client and candidate lists; prospective client and candidate lists and information; the terms of client contracts and proposals; product technology and product development strategies; pricing policies methods of delivering services and products, marketing and sales methods and strategies; identities of Kenexa and its customers employees, agents and representatives; employment and payroll information; forecasts, budgets and other nonpublic financial information; information about the internal organization and business structure of Kenexa and its customers and the work assignments or capabilities of Kenexa's employees and officers; and expansion plans, management policies and other business strategies and policies and software configurations, computer codes and instructions, computer inputs and outputs (regardless of the media on which stored or located), and computer processing systems, techniques, designs, architecture, and interfaces, all of which are of substantial value to Kenexa and/or its customers (the "Confidential Information"). For a period of one (1) year after Employee is no longer employed by Kenexa, Employee, without the express prior written consent of Kenexa, will not compete in any way with Kenexa, directly or indirectly, and will not consult with, accept employment with, or have any interest in any Business, whether alone or as an Interested Person, which engages in the performance of or provides the same or similar services as provided by Kenexa to any individual or entity or which competes with Kenexa, directly or indirectly, in any aspect of the business of Kenexa within one hundred (100) miles of any existing Kenexa location. Employee specifically agrees to this geographic restriction, since the principal means by which Kenexa's business is conducted is through e-mail, telephonic and mail communications. For a period of eighteen (18) months after Employee is no longer employed by Kenexa, Employee will not compete in any way with Kenexa, directly or indirectly, and will not, without the express prior written consent of Kenexa, directly or indirectly, whether alone or as an Interested Person, solicit, induce, divert, take away, do business with or render services to any client or candidate of Kenexa or a prospective client or candidate of Kenexa with whom Kenexa dealt, contacted or solicited within two (2) years preceding Employee's termination of employment with Kenexa. For a period of two (2) years after Employee is no longer employed by 6

b.

c.

d.
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Kenexa, Employee will not compete in any way with Kenexa, directly or indirectly, and will not, without the express prior written consent of Kenexa, directly or indirectly, whether alone or as an Interested Person, solicit, induce, divert, take away, do business with or render services to any client or candidate of Kenexa or a prospective client or candidate of Kenexa with whom Employee dealt, contacted or solicited on behalf of Kenexa within three (3) years preceding Employee's termination of employment with Kenexa. 34. After the purported and improper termination of the Agreement by BlueLinx,

BlueLinx improperly and without Kenexa's consent used a CareerBuilder posting site purchased by Kenexa under the names of Susan Podsiad and Leslie Lovelace as the user of the account. Kenexa did not set up accounts for Susan Podsiad and Leslie Lovelace to access CareerBuilder. Count I (Breach of Contract) 35. 36. Kenexa realleges the above paragraphs as if set forth at length herein. Kenexa and BlueLinx executed the Agreement for Kenexa to provide products

and serves to BlueLinx for sixty (60) months. 37. BlueLinx breached the Agreement when it failed to pay Kenexa for its products

and services according to the Agreement. 38. with Kenexa. 39. BlueLinx breached the Agreement when it hired Kenexa's former employees, BlueLinx breached the Agreement when it wrongfully terminated the Agreement

Lovelace and Podsiad. 40. BlueLinx breached the Agreement when it used Kenexa's confidential

Information outside of the Agreement. 41.
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Count II (Declaratory Judgment) 42. 43. Kenexa realleges the above paragraphs as if set forth at length herein. According to the Agreement, BlueLinx was required to pay Kenexa for a sixty

(60) month period. 44. 45. Kenexa asserts that BlueLinx breached the Agreement, which BlueLinx disputes. Kenexa seeks a declaration that BlueLinx breached the Agreement by failing to

object or to pay for services and products and anticipatorily breached the Agreement by untimely and improperly terminating without cause. 46. There exists, therefore, an actual controversy that is subject to determination by

declaratory judgment pursuant to 28 U.S.C.A. §2201. Count III (Intentional Interference with Contractual Relations) 47. 48. 49. Kenexa realleges the above paragraphs as if set forth at length herein. BlueLinx knew of the Lovelace Agreement and the Podsiad Agreement. Lovelace and Podsiad breached the confidentiality and non-competition

provisions of their agreements when they accepted employment with BlueLinx and when they used Kenexa's Confidential Information and trade secrets during their employment with BlueLinx. 50. BlueLinx intentionally, and without justification, solicited and hired Lovelace and

Podsiad, which was a significant factor in causing the breach of the Lovelace Agreement and Podsiad Agreement. 51. Kenexa was damaged as a result of BlueLinx's intentional interference with

contractual relations.
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Count IV (Misappropriation of Trade Secrets) 52. 53. Kenexa realleges the above paragraphs as if set forth at length herein. Kenexa's Confidential Information is highly valuable and confidential assets and

trade secrets of the company that are protected from public disclosure and are not shared with third parties. 54. Kenexa's research, pricing information, costs or other financial information,

manner of operation, plans, processes, marketing and recruiting efforts are protected as trade secrets. 55. Kenexa never provided Podsiad, Lovelace, or BlueLinx with written consent or

permission to use its Confidential Information or trade secrets. 56. BlueLinx obtained and used Kenexa's trade secrets to gain advantage, to interfere

with Kenexa's business, and to otherwise benefit themselves or third parties to the great detriment of Kenexa. 57. BlueLinx misappropriated Kenexa's trade secrets in violation of 6 Delaware

Code, Chapter 20. 58. Kenexa has been damaged as a direct and proximate cause of BlueLinx's

misappropriation of Kenexa's trade secrets. WHEREFORE, Plaintiff Kenexa Technology, Inc. prays for judgment against Defendants BlueLinx Corporation, as follows: 1. Preliminary and permanent injunction, enjoining BlueLinx from employing Kenexa's past and present employees and from using its Confidential Information;
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2. Damages for breach contract, including future losses through the term of the Agreement; 3. Interest at the rate of one (1%) percent per month from the date of the breach; 4. Declaratory judgment; 5. Costs and fees, including reasonable attorneys' fees; 6. Pre and post judgment interest; and 7. Any other relief the Court deems appropriate.

SEITZ, VAN OGTROP & GREEN, P.A /s/ Kevin A. Guerke R. KARL HILL, ESQ. (DE2747) KEVIN A. GUERKE, ESQ. (DE4096) 222 Delaware Avenue, Suite 1500 P. O. Box 68 Wilmington, DE 19899 (302) 888-0600 Attorneys for Plaintiff

Dated: May 3, 2007

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CERTIFICATE OF SERVICE I, Kevin A. Guerke, Esquire, hereby certify that on this 3rd day of May 2007, the attached document was electronically filed with the Clerk of the Court using CM/ECF and was electronically mailed to the following counsel:

Donald J. Wolfe, Jr. Philip A. Rovner David E. Moore Potter, Anderson & Corroon LLP Hercules Plaza P.O. Box 951 Wilmington, DE 19899 [email protected] [email protected] [email protected]

/s/ Kevin A. Guerke R. Karl Hill, Esquire (Bar No. 2747) Kevin A. Guerke, Esquire (Bar. No. 4096) SEITZ VAN OGTROP & GREEN, P.A. 222 Delaware Avenue, Suite 1500 P.O. Box 68 Wilmington, DE 19899 (302) 888-0600 [email protected]

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