On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8953-06.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Winkelstein and LeWinn.
Plaintiff entered into an agreement with the predecessor to defendant Nexxar Group, Inc. (Nexxar) under which he was employed as its President and Chief Executive Officer. Plaintiff also entered into an agreement with defendant Financial Technology Ventures, L.P. (FT Ventures) and other investors for the purchase of stock in Nexxar's predecessor. Plaintiff's employment agreement with Nexxar contains a provision for arbitration of disputes. Plaintiff's stock purchase agreement with FT Ventures does not contain any arbitration provision. In this action, plaintiff asserts claims against both Nexxar and FT Ventures. The primary issue presented by the appeal is whether plaintiff may be forced to arbitrate his claims against FT Ventures, even though his agreement with FT Ventures does not provide for arbitration, because those claims are allegedly intertwined with and dependent upon his employment agreement with Nexxar. We conclude that plaintiff may be required to arbitrate only those claims that he has specifically agreed to submit to arbitration, and that the omission of any provision for arbitration in the stock purchase agreement with FT Ventures and other investors shows that plaintiff did not agree to arbitrate any claims he might assert against FT Ventures.
Plaintiff, an experienced businessman, developed a plan for formation of a worldwide money transfer company that would engage in the transfer of funds from residents of one country to residents of another country for family, business and other purposes. One part of plaintiff's plan involved acquisition of existing companies engaged in the money transfer business.*fn1
To undertake this plan, plaintiff formed a wholly-owned corporation, Axxa Group, Inc. (AGI), in which he deposited his intellectual property and related business plan information. The implementation of plaintiff's plan required him to raise between $50 and $200 million in capital. To raise this money, plaintiff sought venture capital partners.
In June 2003, plaintiff entered into an agreement with defendant FT Ventures, which had pre-existing relationships with global banking institutions and knowledge of the money transfer industry, to invest sufficient money in AGI to implement part of his business plan. FT Ventures agreed that plaintiff would continue to serve as CEO, President and a member of AGI's Board of Directors. Plaintiff and FT Ventures initially executed a "term sheet" to reflect the terms of their joint venture agreement.
Shortly thereafter, FT Ventures pursued negotiations for acquisition of Uno Money Transfer Co. (Uno), a Brazilian money transfer company. The acquisition of Uno was apparently finalized at the same time that plaintiff, AGI and FT Ventures formalized the arrangements set forth in the term sheet by the execution on November 25, 2003 of the two agreements around which this appeal revolves.
The first was an agreement for the purchase of stock in AGI, which at that time was renamed Tri-Axxa and later renamed Nexxar. The signatories to the stock purchase agreement were not only plaintiff and Nexxar's predecessor Tri-Axxa but also FT Ventures and three other investors in the corporation. This agreement did not contain any provision for arbitration of disputes that might arise thereunder.
The second was an agreement by Nexxar's predecessor TriAxxa to employ plaintiff as its President and CEO. The only signatories to the employment agreement were plaintiff and the corporation. This agreement contained a provision for arbitration of any dispute between the parties, the specific terms of which are quoted and discussed later in this opinion.
Plaintiff's complaint alleges that after the execution of the stock purchase and employment agreements, he became aware "for the first time that Uno's transactions and processes originating in Brazil and resulting in the transfer of funds out of Brazil, were in violation of Brazilian law and might also be in violation of United States law." The complaint further alleges that "FT Ventures had been advised by its counsel in 2003 in connection with its due diligence investigation of Uno, that the Brazilian northbound traffic of Uno could be illegal and that FT Ventures should seek an opinion of Brazilian counsel on the issue[,]" but that "FT Ventures had apparently chosen to disregard its counsel's advice and rather to rely upon representations and warranties by Uno that its procedures were in compliance with Brazilian law." Plaintiff alleges that he confronted the FT Ventures's representatives on the Nexxar board of directors with this information and demanded that they disclose the information to other board members. However, according to plaintiff, FT Ventures refused to do this and subsequently caused the Nexxar board first to suspend and later to terminate him from his position as President and CEO of Nexxar.
Based on these factual allegations, plaintiff asserted claims against FT Ventures for fraudulent misrepresentations, intentional omission or concealment, negligent misrepresentation, breach of contract and the duty of good faith and fair dealing, and tortious interference with his employment contract with Nexxar. Plaintiff's complaint also asserted a claim against Nexxar for breach of ...