Exhibit 10.24


 


EXECUTIVE EMPLOYMENT AND NON-COMPETITION

AGREEMENT


 


BY AND BETWEEN


 


REFCO GROUP LTD., LLC


 


AND


 


DENNIS KLEJNA


 


JULY 30, 2004


 





















 


EXECUTIVE EMPLOYMENT AND NON-COMPETITION AGREEMENT


 


This EXECUTIVE EMPLOYMENT
AND NON-COMPETITION AGREEMENT (this “Agreement”), dated as of July 30, 2004,
by and between REFCO GROUP LTD., LLC, a Delaware limited liability company (the
“Company”), and Dennis Klejna (the “Executive”),
shall become effective upon the Effective Date (as defined below).


 


WITNESSETH:


 


WHEREAS, the Executive
currently serves as the Executive Vice President and General Counsel of the
Company;


 


WHEREAS, concurrently with
the execution hereof, Thomas H. Lee Equity Fund V, L.P. and certain of its
affiliates (collectively, the “Buyers”) and
the holders of Membership Interests of
the Company are entering
into that certain Equity Purchase and Merger Agreement (the “Purchase
Agreement”), whereby,
pursuant to the transactions described therein (the “Transactions”), the Buyers will acquire a majority ownership
interest in the Company;


 


WHEREAS, in connection with
the Transactions, the Executive will receive the opportunity to purchase Class
A Common Units of the Company (the “Class A Common  Units”)
on the same terms and at the same price as the Buyers and Phillip R. Bennett
and the opportunity to receive awards of Class B Common Units of the Company
(the “Class B  Common Units”);


 


WHEREAS, in connection with
the Transactions, the Buyers and the Company desire to ensure the continued and
valued services of the Executive to the Company and the Executive desires to
continue to be employed by the Company;


 


WHEREAS, the Company desires
to be assured that the confidential information and goodwill of the Company
will be preserved for the exclusive benefit of the Company; and


 


WHEREAS, in consideration
for (i) the continued employment of the Executive by the Company, (ii) the
opportunity of the Executive to purchase the Class A Common Units, (iii) the ability
of the Executive to receive awards of Class B Common Units, (iv) the mutual
covenants and promises contained herein and intending to be legally bound thereby
and (v) for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged;


 


NOW, THEREFORE, the Company
and the Executive hereby agree as follows:


 


1.                                       EMPLOYMENT. The Company agrees to employ the Executive, and the Executive agrees to
be employed by the Company, for the period set forth in Section 2, in
the positions and with the duties and responsibilities set forth in Section
3, and upon the other terms and conditions provided herein.


 


2.                                       EMPLOYMENT TERM. The employment of the Executive by the
Company pursuant to this Agreement shall be for the period commencing on the
closing date for the transactions contemplated by the Purchase Agreement (such
date, the “Effective Date”) through
and ending on February 28, 2007 unless earlier terminated pursuant to the
provisions of


 


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Section 5 hereof (as such period may be extended
pursuant to the immediately following sentence, the “Employment
Term”). Beginning on February 28,
2007 and on the last day of each fiscal year of the Company thereafter (each a “Reset  Date”), the
Employment Term shall be automatically extended so as to terminate one year
after such Reset Date, unless earlier terminated pursuant to the terms of this
Agreement. Notwithstanding anything herein to the contrary, this Agreement will
automatically terminate upon termination of the Purchase Agreement prior to the
Effective Date.


 


3.                                       POSITIONS AND DUTIES.


 


(a)                                  During the Employment Term, the Executive’s position
shall be the Executive Vice President and General Counsel of the Company, or
such other position of equivalent seniority as may be determined by the Company’s
Board of Managers (the “Board”); provided,
however, that at all times the Executive shall report directly to the Chief
Executive Officer of the Company. The Executive’s responsibilities shall be
carried out with the advice and counsel of the Board, and the Chief Executive
Officer of the Company.


 


(b)                                 During the Employment Term, the Executive
shall devote his full business time and attention to the business and affairs
of the Company and its affiliated companies (as defined below), and shall
utilize the Executive’s best efforts to discharge faithfully and efficiently
the duties and responsibilities delegated and assigned to the Executive, except
for usual, ordinary, and customary periods of vacation and absence due to
illness; provided, however, that the Executive may (i) serve on
non-profit industry-related, civic or charitable boards or committees, (ii)
deliver lectures and fulfill speaking engagements and (iii) manage the Executive’s
personal investments, so long as such activities do not significantly interfere
with the performance and fulfillment of the Executive’s duties and responsibilities
as an employee of the Company in accordance with this Agreement; provided,
however, that such activities will not, in the reasonable judgment of
the Board, constitute an actual or potential conflict of interest with the
Company or an affiliated company. As used in this Agreement, the term “affiliated
company,” “affiliated companies”
or “affiliate” shall
include any entity or person controlled by, controlling, or under common
control with the Company; provided, however, that such term shall
not include any entity that is affiliated with the Company solely because such
entity is controlled by any of the Buyers.


 


(c)                                  All services that the Executive may render to
the Company or any of its affiliated companies in any capacity during the
Employment Term shall be deemed to be services required by this Agreement and
in consideration for the compensation provided for herein.


 


4.                                       COMPENSATION AND RELATED MATTERS.


 


(a)                                  Base Salary. During the Employment Term, the Executive shall receive an annual
base salary (“Base Salary”) of Six Hundred and
Fifty Thousand Dollars ($650,000). The
Base Salary shall be payable in installments in accordance with


 


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the Company’s general
payroll practices for executives in effect at the time such payment is made,
and shall be subject to all necessary withholding taxes, FICA contributions and
similar deductions. During the Employment Term, the Executive’s Base Salary
shall be subject to such increases (but not decreases) as may be determined
from time to time by the Board in its sole discretion; provided, however, that the
Executive’s Base Salary shall be reviewed by the Board at least annually, with
a view to making such upward adjustment, if any, as the Board deems
appropriate. Any increased Base Salary shall become the new “Base Salary” for
purposes of this Agreement. Payments of Base Salary to the Executive shall not
be deemed exclusive and shall not prevent the Executive from participating in
any employee benefit plans, programs, or arrangements of the Company in which
the Executive is entitled to participate. Payments of Base Salary to the
Executive shall not in any way limit or reduce any other obligation of the
Company hereunder, and no other compensation, benefit, or payment to the
Executive hereunder shall in any way limit or reduce the obligation of the
Company regarding the Executive’s Base Salary hereunder.


 


(b)                                 Annual Bonus. During the Employment Term, the Executive
shall be eligible to receive an annual performance bonus for each fiscal year
of the Company, payable in cash (each an “Annual Bonus”), which shall be determined in
accordance with the Management Bonus Pool Plan to be adopted by the Board as of
the Effective Date, as amended, modified or supplemented from time to time.


 


(c)                                  Incentive Compensation Awards. The Executive shall be eligible to
participate in equity-based compensation plans, including option plans,
restricted or phantom membership interest plans and other equity incentive
plans as shall be determined by the Board from time to time during the
Employment Tenn. It is acknowledged that on the Effective Date the Executive
shall have the option to purchase Class A Common Units on the same terms and at
the same price as the Buyers and Phillip R. Bennett and to receive awards of
Class B Common Units.


 


(d)                                 Employee Benefits.


 


(i)                                     Incentive, Savings, and Retirement Plans. During the Employment Term, the Executive
shall be entitled to participate in all incentive, savings, and retirement
plans, programs, and arrangements applicable generally to other senior
executives at the Company.


 


(ii)                                  Welfare Benefit Plans. During the Employment Term, the Executive
and/or the Executive’s family, as the case may be, shall be eligible to
participate in and shall receive all benefits under all welfare benefits plans,
programs, and arrangements provided by the Company (including, without
limitation, medical, prescription, dental, disability, salary continuance,
employee life, group life, accidental death, and travel accident insurance
plans, programs, and arrangements) to the extent applicable generally to other
senior executives at the Company. The Company may, at its election and for its
benefit, obtain insurance against the disability, accidental loss


 


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or death of the Executive
(e.g. “Key Man Insurance”) and the Executive shall submit to such physical
examinations and supply such information as may be reasonably required in
connection with the obtainment thereof.


 


(e)                                  Expenses. During the Employment Term, the Executive shall be entitled to
receive prompt reimbursement for all reasonable expenses incurred by the
Executive in performing the Executive’s duties and responsibilities hereunder.
The Executive shall comply with such reasonable limitations and reporting
requirements with respect to such expenses as the Board may establish from time
to time.


 


(f)                                    Vacation. During the Employment Term, Executive shall be entitled to twenty
(20) business days paid vacation in each calendar year, which shall be taken at
such times as are consistent with Executive’s responsibilities hereunder. Any
vacation days unused at the end of any calendar year shall be forfeited.


 


(g)                                 Compensation for Partial Periods. Except as otherwise noted herein, any
payments payable to the Executive pursuant to this Agreement shall be pro-rated
for any partial period of service applicable to such payment.


 


5.                                       TERMINATION OF EMPLOYMENT.


 


(a)                                  Death. The Executive’s employment shall terminate automatically upon the Executive’s
death during the Employment Term.


 


(b)                                 Disability. If the Board determines in good faith that the Disability (as defined
below) of the Executive has occurred during the Employment Term, the Company may
give the Executive notice of its intention to terminate the Executive’s employment
(a “Disability Notice of Termination”). In
such event, the Executive’s employment hereunder shall terminate effective on
the 30th day after receipt of such Disability Notice of Termination by the
Executive (the “Disability Effective  Date”),
provided that, within the 30-day period after such receipt, the
Executive shall not have returned to full-time performance of the Executive’s
duties. For purposes of this Agreement, “Disability”
shall mean the absence of the Executive or the inability of the Executive to
perform his duties hereunder for an aggregate of one hundred eighty (180) days
within any given period of three hundred sixty (360) consecutive days, as a
result of incapacity of the Executive, due to bodily injury or disease or any
other mental or physical illness, which may be permanent with regard to the
Executive’s ability to return to work in his full capacity; provided, however,
that the Executive’s return to work after receipt of a Disability Notice of
Termination shall not require or cause the resetting of the one hundred eighty
(180) day measurement period set forth above for determining a Disability. Any
determination of Disability shall be made by the Board or the Chief Executive
Officer of the Company in consultation with a qualified physician or physicians
selected by the Board and/or the Company’s insurers and reasonably acceptable
to the Executive (or, if applicable, his legal representative). During any
period (not to exceed 360 days) in which the Board believes that the


 


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Executive’s incapacity could
reasonably be expected to result in a Disability, the Board shall be entitled
to appoint an interim Executive Vice President and General Counsel of the
Company, without such appointment in and of itself triggering the “Good Reason”
termination provisions set forth herein.


 


(c)                                  Termination by the Company for Cause. The Company may terminate the Executive’s
employment hereunder at any time during the Employment Term for Cause (as
defined below).


 


For purposes of this
Agreement, “Cause” shall mean only any of the following:


 


(i)                                     the willful failure or refusal of the Executive
to perform substantially the Executive’s duties hereunder (other than any such
failure resulting from the Executive being disabled) that is not cured within
thirty (30) days after a written demand for substantial performance is
delivered to the Executive by the Board which specifically identifies the
manner in which the Board believes the Executive has not substantially
performed the Executive’s duties; provided, however, that the
Board’s dissatisfaction with the quality of the Executive’s performance
hereunder shall not constitute the failure of the Executive to substantially
perform his duties within the meaning of this Section 5(c)(i);


 


(ii)                                  the engaging by the Executive in illegal
conduct or willful misconduct that, in either case, is materially detrimental
to the Company, monetarily or reputationally;


 


(iii)                the commitment by the Executive of any act of
fraud, embezzlement or misappropriation of funds;


 


(iv)                              the conviction by the Executive of, or the
plea by the Executive of nolo  contendere to, any felony; provided,
however, that after indictment of the Executive, the Company may place
the Executive on paid leave of absence until resolution or dismissal of such
indictment; or


 


(v)                                 the material breach by the Executive of Section
7 or Section 8 hereof that is not cured by the Executive within
thirty (30) days of written notice of such breach by the Board.


 


Any act, or failure to act,
based upon authority given pursuant to a resolution duly adopted by the Board
or based upon the advice of counsel for the Company shall be conclusively
presumed to be done, or omitted to be done, by the Executive in good faith and
in the best interests of the Company, and no act or failure to act, on the
Executive’s part, shall be deemed “willful” unless done by the Executive not in
good faith and without a reasonable belief that the Executive’s actions or
omissions were in the best interest of the Company.


 


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(d)                                 Termination by the Company without Cause. The Company may terminate the Executive’s
employment hereunder at any time during the Employment Term without Cause.


 


(e)                                  Termination by the Executive for Good Reason. The Executive may terminate the Executive’s
employment hereunder at any time during the Employment Term for Good Reason (as
defined below).


 


For
purposes of this Agreement, “Good Reason” shall mean only any of
the following (without the Executive’s written consent):


 


(i)                                     any material diminution in the Executive’s
Base Salary, bonus opportunity or benefits, as contemplated by Sections 4(a),
4(b) and 4(d) of this Agreement (other than as provided in Section
5(b)), excluding for this purpose any isolated, insubstantial, and
inadvertent actions not taken in bad faith and which are remedied by the
Company promptly after receipt of written notice thereof given by the
Executive;


 


(ii)                                  any material diminution of Executive’s
responsibilities or changes to his reporting relationship.


 


(iii)                               any failure by the Company to comply with any
of its obligations under this Agreement, other than any isolated,
insubstantial, and inadvertent actions not taken in bad faith and which are
remedied by the company promptly after receipt of written notice thereof given
by the Executive: or


 


(iv)                              the Company’s requiring the Executive to
reside in or be based at any office or location other than the New York, New
York metropolitan area.


 


(f)                                    Termination by the Executive Voluntarily. The Executive may terminate the Executive’s
employment hereunder at any time during the Employment Term for any reason
other than Good Reason, or for no reason.


 


(g)                                 Notice of Termination. Any termination of the Executive’s
employment hereunder by the Company or by the Executive (other than a
termination due to the Executive’s death) shall be communicated by a Notice of
Termination (as defined below) to the other party hereto. For purposes of this
Agreement, a “Notice of Termination” shall mean a
notice which (i) indicates the specific termination provision in this Agreement
relied upon, (ii) in the case of a termination for Disability, Cause, or Good
Reason, sets forth the facts and circumstances claimed to provide a basis for
termination of the Executive’s employment under the provision so indicated, and
(iii) specifies the Date of Termination (as defined below); provided, however,
that, notwithstanding any provision of this Agreement to the contrary, a Notice
of Termination given in connection with a termination for Good Reason shall be
given by the Executive within a reasonable period of time, not to exceed sixty
(60) days, following the occurrence of the event giving rise to such right of
termination. The failure by the Company or the Executive to set forth in the
Notice of Termination any fact or


 


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circumstance which
contributes to a showing of Disability, Cause, or Good Reason shall not waive
any right of the Company or the Executive hereunder or preclude the Company or
the Executive from asserting such fact or circumstance in enforcing the Company’s
or the Executive’s rights hereunder.


 


(h)                                 Date of Termination. For purposes of this Agreement, the “Date of Termination”
shall mean the effective date of termination of the Executive’s
employment hereunder, which date shall be: (i) if the Executive’s employment is
terminated by the Executive’s death, the date of the Executive’s death; (ii) if
the Executive’s employment is terminated because of the Executive’s Disability,
the Disability Effective Date or such later date (up to thirty (30) days)
specified in the Disability Notice of Termination; (iii) if the Executive’s
employment is terminated by the Company for Cause or by the Executive for Good
Reason, the date on which the Notice of Termination is given; and (iv) if the
Executive’s employment is terminated by either party for any other reason, the
date specified in the Notice of Termination, which date shall in no event be
earlier than the 30th day after the date such notice is given (such thirty (30)
day period, the “Notice  Period”); provided,
however, that in lieu of a thirty (30) day Notice Period, the
Company may accept or give a shorter notice period (or no notice period) and
place the Executive on paid leave during the Notice Period.


 


6.                                       OBLIGATIONS OF THE COMPANY UPON TERMINATION.


 


(a)                                  Termination by the Company Without Cause or
by the Executive for Good Reason. If, during the Employment Term, the Company
shall terminate the Executive’s employment hereunder without Cause, or the
Executive shall terminate the Executive’s employment for Good Reason, the
Executive shall be entitled to receive, as his exclusive right and remedy in
respect of such termination: (i) the payment of (A) all Accrued Obligations plus
(B) at the time the Company pays its executives bonuses in accordance with its
general payroll policies, the Pro Rata Bonus, plus (C) severance pay
equal to one-twelfth (1/12) of the Executive’s Base
Salary and Annual Bonus as of the Date of Termination for each of the first
eighteen (18) months from and following the Date of Termination, payable in
accordance with the Company’s regular pay schedule and policies and (ii) the
provision of the Welfare Benefit Continuation. For purpose of determining the
severance pay, the Annual Bonus as of the Date of Termination shall be deemed
to be equal to the Annual Bonus paid to the Executive for the most recently
completed fiscal year of the Company. With respect to his receipt of payment of
the amounts set forth in this Section 6(a), the Executive shall have no duty to
mitigate, except as provided below concerning the Welfare Benefit Continuation.


 


For purposes of this
Agreement, “Accrued Obligations” shall
mean, (1) all Base Salary earned by the Executive but unpaid as of the Date of
Termination, (2) reimbursement for any and all monies advance in connection
with the Executive’s employment for reasonable and necessary expenses incurred
by the Executive through the Date of Termination and (3) all other payments and
benefits to which


 


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the Executive may be
entitled under the terms of any applicable compensation arrangement or benefit
plan or program of the Company. For purposes of this Agreement, “Pro Rata Bonus” shall mean, as to any fiscal year of
the Company in which the Executive’s employment with the Company is terminated,
an amount equal to that pro rata portion of the Executive’s Annual Bonus which,
but for the Executive’s termination of employment, would have been earned by
the Executive during such year. Such pro rata portion shall be determined based
upon a formula, the denominator of which shall be 365 and the numerator of
which shall be the number of days during the Company’s fiscal year in question
which the Executive was employed by the Company on active status (including any
period of paid leave in lieu of a notice period, as contemplated by Section 5(h) of this Agreement). For purposes of this Agreement, “Welfare
Benefit Continuation” shall mean provision of welfare
benefits such that the Executive shall continue to be covered, upon the same
terms and conditions described in Section 4(d)(ii) hereof, by the same
or equivalent medical, dental and life insurance coverage as in effect for the
Executive and the Executive’s family immediately prior to the Date of
Termination until the earlier of(x) the expiration of the period for which the
Executive receives severance pay pursuant to this Agreement and (y) the date
the Executive has commenced new employment and has thereby become eligible for
other benefits coverage, subject to the Executive’s rights under the
Consolidated Omnibus Budget Reconciliation Act (COBRA).


 


(b)                                 Death. If the Executive’s employment is terminated by reason of the
Executive’s death during the Employment Term, this Agreement shall terminate
without further obligations to the Executive’s heirs, executors, administrators
or other legal representatives under this Agreement, other than for payment of
all Accrued Obligations and payment of the Pro Rata Bonus.


 


(c)                                  Disability. If the Executive’s employment is terminated by reason of the Executive’s
Disability during the Employment Term, this Agreement shall terminate without
further obligations to the Executive, other than for payment of all Accrued
Obligations and payment of the Pro Rata Bonus.


 


(d)                                 Termination by the Company for Cause. If the Executive’s employment is terminated
for Cause during the Employment Term, this Agreement shall terminate without
further obligations to the Executive other than the obligation to pay to the
Executive his Accrued Obligations through the Date of Termination, to the
extent theretofore unpaid.


 


(e)                                  Termination by the Executive. If the Executive voluntarily terminates the
Executive’s employment during the Employment Term, excluding a termination for
Good Reason, this Agreement shall terminate without further obligations to the
Executive, other than for Accrued Obligations.


 


(f)                                    Accrued Benefits. Notwithstanding anything else herein to the
contrary, all Accrued Obligations to which the Executive (or his estate or
beneficiary) is entitled shall be payable in cash promptly upon termination of his
employment,


 


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except as otherwise
specifically provided herein, or under the terms of any applicable policy, plan
or program.


 


(g)                                 Complete Payment. The payments and other benefits to be made
or to be extended to the Executive under the provisions of this Section 6
upon termination of the Executive’s employment shall be in complete
satisfaction of any and all payments that would otherwise be due the Executive
had he remained employed by the Company during the remainder of the Employment
Term and the Company shall have no further obligation to make any payment or
extend any benefit to the Executive pursuant to this Agreement or otherwise
upon or after such termination. Except as specifically provided in this entitled
to any compensation, severance or other benefits from the Company or any of its
subsidiaries or affiliates upon the termination of this Agreement for any
reason whatsoever. Acceptance by the Executive of performance by the Company
shall constitute full settlement of any claims that the Executive might
otherwise assert against the Company, its affiliates or any of their respective
equityholders, partners, directors, officers, employees or agents relating to
the Company’s obligations under this Agreement. The Executive shall not be
entitled to any severance or other payments upon termination of employment
except pursuant to this Agreement. The Executive shall not be entitled to any
severance or other payments upon termination of employment except pursuant to this
Agreement.


 


7.                                       PROPRIETARY INFORMATION; INVENTIONS IN THE
FIELD.


 


(a)                                  Proprietary Information. In the course of service to the Company,
the Executive will have access to confidential information regarding the
organization, business and finances of the Company and its affiliated
companies, including products, services, designs, methods, techniques, systems,
specifications, know-how, strategic or technical data, marketing research data,
product research and development data, sales techniques, confidential customer
lists and information, sources of supply and trade secrets, all of which are
confidential and may be proprietary and are owned or used by the Company, or
any of its affiliates. Such information shall hereinafter be called “Proprietary Information” and shall include any and all items
enumerated in the preceding sentence and coming within the scope of the
business of the Company or any of its affiliated companies as to which the
Executive may have access, whether conceived or developed by others or by the
Executive alone or with others during the period of service to the Company,
whether or not conceived or developed during regular working hours. Proprietary
Information shall not include any records, data or information which are (i) in
the public domain during or after the Employment Term provided the same are not
in the public domain as a consequence of disclosure directly or indirectly by
the Executive in violation of this Agreement, (ii) required to be disclosed by
law, or (iii) reasonably required to be disclosed in defending any suit,
proceeding or investigation to which the Executive is a party.


 


(b)                                 Fiduciary Obligations. The Executive agrees that Proprietary
Information is of critical importance to the Company and a violation of this Section
7 would


 


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seriously and irreparably
impair and damage the Company’s business. The Executive agrees that he shall
keep all Proprietary Information in a fiduciary capacity for the sole benefit
of the Company.


 


(c)                                  Non-Use and Non-Disclosure. The Executive shall not during the
Employment Term or at any time thereafter: (i) disclose, directly or
indirectly, any Proprietary Information to any person, other than any person
who, in the reasonable judgment of the Executive, needs to know such
Proprietary Information or such other persons to whom the Executive has been
specifically instructed to make disclosure by the Board and in all such cases
only to the extent required in the course of the Executive’s service to the
Company; or (ii) use any Proprietary Information, directly or indirectly, for
the Executive’s own benefit or for the benefit of any person or entity other
than the Company.


 


(d)                                 Assignment of Inventions. The Executive agrees to assign and transfer
to the Company or its designee, without any separate remuneration or
compensation, his entire right, title and interest in and to all Inventions in
the Field (as defined below), together with all United States and foreign
rights with respect thereto, and, at the Company’s expense, to execute and
deliver all appropriate patent and copyright applications for securing United
States and foreign patents and copyrights on Inventions in the Field and to
perform all lawful acts, including giving testimony, and to execute and deliver
all such instruments that may be necessary or proper to vest all such
Inventions in the Field and patents and copyrights with respect thereto in the
Company, and to assist the Company in the prosecution or defense of any
interference which may be declared involving any of said patent applications,
patents, copyright applications or copyrights. For the purposes of this
Agreement, the words “Inventions in
the Field” shall include any discovery, process, design, development,
improvement, application, technique, or invention, whether patentable or
copyrightable or not and whether reduced to practice or not, conceived,
created, discovered, invented or made by the Executive, individually or jointly
with others (whether on or off the Company’s premises or during or after normal
working hours), while in the employ of the Company or any of its affiliated
companies, and which was or is directly or indirectly related to the business
of the Company or any of its affiliated companies or suppliers or customers, or
which resulted or results from any work performed by, or use of any Documents,
Property or other personal property of the Company (whether tangible or
intangible and whether owned, leased or contracted for) by, any executive,
employee or agent of the Company or any of its affiliated companies.


 


(e)                                  Return of Documents. All (i) notes, memoranda, reports, lists,
letters, documents, records, specifications, software programs, software code,
data, tapes and other media of every kind, form and description relating to or
within the scope of the business of the Company or any of its affiliated
companies and any copies, in whole or in part, thereof (collectively, the “Documents”),
whether or not prepared by the Executive, and (ii) all computers,
cellular telephones, pagers, credit and/or calling cards, keys, access cards or
other personal property of or relating to the 


 


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Company or any of its
affiliated companies (collectively, the “Property”)
shall be the sole and exclusive property of the Company. The Executive shall
safeguard all Documents and Property and shall surrender to the Company within
five (5) days of any Date of
Termination, or at such earlier time or times as the Board or its designee may
specify, all Documents and Property then in the Executive’s possession or
control; provided, however, that the Executive may retain a copy
of any personnel-related materials relating to his employment-with the Company,
including, but not limited to, this Agreement, any compensation or benefit plan
or program, or any awards or evidence of participation in such plans or
programs, or any other communications to or from the Company related to
Executive’s employment. During the Employment Term, the Executive shall not make,
use or permit to be used any Documents or Property otherwise than for the
benefit of the Company. After the Employment Term, the Executive shall not use
or permit others to use any Documents or Property.


 


(f)                                    Acknowledgement. This Section 7 shall not be
construed to unreasonably restrict the Executive’s ability to disclose
Proprietary Information in an arbitration or court proceeding regarding the
assertion of, or defense against, any claim of breach of this Agreement.


 


8.                                       RESTRICTIONS ON ACTIVITIES OF THE EXECUTIVE.


 


(a)                                  Acknowledgments. The Executive and Company acknowledge and
agree that the Executive is being employed hereunder in a key capacity with the
Company and that the Company is engaged in a highly competitive business and
that the success of the Company’s business in the marketplace depends upon its
goodwill and reputation for quality and dependability. The Executive and the
Company further acknowledge and agree that (i) reasonable limits may be placed
on the Executive’s ability to compete against the Company and its affiliated
companies as provided herein to the extent that they protect and preserve the
legitimate business interests and goodwill of the Company and/or its affiliated
companies and (ii) such limits are (A) in consideration for the ability of the
Executive to purchase Class A Common Units in connection with the Transactions,
the Executive’s ability to receive awards of Class B Common Units, and the
continued employment of the Executive by the Company, (B) the result of
arms-length negotiations between the parties, (C) reasonable in scope and
duration, and (D) necessary to protect the legitimate business interests of the
Company and its affiliated companies. In addition, the Executive acknowledges
(1) that the business of the Company and its affiliated companies is
international in scope and without geographical limitation and (2)
notwithstanding the state of incorporation or formation or principal office or
location of the Company or any of its affiliated companies, or any of their respective
executives or employees (including the Executive), it is expected that the
Company will have business activities and have valuable business relationships
within its industry throughout the United States and the world. The Executive
acknowledges that he has carefully read this Agreement and has given careful
consideration to the restraints imposed upon the Executive by this Agreement,
and is in full accord as to their necessity for the


 


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reasonable and proper
protection of the Proprietary Information, whether now existing or to be
developed in the future. The Executive expressly acknowledges and agrees that
each and every restraint imposed by this Agreement is reasonable with respect
to subject matter, time period and geographical area.


 


(b)                                 Non-Competition Restrictions. During the Non-Competition Period (as
defined below), the Executive will not, anywhere in the Territory (as defined
below), engage or participate in, directly or indirectly, alone or as
principal, agent, employee, employer, consultant, investor or partner of, or
assist in the management of, or provide advisory or other services to, or own
any stock or any other ownership interest in, or make any financial investment
in, any business or entity which is Competitive with the Company (as defined
below); provided. however, that the ownership of not more than two percent (2%)
of the outstanding securities of any class of securities listed on a national
exchange or inter-dealer quotation system shall not constitute a violation of
this Section 8(b). For purposes of this Agreement, a business or entity
shall be considered “Competitive with the  Company” as of any point in time during the Non-Competition Period if it
competes with (A) the products then marketed or sold by the Company and/or any
of its affiliated companies and as such products may be improved and/or
modified, (B) the services then marketed, sold or provided by the Company
and/or any of its affiliated companies and as such services may be improved
and/or modified or (C) the products and/or services that the Company and/or any
of its affiliated companies is then actively developing, designing, marketing,
producing or supplying in the future including, without limitation, the business
of providing financial products or services, including those involving or
related to exchange-traded derivatives, managed futures, prime brokerage
services, fixed income securities, foreign exchange, equities, over-the-counter
derivatives and asset management of structured products related to the Company’s
core business. For purposes of this Agreement, the “Non-Competition Period” shall
mean the period commencing on the Effective Date and ending eighteen (18)
months after the date of termination of the Executive’s employment with the
Company, whether such termination is pursuant to this Agreement or otherwise.
For purposes of this Agreement, “Territory”
shall mean the States of New York and Illinois and every other State or foreign
country where the Company and/or any of its affiliated companies maintains
employees, owns or leases property or otherwise conducts business during the
Non-Competition Period. Nothing contained herein shall preclude the Executive
from performing purely legal services, if and to the extent, that performing
such services would violate applicable state law.


 


(c)                                  Non-Solicitation and No-Hire Restrictions. During the Non-Competition Period, the
Executive will not, directly or indirectly, (i) solicit, or attempt to solicit
any officer, director, consultant or executive of the Company or any of its
affiliated companies (each such individual, a “Company Affiliate”) to
leave his or her engagement with the Company or such affiliated company, (ii)
hire any Company Affiliate or (iii) call upon, solicit, divert or attempt to
solicit or divert from the Company or any of its affiliated companies any of their
customers or suppliers or


 


13





















 


potential or prospective
customers or suppliers of whom the Executive was aware were potential customers
prior to or during the Employment Term in any manner that harms or interferes
with such person’s relationship with the Company; provided, however,
that nothing in this Section 8(c) shall be deemed to prohibit the Executive
from calling upon or soliciting a customer or supplier of the Company or any
affiliated company during the Non-Competition Period if such action relates
solely to a business which is not Competitive with the Company; provided,
further, that nothing in this Section 8(c) shall be deemed to
prohibit the Executive from (A) soliciting or hiring any Company Affiliate if
such Company Affiliate is a member of the Executive’s immediate family; (B)
placing advertisements in newspapers or other media of general circulation
advertising employment opportunities; and (C) hiring any Company Affiliate who
responds to such advertisements without any prior notice thereof by the
Executive or any of his Affiliates; provided that such Company Affiliate was
not otherwise solicited by the Executive or any of his Affiliates in violation
of this Agreement.


 


(d)                                 Non-Disparagement Restrictions. Each of the Executive and the Company
covenants and agrees that during the Non-Competition Period, such party will
not, directly or indirectly, either in writing or by any other medium, make any
disparaging, derogatory or negative statement, comment or remark about the
other party or any of its affiliated companies, or Thomas H. Lee Partners or
any of its affiliates, or any of their respective officers, directors,
employees, affiliates, subsidiaries, successors and assigns, as the case may
be; provided, however, that either party may make such
statements, comments or remarks as are necessary to comply with law.


 


(e)                                  The Executive’s Skills and Abilities. THE EXECUTIVE REPRESENTS AND WARRANTS THAT
THE KNOWLEDGE, SKILLS AND ABILITIES HE POSSESSES AT THE TIME OF COMMENCEMENT OF
EMPLOYMENT HEREUNDER ARE SUFFICIENT TO PERMIT HIM, IN THE EVENT OF TERMINATION
OF HIS EMPLOYMENT HEREUNDER, TO EARN A LIVELIHOOD SATISFACTORY TO HIMSELF
WITHOUT VIOLATING ANY PROVISION OF SECTION 7 OR SECTION 8 HEREOF,
FOR EXAMPLE, BY USING SUCH KNOWLEDGE, SKILLS AND ABILITIES, OR SOME OF THEM, IN
THE SERVICE OF A BUSINESS THAT IS NOT COMPETITIVE WITH THE COMPANY.


 


(f)                                    The Executive will
not circumvent the purpose of any restriction contained in this Section 8
by engaging in business outside the Territory through remote means such as
telephone, correspondence or computerized communication.


 


9.                                       REPRESENTATIONS AND WARRANTIES.


 


(a)                                  The Company represents and warrants to the
Executive that the execution, delivery, and performance by the Company of this
Agreement have been duly authorized by all necessary limited liability company
action of the Company and do not and will not conflict with or result in a violation
of any provision of, or


 


14





















 


constitute a default under,
any material contract, agreement, instrument, or obligation to which the
Company is a party or by which it is bound.


 


(b)                                 The Executive represents and warrants to the
Company that the execution, delivery, and performance by the Executive of this
Agreement do not and will not conflict with or result in a violation of any
provision of, or constitute a default under, any material contract, agreement,
instrument, or obligation to which the Executive is a party or by which the
Executive is bound.


 


10.                                 INDEMNIFICATION; DIRECTORS AND OFFICERS
INSURANCE. The Company
agrees that in connection with the Executive’s service to the Company pursuant
hereto, the Executive shall be entitled to the benefit of any indemnification
provisions in the Company’s Limited Liability Company Agreement and/or any of
its affiliated companies and any director and officer liability insurance
coverage carried by the Company and/or any of its affiliated companies, if any.
During the Employment Term, the Company and Refco LLC will maintain a policy of
directors and officers liability insurance covering the Executive, which
provides coverage limits of at least $2 million.


 


11.                                 INJUNCTIVE RELIEF. In recognition of the fact that a breach by
the Executive of any of the provisions of Section 7 or Section 8
hereof will cause irreparable damage to the Company for which monetary damages
alone will not constitute an adequate remedy, the Company shall be entitled as
a matter of right (without being required to prove damages or furnish any bond
or other security) to obtain a restraining order, an injunction, an order of
specific performance, or other equitable or extraordinary relief from any court
of competent jurisdiction restraining any further violation of such provisions
by the Executive or requiring the Executive to perform the Executive’s
obligations hereunder. Such right to equitable or extraordinary relief shall
not be exclusive but shall be in addition to all other rights and remedies to
which the Company may be entitled at law or in equity, including without
limitation the right to recover monetary damages for the breach by the
Executive of any of the provisions of this Agreement.


 


12.                                 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to any choice of law or conflict of law provision or rule (whether of
the State of New York or any other jurisdiction) that would cause the
application of the law of any jurisdiction other than the State of New York.


 


13.                                 NOTICES. All notices, requests and demands to or upon the parties hereto to be
effective shall be in writing, by facsimile, by overnight courier or by
registered or certified mail, postage prepaid and return receipt requested, and
shall be deemed to have been duly given or made upon: (a) delivery by hand, (b)
one business day after being sent by nationally recognized overnight courier;
or (c) in the case of transmission by facsimile, when confirmation of receipt
is obtained. Such communications shall be addressed and directed to the parties
as follows (or to such other address as either party shall designate by giving
like notice of such change to the other party):


 


15





















 


	
  (i)

  	
  if to the Company:

  
	
   

  	
   

  
	
   

  	
  Refco Group Ltd., LLC

  
	
   

  	
  One World Financial Center

  
	
   

  	
  200 Liberty Street

  
	
   

  	
  New York, NY 10281

  
	
   

  	
  Attention: Board of
  Managers

  
	
   

  	
   

  
	
   

  	
  with a copy (which shall
  not constitute notice to the Company) to:

  
	
   

  	
   

  
	
   

  	
  Weil, Gotshal & Manges
  LLP

  
	
   

  	
  100 Federal Street

  
	
   

  	
  Boston, MA 02110

  
	
   

  	
  Attention: James Westra

  
	
   

  	
   

  
	
  (ii)

  	
  if to the Executive:

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  with a copy (which shall
  not constitute notice to the Executive) to:

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


or to such other address as
the party to whom notice is given may have previously furnished to the other in
writing in the manner set forth above.


 


14.                                 BINDING EFFECT; NO THIRD PARTY BENEFIT.


 


(a)                                  This Agreement is personal to the Executive
and without the prior written consent of the Company shall not be assignable by
the Executive. This Agreement shall inure to the benefit of and shall be
enforceable by the Executive and the Executive’s legal representatives.


 


(b)                                 This Agreement shall inure to the benefit of
and be binding upon the Company and its successors and assigns.


 


(c)                                  The Company shall require any successor or
assign (whether direct or indirect, by purchase, merger, consolidation, or
otherwise) to all or substantially all the business and/or assets of the
Company, by agreement in writing, expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession or assignment had taken place. As
used in this Agreement, the “Company” shall mean the Company as hereinabove
defined and any successor or assign to its business and/or assets as aforesaid
which executes and delivers this Agreement


 


16





















 


provided for in this Section
14(c) or which otherwise becomes bound by all the terms and provisions of
this Agreement by operation of law.


 


(d)                                 Nothing in this Agreement, express or
implied, is intended to or shall confer upon any person other than the parties
hereto, and their respective heirs, legal representatives, successors, and
permitted assigns, any rights, benefits, or remedies of any nature whatsoever
under or by reason of this Agreement.


 


15.                                 MISCELLANEOUS.


 


(a)                                  Amendment. This Agreement may not be modified or amended in any respect except
by an instrument in writing signed by each of the Company and the Executive. No
person, other than pursuant to a resolution of the Board or a committee
thereof, shall have authority on behalf of the Company to agree to modify,
amend, or waive any provision of this Agreement or anything in reference
thereto.


 


(b)                                 Waiver. Any term or condition of this Agreement may be waived at any time by
the party hereto which is entitled to have the benefit thereof, but such waiver
shall only be effective if evidenced by a writing signed by such party, and a
waiver on one occasion shall not be deemed to be a waiver of the same or any
other type of breach on a future occasion. No failure or delay by a party
hereto in exercising any right or power hereunder shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right or power.


 


(c)                                  Withholding Taxes. The Company may withhold from any amounts
payable under this Agreement such federal, state, local, or foreign taxes as
shall be required to be withheld pursuant to any applicable law or regulation.


 


(d)                                 Nonalienation of Benefits. The Executive shall not have any right to
pledge, hypothecate, anticipate, or in any way create a lien upon any payments
or other benefits provided under this Agreement; and no benefits payable
hereunder shall be assignable in anticipation of payment either by voluntary or
involuntary acts, or by operation of law, except by will or pursuant to the
laws of descent and distribution.


 


(e)                                  Attorneys’ Fees. The Executive and the Company agree that
the Company will pay all reasonable attorneys’ fees and expenses in respect of
(i) the negotiation of this Agreement, or (ii) any action or defense of this
Agreement brought in good faith by the Executive.


 


(f)                                    Severability. The parties agree that each provision
herein shall be treated as a separate and independent clause, and the
unenforceability of any one clause shall in no way impair the enforceability of
any other clauses of this Agreement. If any one or more provisions of this
Agreement is held to be invalid or unenforceable for any reason, including due
to being overbroad in scope activity, subject or otherwise: (i) this Agreement
shall be considered divisible; (ii) such provision


 


17





















 


shall be deemed inoperative
to the extent it is deemed invalid or unenforceable; and (iii) in all other
respects this Agreement shall remain full force and effect; provided, however,
that if any such provision maybe made valid or enforceable by limitation
thereof then such provision shall be deemed to be so limited and shall be valid
and/or enforceable to the maximum extent permitted by applicable law.


 


(g)                                 Entire Agreement. All of (i) this Agreement,
(ii) the Company’s Limited Liability Company Agreement, and (iii) that certain
Restricted Unit Agreement, to be dated as of the Effective Date and executed by
the Executive and the Company in connection with an award of any Class B Units
to the Executive, constitute the entire agreement and understanding of the
parties hereto concerning the Executive’s employment with the Company and from
and after the Effective Date, this Agreement shall supersede any other prior
negotiations, discussions, writings, agreements or understandings, both written
and oral, between the parties with respect to such subject matter.


 


(h)                                 Captions. The captions herein are inserted for convenience of reference only,
do not constitute a part of this Agreement, and shall not affect in any manner
the meaning or interpretation of this Agreement.


 


(i)                                     References. All references in this Agreement to Sections, subsections and other subdivisions
refer to the Sections, subsections and other subdivisions of this Agreement
unless expressly provided otherwise. The words “this Agreement,” “herein,” “hereof,”
“hereunder,” and words of similar import refer to this Agreement as a whole and
not to any particular subdivision unless expressly so limited. Whenever the
words “include,” “includes,” and “including” are used in this Agreement, such
words shall be deemed to be followed by the words “without limitation.” Words
in the singular form shall be construed to include the plural and vice versa,
unless the context otherwise requires.


 


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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed on its
behalf by its duly authorized officer, and the Executive has executed this
Agreement, as of the date first above set forth.


 


 


	
  EXECUTIVE

  	
  REFCO GROUP LTD., LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/
  DENNIS KLEJNA

  	
   

  	
  By:

  	
  /s/
  PHILLIP BENNETT

  	
   

  
	
  Dennis Klejna

  	
  Name:

  	
   

  	
  Phillip
  Bennett

  	
   

  
	
   

  	
  Title:

  	
   

  	
  President

  	
   

  
								



 


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