On May 3, Xerox announced that the settlement agreement it had reached with Carl Icahn and Darwin Deason on May 1, 2018 has expired in accordance with its terms. As previously stated, the agreement would have become effective upon execution of stipulations discontinuing the Deason litigation with respect to the Xerox defendants. In the absence of such stipulations, the agreement expired at 8:00 p.m. ET on May 3, 2018.
Xerox and its Board of Directors recognize the uncertainty caused by the developments of the past several days among the company’s investors and other stakeholders.
The Xerox Board and management team remain focused on driving continued improvement in financial and operational performance, and will consider all options to create value for the company and its shareholders.
Shortly after Xerox sent this release, Icahn and Deason released the following, announcing their open letter to Xerox shareholders.
CARL ICAHN AND DARWIN DEASON RELEASE OPEN LETTER TO XEROX SHAREHOLDERS
Xerox’s Two Largest Individual Shareholders Confirm Expiration of Previously Announced Settlement Agreement
Xerox Board Commits Additional Intentional Breaches of Fiduciary Duties
Call for Xerox Board to Terminate Proposed Transaction with Fuji, Hire John Visentin as CEO and Resign as Directors
New York, New York, May 4, 2018 – Today Carl Icahn and Darwin Deason released the following open letter to shareholders of Xerox Corporation (NYSE: XRX):
At 8:00 pm ET on Thursday night, the settlement agreement we entered into with Xerox and a unanimous Xerox Board earlier this week expired without the Xerox Board permitting the agreement to take effect, once again intentionally violating their fiduciary duties to Xerox shareholders by pursuing their own brazen self-interest.
This occurred just 48 hours after Xerox issued a press release that included the following unanimous statement from the Xerox Board:
“an immediate resolution of the pending litigation and proxy contest is in the best interest of [Xerox] and all [its] stakeholders.”
This inexplicable turn of events occurred for one reason only: the Xerox Board recklessly refused to follow through with the leadership and governance changes we agreed to, demanding unprecedented additional approvals for their own personal self-interest.
An expansive release from us and the Company was not enough. Fully insured, robust indemnification rights were not enough. The Xerox Board declined to take the actions they unanimously approved as in the best interest of Xerox shareholders unless they obtained additional unprecedented protections from the court, which all parties (and the judge!) agree are not required under applicable law.
The brazen self-interest of the Xerox Board defies description.
Over the next few months, we intend to see that “massively conflicted” Jeff Jacobson and old guard directors like Bob Keegan, Ann Reese and Chuck Prince, who have already done so much damage to the company, and are continuing to do more damage with these actions, are held fully and personally liable for their misconduct. Similarly, we intend to see that Fujifilm is held fully liable as an aider and abettor of the continuing breaches of fiduciary duties by those directors.
We will continue our fight to rescue and revitalize Xerox, as so many of our fellow shareholders have been encouraging us to do.
Carl Icahn Darwin Deason