05.03.18
Xerox announced that it has entered into an agreement with Carl Icahn and Darwin Deason that will resolve the pending proxy contest in connection with the company’s 2018 Annual Meeting of Shareholders, as well as the ongoing litigation against Xerox and its directors related to the company’s proposed combination with Fuji Xerox. The agreement does not affect any claims of Deason against Fujifilm for aiding and abetting.
The agreement will become effective upon execution by the court of stipulations discontinuing the Deason litigations as to the Xerox defendants. The agreement will automatically terminate if the court does not act before 8:00 p.m. ET on May 3, 2018. Pursuant to the terms of the agreement, upon effectiveness:
• Xerox will appoint six new members to its Board of Directors: Keith Cozza, Nicholas Graziano, Scott Letier, Jay Firestone, Randolph Read and John Visentin.
• Jeff Jacobson will resign as CEO of Xerox and as a member of its Board of Directors.
• Robert J. Keegan, Charles Prince, Ann N. Reese, William Curt Hunter, Sara Martinez Tucker and Stephen H. Rusckowski will also each resign from the Board of Directors of Xerox.
Subsequent to joining the Xerox Board of Directors, Keith Cozza, the CEO of Icahn Enterprises L.P., is expected to be elected chairman of the Board of Directors of Xerox and John Visentin is expected to be appointed as the new vice chairman and CEO of Xerox. Gregory Brown, Joseph Echevarria and Cheryl Krongard will continue to serve as members of Xerox’s Board of Directors.
As part of the agreement, Xerox and Carl Icahn will withdraw their respective nominations of any other director candidates for election at the 2018 Annual Meeting of Shareholders. Xerox will continue to waive the advance notice bylaw for the 2018 Annual Meeting of Shareholders until May 30, 2018. The 2018 Annual Meeting of Shareholders will be postponed to a later date.
The company has been informed that subsequent to the agreement becoming effective, the new Board of Directors plans to meet immediately to, among other things, begin a process to evaluate all strategic alternatives to maximize shareholder value, including terminating or restructuring Xerox’s relationship with Fujifilm and the proposed transaction with Fujifilm.
The current Board of Directors of Xerox issued the following statement about the agreement:
“After careful consideration of shareholders’ feedback on the proposed combination with Fuji Xerox, Xerox approached Fujifilm regarding a potential increase in consideration to be received by Xerox shareholders. As yet, Fujifilm has not made a proposal to enhance the transaction terms.
Following the court’s decision last week to enjoin Xerox’s proposed combination with Fuji Xerox, the Board considered the significant risk and uncertainty of a prolonged litigation, during which the company would be prohibited from negotiating with Fujifilm, as well as the potential instability and business disruption during a proxy contest. As a result, the Xerox Board of Directors determined that an immediate resolution of the pending litigation and proxy contest is in the best interest of our company and all stakeholders.
This agreement will help ensure that Xerox and its employees will be able to continue to focus on serving customers and building on the company’s financial and operational performance.”
Carl Icahn issued the following statement about the agreement:
“We believe Friday’s decision and this agreement mark a watershed moment for corporate governance generally and for Xerox specifically. With new leadership in place, we believe Xerox will be much better positioned to take advantage of multiple potential value-enhancing opportunities, including restructuring its relationship with Fujifilm, our supposed ‘partner’ whose conduct over the last year is more unbelievable than what you see on fictional TV shows like House of Cards or Billions. Thanks to our efforts and the courage and conviction of Darwin Deason, this is once again an exciting time to be a Xerox stakeholder.”
Darwin Deason issued the following statement about the agreement:
“The future for Xerox is extremely bright. With John Visentin at the helm, receiving support and guidance from Carl Icahn and me, I am confident the alternatives for Xerox and its shareholders will be fully and expeditiously maximized. John is the right leader at the right time for Xerox.”
The agreement between Xerox, Mr. Icahn and Mr. Deason will be filed with the US Securities and Exchange Commission.
Director Biographies:
• Keith Cozza has been the president and CEO of Icahn Enterprises L.P., a diversified holding company engaged in a variety of businesses, including investment, automotive, energy, gaming, railcar, food packaging, metals, mining, real estate and home fashion, since February 2014. In addition, Cozza has served as COO of Icahn Capital LP, the subsidiary of Icahn Enterprises through which Carl C. Icahn manages investment funds, since February 2013. From February 2013 to February 2014, Cozza served as EVP of Icahn Enterprises. Cozza is also the CFO of Icahn Associates Holding LLC, a position he has held since 2006.
Cozza has been a director of Tropicana Entertainment Inc. since February 2014 and Icahn Enterprises L.P. since September 2012. In addition, he serves as a director of certain wholly-owned subsidiaries of Icahn Enterprises L.P., including Federal-Mogul Holdings LLC (formerly known as Federal-Mogul Holdings Corporation); Icahn Automotive Group LLC; and PSC Metals Inc.
• Giovanni (“John”) Visentin is expected to be the vice chairman and CEO of Xerox Corporation. Prior to being appointed to that role, Visentin was a senior advisor to the chairman of Exela Technologies and an operating partner for Advent International. He was also a consultant to Icahn Capital in connection with a proxy contest at Xerox Corporation from March 2018 to April 2018.
In October 2013, Visentin was named executive chairman and CEO of Novitex Enterprise Solutions following the acquisition of Pitney Bowes Management Services by funds affiliated with Apollo Global Management. In July 2017, Novitex closed on a business combination with SourceHOV, LLC and Quinpario Acquisition Corp. 2 to form Exela Technologies, becoming one of the largest global providers of transaction processing and enterprise information management solutions. Exela Technologies now trades on the NASDAQ under the ticker symbol XELA. Visentin was previously an advisor with Apollo Global Management and contributed to their February 2015 acquisition of Presidio, the leading provider of professional and managed services for advanced IT solutions, where he was chairman of the Board of Directors from February 2015 to November 2017. Visentin has managed multibillion dollar business units in the IT services industry (at each of Hewlett-Packard and IBM).
Jaffrey (“Jay”) A. Firestone has served as chairman and CEO at Prodigy Pictures Inc. since 2006. Previously, Firestone established Fireworks Entertainment in 1996. In 1998, Fireworks Entertainment was acquired by CanWest Global Communications Corporation and Firestone was named chairman and CEO. Firestone has served as a director of Voltari Corporation, a mobile data services provider indirectly controlled by Carl C. Icahn, since July 2011
Nicholas Graziano has served as portfolio manager of Icahn Capital, the entity through which Carl C. Icahn manages investment funds, since February 2018. Graziano was previously the founding partner and chief investment officer of the hedge fund Venetus Partners LP from June 2015 to August 2017. Prior to founding Venetus, Graziano was a partner and senior managing director at the hedge fund Corvex Management LP from December 2010 to March 2015. Graziano has served on the Board of Directors of Herbalife Ltd. since April 2018. Carl C. Icahn has non-controlling interests in Herbalife through the ownership of securities.
Randolph C. Read has been president and CEO of Nevada Strategic Credit Investments, LLC, an investment fund, since 2009. Read has served as an independent director of New York REIT, Inc., a publicly traded real estate investment trust, since December 2014, including as non-executive chairman of its board of directors since June 2015. Read has served as an independent director of Business Development Corporation of America, a business development company, since December 2014.
A. Scott Letier has been managing director of Deason Capital Services, LLC, (DCS) the family office for Darwin Deason, since July 2014. Prior to joining DCS, Letier was the managing director of JFO Group, LLC, the family office for the Jensen family, from September 2006 to July 2014. Mr. Letier has over 20 years of prior leadership roles serving as a private equity investment professional and CFO, and began his career in the audit group at Ernst & Whinney (now Ernst & Young). Letier has served on numerous boards in the past, and currently serves on the Board of Directors for various private companies, including Stellar Global, LLC; Colvin Resources Group; Grow 52, LLC (dba, Gardenuity); and serves on the fund advisory board of Griffis Residential, a Denver based multi-family real estate management and investment firm.
The agreement will become effective upon execution by the court of stipulations discontinuing the Deason litigations as to the Xerox defendants. The agreement will automatically terminate if the court does not act before 8:00 p.m. ET on May 3, 2018. Pursuant to the terms of the agreement, upon effectiveness:
• Xerox will appoint six new members to its Board of Directors: Keith Cozza, Nicholas Graziano, Scott Letier, Jay Firestone, Randolph Read and John Visentin.
• Jeff Jacobson will resign as CEO of Xerox and as a member of its Board of Directors.
• Robert J. Keegan, Charles Prince, Ann N. Reese, William Curt Hunter, Sara Martinez Tucker and Stephen H. Rusckowski will also each resign from the Board of Directors of Xerox.
Subsequent to joining the Xerox Board of Directors, Keith Cozza, the CEO of Icahn Enterprises L.P., is expected to be elected chairman of the Board of Directors of Xerox and John Visentin is expected to be appointed as the new vice chairman and CEO of Xerox. Gregory Brown, Joseph Echevarria and Cheryl Krongard will continue to serve as members of Xerox’s Board of Directors.
As part of the agreement, Xerox and Carl Icahn will withdraw their respective nominations of any other director candidates for election at the 2018 Annual Meeting of Shareholders. Xerox will continue to waive the advance notice bylaw for the 2018 Annual Meeting of Shareholders until May 30, 2018. The 2018 Annual Meeting of Shareholders will be postponed to a later date.
The company has been informed that subsequent to the agreement becoming effective, the new Board of Directors plans to meet immediately to, among other things, begin a process to evaluate all strategic alternatives to maximize shareholder value, including terminating or restructuring Xerox’s relationship with Fujifilm and the proposed transaction with Fujifilm.
The current Board of Directors of Xerox issued the following statement about the agreement:
“After careful consideration of shareholders’ feedback on the proposed combination with Fuji Xerox, Xerox approached Fujifilm regarding a potential increase in consideration to be received by Xerox shareholders. As yet, Fujifilm has not made a proposal to enhance the transaction terms.
Following the court’s decision last week to enjoin Xerox’s proposed combination with Fuji Xerox, the Board considered the significant risk and uncertainty of a prolonged litigation, during which the company would be prohibited from negotiating with Fujifilm, as well as the potential instability and business disruption during a proxy contest. As a result, the Xerox Board of Directors determined that an immediate resolution of the pending litigation and proxy contest is in the best interest of our company and all stakeholders.
This agreement will help ensure that Xerox and its employees will be able to continue to focus on serving customers and building on the company’s financial and operational performance.”
Carl Icahn issued the following statement about the agreement:
“We believe Friday’s decision and this agreement mark a watershed moment for corporate governance generally and for Xerox specifically. With new leadership in place, we believe Xerox will be much better positioned to take advantage of multiple potential value-enhancing opportunities, including restructuring its relationship with Fujifilm, our supposed ‘partner’ whose conduct over the last year is more unbelievable than what you see on fictional TV shows like House of Cards or Billions. Thanks to our efforts and the courage and conviction of Darwin Deason, this is once again an exciting time to be a Xerox stakeholder.”
Darwin Deason issued the following statement about the agreement:
“The future for Xerox is extremely bright. With John Visentin at the helm, receiving support and guidance from Carl Icahn and me, I am confident the alternatives for Xerox and its shareholders will be fully and expeditiously maximized. John is the right leader at the right time for Xerox.”
The agreement between Xerox, Mr. Icahn and Mr. Deason will be filed with the US Securities and Exchange Commission.
Director Biographies:
• Keith Cozza has been the president and CEO of Icahn Enterprises L.P., a diversified holding company engaged in a variety of businesses, including investment, automotive, energy, gaming, railcar, food packaging, metals, mining, real estate and home fashion, since February 2014. In addition, Cozza has served as COO of Icahn Capital LP, the subsidiary of Icahn Enterprises through which Carl C. Icahn manages investment funds, since February 2013. From February 2013 to February 2014, Cozza served as EVP of Icahn Enterprises. Cozza is also the CFO of Icahn Associates Holding LLC, a position he has held since 2006.
Cozza has been a director of Tropicana Entertainment Inc. since February 2014 and Icahn Enterprises L.P. since September 2012. In addition, he serves as a director of certain wholly-owned subsidiaries of Icahn Enterprises L.P., including Federal-Mogul Holdings LLC (formerly known as Federal-Mogul Holdings Corporation); Icahn Automotive Group LLC; and PSC Metals Inc.
• Giovanni (“John”) Visentin is expected to be the vice chairman and CEO of Xerox Corporation. Prior to being appointed to that role, Visentin was a senior advisor to the chairman of Exela Technologies and an operating partner for Advent International. He was also a consultant to Icahn Capital in connection with a proxy contest at Xerox Corporation from March 2018 to April 2018.
In October 2013, Visentin was named executive chairman and CEO of Novitex Enterprise Solutions following the acquisition of Pitney Bowes Management Services by funds affiliated with Apollo Global Management. In July 2017, Novitex closed on a business combination with SourceHOV, LLC and Quinpario Acquisition Corp. 2 to form Exela Technologies, becoming one of the largest global providers of transaction processing and enterprise information management solutions. Exela Technologies now trades on the NASDAQ under the ticker symbol XELA. Visentin was previously an advisor with Apollo Global Management and contributed to their February 2015 acquisition of Presidio, the leading provider of professional and managed services for advanced IT solutions, where he was chairman of the Board of Directors from February 2015 to November 2017. Visentin has managed multibillion dollar business units in the IT services industry (at each of Hewlett-Packard and IBM).
Jaffrey (“Jay”) A. Firestone has served as chairman and CEO at Prodigy Pictures Inc. since 2006. Previously, Firestone established Fireworks Entertainment in 1996. In 1998, Fireworks Entertainment was acquired by CanWest Global Communications Corporation and Firestone was named chairman and CEO. Firestone has served as a director of Voltari Corporation, a mobile data services provider indirectly controlled by Carl C. Icahn, since July 2011
Nicholas Graziano has served as portfolio manager of Icahn Capital, the entity through which Carl C. Icahn manages investment funds, since February 2018. Graziano was previously the founding partner and chief investment officer of the hedge fund Venetus Partners LP from June 2015 to August 2017. Prior to founding Venetus, Graziano was a partner and senior managing director at the hedge fund Corvex Management LP from December 2010 to March 2015. Graziano has served on the Board of Directors of Herbalife Ltd. since April 2018. Carl C. Icahn has non-controlling interests in Herbalife through the ownership of securities.
Randolph C. Read has been president and CEO of Nevada Strategic Credit Investments, LLC, an investment fund, since 2009. Read has served as an independent director of New York REIT, Inc., a publicly traded real estate investment trust, since December 2014, including as non-executive chairman of its board of directors since June 2015. Read has served as an independent director of Business Development Corporation of America, a business development company, since December 2014.
A. Scott Letier has been managing director of Deason Capital Services, LLC, (DCS) the family office for Darwin Deason, since July 2014. Prior to joining DCS, Letier was the managing director of JFO Group, LLC, the family office for the Jensen family, from September 2006 to July 2014. Mr. Letier has over 20 years of prior leadership roles serving as a private equity investment professional and CFO, and began his career in the audit group at Ernst & Whinney (now Ernst & Young). Letier has served on numerous boards in the past, and currently serves on the Board of Directors for various private companies, including Stellar Global, LLC; Colvin Resources Group; Grow 52, LLC (dba, Gardenuity); and serves on the fund advisory board of Griffis Residential, a Denver based multi-family real estate management and investment firm.
