Exhibit 10.36


 


AGREEMENT AND PLAN OF MERGER


 


This AGREEMENT AND PLAN OF MERGER, dated as
of [            ],
2005 (this “Agreement”), is among Credit Suisse Anlagestiftung, a [                    ]
(“Credit Suisse”), Pearl Holding Limited, a [                 ]
(“Pearl Holding”), Vega Invest (Guernsey) Limited, a [                   ]
(“Vega Invest”), and Partners Group Private Equity Performance Holding
Limited, a [                   ]
(“Performance Holding” and, together with Vega Invest, Pearl Holding and
Credit Suisse, each a “Stockholder” and, collectively, the “Stockholders”),
PG Direct Invest No. 10, Inc., a Delaware corporation wholly owned by the
Stockholders (“Merger Co.”), and Refco Inc., a Delaware corporation (the
“Company”).


 


WHEREAS, Merger Co. is a holder of Class A
Common Units of New Refco Group Ltd., LLC, a Delaware limited liability company
(“Refco Group”);


 


WHEREAS, the Company intends to undertake an
initial public offering of its equity interests at a time when it is the sole
owner of all of the outstanding interests in Refco Group, and in connection
therewith, the holders of the membership interests in Refco Group desire to
contribute or otherwise transfer their membership interests in Refco Group to
the Company (the “Reorganization”), in order that Refco Group may become
a direct wholly-owned subsidiary of the Company and the Company may effectuate
the initial public offering through an offering of its common stock to the
public (the “Offering”);


 


WHEREAS, in connection with the Reorganization,
the parties hereto desire that Merger Co. be merged with and into the Company
(the “Merger”), with the Stockholders receiving common stock, par value
$0.001 per share, of the Company, as the surviving corporation in the Merger (“Surviving
Corporation Common Stock”) in exchange for the capital stock of Merger Co.
in the Merger;


 


WHEREAS, the Board of Directors of the
Company has declared a dividend to the holders of record of the Surviving
Corporation Common Stock immediately following the Reorganization in an
aggregate amount equal to the proceeds, if any, received by the Company in
connection with the exercise by the underwriters in the Offering of their
option to purchase up to an additional 3,750,000 shares of common stock of the
Company;


 


WHEREAS, the respective Boards of Directors
of the Company and Merger Co. have approved and declared advisable this
Agreement and the Merger, on the terms and subject to the conditions provided
for in this Agreement;


 


WHEREAS, for federal income tax purposes, it is
intended that the Merger shall qualify as a reorganization within the meaning
of Section 368(a) of the Internal Revenue Code of 1986, as amended, and the
rules and regulations promulgated thereunder, and that this Agreement
constitutes a plan of reorganization; and


 





















 


WHEREAS, immediately following the execution
and delivery of this Agreement, each of the Stockholders, as all of the
stockholders of Merger Co., and Refco Group, as the sole stockholder of the
Company, will execute and deliver a written consent adopting this Agreement
(the “Merger Co. Stockholder Approval” and the “Company Stockholder
Approval”, respectively).


 


NOW, THEREFORE, in consideration of the
representations, warranties, covenants and agreements contained in this
Agreement, and intending to be legally bound hereby, the Stockholders, Merger Co.
and the Company hereby agree as follows:


 


ARTICLE I



The Merger


 


Section 1.1.                    The Merger.  Upon the terms and subject to the conditions
set forth in this Agreement, and in accordance with the General Corporation Law
of the State of Delaware (the “DGCL”), at the Effective Time (as defined
below) Merger Co. shall be merged with and into the Company, and the separate
corporate existence of Merger Co. shall thereupon cease, and the Company shall
be the surviving corporation in the Merger (the “Surviving Corporation”).


 


Section 1.2.                    Closing.  The closing of the Merger (the “Closing”)
shall take place at 10:00 a.m. (New York City time) on the date of the
satisfaction or waiver of the conditions to closing set forth in Article V
(the “Closing Date”), at the offices of Weil, Gotshal & Manges LLP,
767 Fifth Avenue, New York, New York 10153, unless another time, date or place
is agreed to by the parties hereto.


 


Section 1.3.                    Effective Time.  Subject to the provisions of this Agreement, as
soon as practicable on the Closing Date the Company shall file with the
Secretary of State of the State of Delaware a certificate of merger, executed
in accordance with the relevant provisions of the DGCL (the “Certificate of
Merger”).  The Merger shall become
effective upon the filing of the Certificate of Merger or at such later time as
is agreed to by the parties hereto and specified in the Certificate of Merger
(the time at which the Merger becomes effective is herein referred to as the “Effective
Time”).


 


Section 1.4.                    Effects of the Merger.  The Merger shall have the effects set forth
in the DGCL.  Without limiting the
generality of the foregoing, and subject thereto, at the Effective Time, all
the properties, rights, privileges, powers and franchises of the Company and
Merger Co. shall vest in the Surviving Corporation, and all debts, liabilities
and duties of the Company and Merger Co. shall become the debts, liabilities
and duties of the Surviving Corporation.


 


Section 1.5.                    Certificate of
Incorporation and By-laws of the Surviving Corporation.


 


(a)           The Amended and Restated Certificate
of Incorporation of the Company, as in effect immediately prior to the
Effective Time, shall be the certificate of


 


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incorporation of the Surviving Corporation until
thereafter amended as provided therein or by applicable law.


 


(b)           The bylaws of Company, as in effect
immediately prior to the Effective Time, shall be the bylaws of the Surviving
Corporation until thereafter amended as provided therein or by applicable law.


 


Section 1.6.                    Directors and Officers of
the Surviving Corporation.


 


(a)           The directors of the Company
immediately prior to the Effective Time shall be the directors of the Surviving
Corporation immediately following the Effective Time, to serve as such until
their respective successors are duly elected or appointed and qualified or
their earlier death, resignation or removal in accordance with the certificate
of incorporation and bylaws of the Surviving Corporation.


 


(b)           The officers of the Company
immediately prior to the Effective Time shall be the officers of the Surviving
Corporation until their respective successors are duly appointed and qualified
or their earlier death, resignation or removal in accordance with the
certificate of incorporation and bylaws of the Surviving Corporation.


 


ARTICLE II



Effect of the Merger on the Capital Stock of the

Constituent Corporations


 


Section 2.1.                    Effect on Capital Stock.  At the Effective Time, by virtue of the
Merger and without any action on the part of the holder of any shares of common
stock, par value $0.001 per share, of the Company (“Company Common Stock”),
or any shares of capital stock of Merger Co.:


 


(a)           Conversion
of Capital Stock of Merger Co.  Each
issued and outstanding share of capital stock, par value $1.00 per share, of
Merger Co. (“Merger Co. Capital Stock”) shall be converted into [              ]
validly issued, fully paid and nonassessable shares of Surviving Corporation
Common Stock.


 


(b)           Company Common Stock. Each
share of Company Common Stock shall remain outstanding as one validly issued,
fully paid and nonassessable share of Surviving Corporation Common Stock.


 


ARTICLE III



Representations and Warranties of the Company 


 


The Company represents and warrants to the Stockholders
and Merger Co. as follows:


 


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Section 3.1.                    Organization, Standing
and Corporate Power.


 


(a)           The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite corporate power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby.


 


Section 3.2.                    Authority;
Noncontravention; Voting Requirements.


 


(a)           The Company has all necessary
corporate power and authority to execute and deliver this Agreement and,
subject to obtaining the Company Stockholder Approval, to perform its
obligations hereunder and to consummate the Merger.  The execution, delivery and performance by
the Company of this Agreement, and the consummation of the Merger, have been
duly authorized and approved by its Board of Directors, and except for
obtaining the Company Stockholder Approval for the adoption of this Agreement,
no other corporate action on the part of the Company is necessary to authorize
the execution, delivery and performance by the Company of this Agreement and
the consummation by it of the Merger. 
This Agreement has been duly executed and delivered by the Company and,
assuming due authorization, execution and delivery hereof by the other parties
hereto, constitutes a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except that such
enforceability (i) may be limited by bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other similar laws of general
application affecting or relating to the enforcement of creditors’ rights
generally and (ii) is subject to general principles of equity, whether
considered in a proceeding at law or in equity (the “Bankruptcy and Equity
Exception”).


 


(b)           Neither the execution and delivery of
this Agreement by the Company nor the consummation by the Company of the Merger,
nor compliance by the Company with any of the terms or provisions hereof, will
(i) conflict with or violate any provision of the Amended and Restated Certificate
of Incorporation or bylaws of the Company or (ii) violate any law, judgment,
writ or injunction of any governmental authority applicable to the Company or
any of its properties or assets.  Except
for the Company Stockholder Approval, no consent, waiver, approval, order,
permit or authorization of, or declaration or filing with, or notification to,
any person or governmental body is required on the part of the Company in
connection with the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby.


 


Section 3.3.                    Issuance of Surviving
Corporation Common Stock; Capitalization of the Surviving Corporation.  The Surviving Corporation Common Stock to be
issued as a result of the Merger has been duly authorized and, when issued as
contemplated by this Agreement, will be validly issued, fully paid and
nonassessable.  After giving effect to
the Reorganization and the Offering, the capitalization of the Surviving
Corporation will be as set forth in the prospectus filed by the Company with
the Securities and Exchange Commission with respect to the Offering.


 


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ARTICLE IV



Representations and Warranties of Merger Co. and Stockholder


 


Merger Co. and the Stockholders, jointly and
severally, represent and warrant to the Company as follows:


 


Section 4.1.                    Organization, Standing
and Corporate Power.


 


(a)           Merger Co. is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite corporate power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby.


 


(b)           Each Stockholder is an entity duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation or formation and has all requisite power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby.


 


Section 4.2.                    Merger Co. Authority;
Noncontravention.


 


(a)           Merger Co. has all necessary
corporate power and authority to execute and deliver this Agreement and,
subject to obtaining the Merger Co. Stockholder Approval, to perform its
obligations hereunder and to consummate the Merger.  The execution, delivery and performance by Merger
Co. of this Agreement, and the consummation of the Merger, have been duly
authorized and approved by its Board of Directors, and except for obtaining the
Merger Co. Stockholder Approval for the adoption of this Agreement, no other
corporate action on the part of Merger Co. is necessary to authorize the
execution, delivery and performance by Merger Co. of this Agreement and the
consummation by it of the Merger.  This
Agreement has been duly executed and delivered by Merger Co. and, assuming due
authorization, execution and delivery hereof by the other parties hereto,
constitutes a legal, valid and binding obligation of Merger Co, enforceable against
Merger Co in accordance with its terms, except that such enforceability may be
limited by the Bankruptcy and Equity Exception.


 


(b)           Neither the execution and delivery of
this Agreement by Merger Co. nor the consummation by Merger Co. of the Merger,
nor compliance by Merger Co. with any of the terms or provisions hereof, will
(i) conflict with or violate any provision of the Certificate of Incorporation
or bylaws of the Merger Co. or (ii) violate any law, judgment, writ or
injunction of any governmental authority applicable to Merger Co. or any of its
properties or assets.  Except for the
Merger Co. Stockholder Approval, no consent, waiver, approval, order, permit or
authorization of, or declaration or filing with, or notification to, any person
or governmental body is required on the part of Merger Co. in connection with
the execution and delivery of this Agreement or the consummation of the
transactions contemplated hereby.


 


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Section 4.3.                    Stockholder Authority;
Noncontravention.


 


(a)           Each
Stockholder has all necessary power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby.  The execution, delivery and performance by each
Stockholder of this Agreement have been duly authorized and approved and no
other action on the part of any Stockholder is necessary to authorize the
execution, delivery and performance by the Stockholders of this Agreement and
the consummation by it of the transactions contemplated hereby.  This Agreement has been duly executed and
delivered by each Stockholder and, assuming due authorization, execution and
delivery hereof by the other parties hereto, constitutes a legal, valid and
binding obligation of each Stockholder, enforceable against each Stockholder in
accordance with its terms, except that such enforceability may be limited by
the Bankruptcy and Equity Exception.


 


(b)           Neither the execution and delivery of
this Agreement by each Stockholder nor compliance by each Stockholder with any
of the terms or provisions hereof, will (i) conflict with or violate any
provision of any governing documents of such Stockholder or (ii) violate any law,
judgment, writ or injunction of any governmental authority applicable to any Stockholder
or any of its properties or assets.  No
consent, waiver, approval, order, permit or authorization of, or declaration or
filing with, or notification to, any person or governmental body is required on
the part of any Stockholder in connection with the execution and delivery of
this Agreement or the consummation of the transactions contemplated hereby.


 


Section 4.4.                    Capitalization.


 


(a)           The authorized capital stock of
Merger Co. consists of 12,500 shares of Merger Co. Capital Stock.  As of the date hereof, there are, and as of
the Closing Date, there will be, 10,000 shares of Merger Co. Captial Stock
issued and outstanding, of which (i) 4,500 shares are owned, beneficially and
of record, by Pearl Holding, (ii) 1,500 shares are owned, beneficially and of
record, by Vega Invest, (iii) 3,000 shares are owned, beneficially and of
record, by Performance Holdings; and (iv) 1,000 shares are owned, beneficially
and of record, by Credit Suisse.  All of
the issued and outstanding shares of Merger Co. Capital Stock were duly
authorized for issuance and are validly issued, fully paid and non-assessable.


 


(b)           Except as set forth in Section
4.4(a) above, Merger Co. has no authorized, issued and outstanding or
reserved capital stock and there is no existing option, warrant, call, right,
or contract of any character to which Merger Co. is a party requiring, and
there are no securities of Merger Co. outstanding which upon conversion or
exchange would require, the issuance of any shares of capital stock of Merger
Co. or other securities convertible into, exchangeable for or evidencing the
right to subscribe for or purchase shares of capital stock of Merger Co.  Merger Co. is not a party to any voting trust
or other contract with respect to the voting, redemption, sale, transfer or other
disposition of the Merger Co. Capital Stock.


 


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Section 4.5.                    Operations of Merger Co.  Merger Co. was formed solely for the purpose
of holding membership interests in Refco Group.  Merger Co. has engaged in no business other
than as set forth in this Section 4.5, has no liabilities, and has
conducted its operations solely as contemplated hereby.


 


Section 4.6.                    Investment Intent and
Eligibility.  Each
Stockholder is an “accredited investor” within the meaning of Rule
501(a) under Regulation D promulgated under the Securities Act of 1933, as
amended (the “Securities Act”) by the Securities and Exchange
Commission.  The Surviving Corporation
Common Stock to be acquired by each Stockholder pursuant to this Agreement is
being acquired for such Stockholder’s own account, not as a nominee or agent
for any other person and without a view to the distribution of such Surviving
Corporation Common Stock or any interest therein in violation of the Securities
Act or any state securities laws.


 


ARTICLE V



Conditions Precedent


 


Section 5.1.                    Conditions to Each Party’s
Obligation to Effect the Merger.  The
respective obligations of each party hereto to effect the Merger shall be
subject to the satisfaction on or prior to the Closing Date of the following
conditions:


 


(a)           Company Stockholder Approval.  The Company Stockholder Approval shall have
been obtained in accordance with applicable law and the Amended and Restated Certificate
of Incorporation and bylaws of the Company.


 


(b)           Merger Co. Stockholder Approval.  The Merger Co. Stockholder Approval shall
have been obtained in accordance with applicable law and the Certificate of Incorporation
and bylaws of Merger Co.


 


ARTICLE VI



Indemnification


 


Section 6.1.                    Obligation to Indemnify.


 


(a)           Following the Closing, the Company
hereby agrees to save, indemnify and hold harmless each Stockholder from and
against, and in respect of, and shall on demand reimburse each Stockholder for
all loss, liability, claim, damage, deficiency, injury and all costs and
expenses (including all attorney fees and other defense costs) (collectively “Losses”)
suffered or incurred by Stockholder in respect of any misrepresentation or
breach of warranty by the Company contained in this Agreement.


 


(b)           Following the Closing, each Stockholder
hereby agrees to save, indemnify, and hold harmless the Company from and
against, and in respect of, and shall on demand reimburse the Company for all
Losses suffered or incurred by the Company in


 


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respect of any misrepresentation or breach of warranty
by the Stockholders or Merger Co. contained in this Agreement.


 


(c)           The representations and warranties
contained in this Agreement shall survive the Merger.


 


ARTICLE VII



Miscellaneous


 


Section 7.1.                    Entire Agreement.  This Agreement and the other documents
referred to herein represent the entire understanding and agreement between the
parties hereto with respect to the subject matter hereof.


 


Section 7.2.                    Amendments and Waivers.  This Agreement can be amended, supplemented
or changed, and any provision hereof can be waived, only by written instrument
making specific reference to this Agreement signed by the party against whom
enforcement of any such amendment, supplement, modification or waiver is
sought.  No action taken pursuant to this
Agreement, including any investigation by or on behalf of any party, shall be
deemed to constitute a waiver by the party taking such action of compliance
with any representation, warranty, or agreement contained herein.  The waiver by any party hereto of a breach of
any provision of this Agreement shall not operate or be construed as a further
or continuing waiver of such breach or as a waiver of any other or subsequent
breach.  No failure on the part of any
party to exercise, and no delay in exercising, any right, power or remedy
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of such right, power or remedy by such party preclude any other or
further exercise thereof or the exercise of any other right, power or remedy.


 


Section 7.3.                    Binding Effect; Assignment.  This Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors and
permitted assigns.  Nothing in this Agreement
shall create or be deemed to create any third party beneficiary rights in any
person or entity not a party to this Agreement except as expressly contemplated
by this Agreement.  No assignment of this
Agreement or of any rights or obligations hereunder may be made by any of the
parties hereto without the prior written consent of the other parties and any
attempted assignment without the required consents shall be void.  No assignment of any obligations hereunder
shall relieve the parties hereto of any such obligations.


 


Section 7.4.                    Counterparts.  This Agreement may be executed in any number
of counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement.


 


Section 7.5.                    Governing Law; Jurisdiction; Waiver of Jury
Trial.  This Agreement, and all
claims or causes of action (whether in contract or tort) that may be based
upon, arise out of or relate to this Agreement or the negotiation, execution or


 


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performance of this Agreement (including any claim or cause of action
based upon, arising out of or related to any representation or warranty made in
or in connection with this Agreement), shall be governed by and construed in
accordance with the internal laws of the State of Delaware.  Any action against any party relating to the
foregoing shall be brought in any federal or state court of competent jurisdiction
located within the State of Delaware, and the parties hereto hereby irrevocably
submit to the non-exclusive jurisdiction of any federal or state court located
within the State of Delaware over any such action.  THE PARTIES HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY OBJECTION THAT THEY MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY SUCH ACTION BROUGHT IN SUCH COURT OR ANY DEFENSE OF
INCONVENIENT FORUM FOR THE MAINTENANCE OF SUCH ACTION.


 


Section 7.6.                    Notices. 
All notices, requests and other communications to any party hereunder
shall be in writing and shall be deemed given if delivered personally,
facsimiled (which is confirmed) or sent by overnight courier (providing proof
of delivery) to the parties at the following addresses:


 


If to the Stockholders or Merger Co., to:


 


 


 


If to the Company, to:


 


	
  Refco Inc.

  	
   

  	
   

  
	
  One World
  Financial Center

  	
   

  	
   

  
	
  200 Liberty
  Street

  
	
  New York,
  New York 10281

  
	
  Attention:

  	
   

  	
  Chief
  Executive Officer

  
	
  Facsimile:

  	
   

  	
  (212)
  693-7686

  
					



 


or such other address or facsimile number as
such party may hereafter specify by like notice to the other parties
hereto.  All such notices, requests and
other communications shall be deemed received on the date of receipt by the
recipient thereof if received prior to 5:00 P.M. in the place of receipt and
such day is a business day in the place of receipt.  Otherwise, any such notice, request or
communication shall be deemed not to have been received until the next
succeeding business day in the place of receipt.


 


Section 7.7.                    Severability.  If any term or other provision of this
Agreement is invalid, illegal, or incapable of being enforced by any law or
public policy, all other terms or provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal substance
of the transactions contemplated hereby is not affected in any manner
materially adverse to any party.  Upon
such determination that any term or other provision is invalid, illegal, or
incapable


 


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of being enforced, the parties hereto shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the parties as
closely as possible in an acceptable manner in order that the transactions
contemplated hereby are consummated as originally contemplated to the greatest
extent possible.


 


 


[THE REMAINDER
OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]


 


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IN WITNESS WHEREOF, the undersigned have
executed this Agreement and Plan of Merger as of the date first written above.


 


	
   

  	
  REFCO INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


 


SIGNATURE PAGE
TO AGREEMENT AND PLAN OF MERGER


 





















 


	
   

  	
  PG DIRECT INVEST NO. 10, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 





















 


	
   

  	
  CREDIT SUISSE ANLAGESTIFTUNG

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PEARL HOLDING LIMITED, by its

  investment manager Pearl Management

  Limited

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  VEGA INVEST (GUERNSEY)
  LIMITED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PARTNERS GROUP PRIVATE EQUITY

  PERFORMANCE HOLDING LIMITED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title: