Deason Files Lawsuit to Block Fujifilm Takeover of Xerox; Xerox Responds to Criticism

Darwin Deason, one of Xerox’s largest shareholders, has sued Xerox and Fuji in New York state court for alleged fraud, and is seeking to stop the proposed merger of Xerox and Fuji Xerox under which Fujifilm would get a 50.1 percent controlling interest in the new combined Xerox-Fuji Xerox. Fuji Xerox of Japan is a joint venture between Fujifilm of Japan and Xerox. Xerox also responded to criticism of the proposed deal (see below) with a public letter.

Deason is said to be seeking to stop the companies from completing the deal and to nullify their joint venture. Fuji, Xerox, current Xerox board members and Ursula M. Burns, Xerox’s former chairman and chief executive officer are named as defendants in the lawsuit.

Deason’s complaint alleges that the Fuji-Xerox joint venture contains a “crown jewel lock-up right that allows Fuji to control Xerox’s intellectual property and manufacturing rights in the $36 billion Asia-Pacific market in the event Xerox were to sell to another suitor.” The suit also claims that this “lock-up was concealed from shareholders for 17 years until the recent transaction with Fuji was consummated.”

Yesterday, Deason and billionaire activist investor Carl Icahn published a joint public letter stating that the “scheme” dramatically undervalues Xerox and disproportionately favors Fujifilm. The transaction, they state, “has a tortured, convoluted structure, but it was best summarized by Shigetaka Komori, Fuji’s Chairman and CEO, when he boasted to the Nikkei Asian Review that the ‘scheme will allow us to take control of Xerox without spending a penny.’”

Fujifilm wouldn’t be paying cash for its controlling 50.1 percent interest in the new combined company – instead it would make the purchase by using the unrealized profit on its 75- percent interest in Fuji Xerox.

According to Icahn and Deason, they are “the first and third largest shareholders of Xerox, beneficially owning collectively over 40 million shares of the company’s common stock, constituting over 15 percent of the outstanding shares.”

Deason lawsuit, which was filed on February 12, 2018, states:

“The self-interested director defendants, however, ignored the opportunity or deliberately chose not to terminate the joint venture agreements. Had the director defendants terminated the joint venture agreements, they would have been able to engage in a fair and equitable bidding process and achieve a fair value and control premium for Xerox shareholders. Indeed, the value of Xerox as a standalone company with no encumbrances on its intellectual property and the licensing, manufacturing and selling of its products in the Asia and Pacific Rim markets is significantly greater than the value being provided to the company and its shareholders as part of the proposed transaction.”

Deason’s lawsuit also states: “The transaction must be stopped dead in its tracks…. The value of Xerox as a standalone company … is significantly greater than the value being provided to the company and its shareholders as part of the proposed transaction.”

Deason also alleges the following:

• “The Xerox/Fuji transaction is the result of an improper and fraudulently concealed “crown jewel” lock-up agreement that Xerox entered into with Fuji 17 years ago, that was never disclosed to Xerox’s shareholders before the signing of the Xerox/Fuji transaction;
• The ‘crown jewel’ lock-up agreement precludes a transparent and fair process for the potential sale of Xerox;
• Despite its duty to do so, Xerox’s board fraudulently never disclosed the  ‘crown jewel’ lock-up;
• Fuji and Fuji Xerox participated in a ‘WorldCom’-like accounting scandal that was uncovered in 2017 and gave Xerox the right to terminate the crown jewel lock-up provision, but the Xerox Board failed to terminate the provision;
• Xerox publicly admitted that the lock up “limit[ed] Xerox’s strategic flexibility”, which caused the Xerox board to sell 50.1% of Xerox to Fuji;
• Xerox/Fuji deal is extremely off-market:
  –No control premium for Xerox shareholders
  –50.1%/49.9% Fuji control
  –Xerox CEO and board members retain jobs
  –No Xerox market check or sale process
  –Xerox share price has declined 2.4% since the unaffected date (1/10) to Friday’s close (date prior to issuance of Icahn/Deason letter).

Deason seeks to enjoin the transaction, terminate the Xerox/Fuji joint venture lock-up and joint venture agreements, and pursue strategic alternatives for Xerox. Law firm King & Spalding LLP is representing Deason.

Xerox Response to Icahn and Deason’s Letter

For its part, Xerox today issued the following letter to its shareholders in response to Icahn and Deason’s February 12, 2018 letter:

“The Board of Directors (the “Board”) of Xerox Corporation (“Xerox” or the “Company”) has reviewed the February 12, 2018 letter signed by Carl Icahn and Darwin Deason (the “Letter”). To date, the Board has chosen not to engage in a public debate with our two large shareholders. However, we believe their misleading and inaccurate Letter warrants a written response to ensure the facts are clear for all Xerox shareholders.

The proposed combination of Xerox and Fuji Xerox (the “Transaction”), announced on January 31, 2018, followed a year-long comprehensive and exhaustive review of value-enhancing alternatives available to the Company. That review found that the Transaction, as currently proposed, delivers significantly more value to Xerox shareholders than would be achievable on a standalone basis.

Mr. Icahn and Mr. Deason propose that Xerox shareholders reject this value-creating Transaction in favor of putting Xerox’s future and the investment of its shareholders at risk. Their attacks on Xerox have been premised on removing:

• A Xerox management team that is successfully improving performance at Xerox, including significant outperformance relative to its own aggressive goals for the Company’s Strategic Transformation;
• Members of a Xerox Board that are taking significant actions to secure the future of the Company; and
• a Fuji Xerox joint venture agreement with no viable alternatives to account for the value-destruction that would result.

We will take each of the Letter’s mischaracterizations in turn:

CLAIM #1: The Transaction undervalues Xerox and favors Fujifilm.

FALSE. Mr. Icahn and Mr. Deason suggest through suspect math that investors are “selling control of Xerox for a cash flow multiple barely exceeding 2.3x.” This analysis is just plain wrong. As discussed in prior presentations to investors, Xerox shareholders receive in the Transaction (i) a $2.5 billion dividend at closing; (ii) 49.9 percent of the combined Xerox and Fuji Xerox; and (iii) 49.9 percent of the benefit of the value created from at least $1.7 billion of annual cost savings, including $1.25 billion in cost synergies that are only achievable via this Transaction. These calculations are highlighted on page 4 in the supporting materials accompanying this letter.

A foundational driver of this Transaction is that combining Xerox with Fuji Xerox will create a company that has a significantly-enhanced competitive position and will, for the first time, be able to fully realize the benefits of industry-leading scale and global reach. Our shareholders will have the opportunity for significant participation in this value creation, which Mr. Icahn and Mr. Deason conveniently ignore.

As shown on page 5 of the supporting slides, additional value is being transferred to Xerox shareholders by virtue of the pro forma ownership achieved in the Transaction. On the basis of implied relative value of Xerox and Fuji Xerox, Xerox shareholders would own 42 percent-46 percent of the combined company, compared to the 49.9 percent they receive in the Transaction. Based on a $9.4 billion equity valuation of Fuji Xerox (implied by the midpoint of 7x – 8x Fuji Xerox 2018E EBITDA), Xerox shareholders are receiving more than a 15 percent premium to Xerox’s unaffected share price, before any value attributed to synergy realization.

Finally, the assertion that the “one-time special dividend [is] financed with our own assets” is misleading. Although it is not contributing cash, Fujifilm, as owner of 50.1 percent of the combined company, will bear the debt incurred to finance the dividend as the combined company will be fully consolidated by Fujifilm without receiving any portion of that dividend.

CLAIM #2: Xerox should terminate the Fuji Xerox joint venture agreements.

FALSE. Mr. Icahn’s and Mr. Deason’s suggestion of “freeing the company from the shackles of the Fuji Xerox joint venture” is not a viable strategy. The joint venture between Xerox and Fujifilm has existed in various forms since 1962. The current structure dates to 2001, when Fujifilm acquired additional shares in the joint venture to bring its ownership to 75 percent. The agreement is a binding legal document that cannot be simply wished away, renegotiated or dissolved because Mr. Icahn and Mr. Deason desire it so.

Through the joint venture, Xerox annually buys approximately $1.6 billion of equipment, parts and consumables, including more than two-thirds of Xerox’s equipment needs. It is important to note that Fuji Xerox is the only potential supplier that is not a direct competitor of Xerox and would therefore be aligned in its interests to provide competitive pricing for those materials.

Walking away from the joint venture would require Xerox to completely rebuild its supply chain and manufacturing infrastructure, which would be extremely expensive, result in significant disruptions to our business and customer relationships, and take years to implement. Ultimately, this would be highly destructive to Xerox’s competitive positioning and shareholder value.

Mr. Icahn knows this because his representative, Jonathan Christodoro, served on the Xerox Board between June 2016 and December 2017. During that time, he and Mr. Icahn had full access to all documents governing the joint venture, as did Mr. Deason at the time he sold his company, ACS, to Xerox. These documents have since been publicly disclosed. For any of them to assert that these agreements were “shrouded in mystery” is disingenuous, at best.

CLAIM #3: Xerox shareholders will become passive minority owners, with no opportunity to receive a control premium.

FALSE. Xerox’s Board negotiated strong minority protections to ensure that the rights and value of current shareholders remain protected after the Transaction closes. These were detailed in our February 9 presentation to shareholders and include, among other things, that the combined company Board will initially consist of 12 directors, including seven designated by Fujifilm and five independent directors designated by the current Xerox Board. The five independent Xerox designated directors will serve for five years or select their replacements. Thereafter, they may be replaced by independent directors selected by Fujifilm and reasonably acceptable to the then-serving independent directors.

Jeff Jacobson will represent one of the seven Fujifilm Board designees and serve as CEO of the combined company.

In addition, the Transaction includes extensive contractual provisions that protect the existing Xerox shareholders. Among other protections, these provisions limit the ability of Fujifilm to engage in interested party transactions and to obtain disparate consideration in connection with a future sale.

Perhaps more importantly, inherent in Mr. Icahn’s and Mr. Deason’s statement is the assumption that Xerox is foregoing a more attractive control premium than an unidentified third party may someday be prepared to pay.

While Fujifilm controls the existing Fuji Xerox joint venture, Xerox has a number of governance rights that it would lose if Xerox were to be acquired by or combined with one of a number of “named competitors.” Indeed, the joint venture would be terminable by Fujifilm in such an event, even though Fuji Xerox’s exclusive distribution rights in Fuji Xerox territories would remain through 2021.

We believe the existence of the Fuji Xerox joint venture negatively impacts value in any other merger transaction. More likely, it would simply make such a transaction unattractive to any other strategic buyer. It is also not something that needs speculation: since the public speculation of a potential transaction with Fujifilm on January 10, 2018, no potential strategic buyer contacted Xerox, or its advisors, with any credible proposal or alternatives.

CLAIM #4: Projected synergies can be realized without consummating this Transaction.

FALSE. As we made clear numerous times in our disclosures, of the $1.7 billion in total annual cost reductions by 2020, $1.25 billion is related to what we can achieve only by integrating the two companies, while the remaining $450 million comes from a Fuji Xerox-specific cost reduction program. All of these amounts are incremental to Xerox’s ongoing Strategic Transformation. We are targeting to achieve approximately $1.2 billion of the $1.7 billion total annual cost savings by 2020, and the vast majority of cost savings are expected to flow through to the bottom line.

Both Xerox and Fujifilm have a proven track record of executing significant transformations in the past, and are fully committed to realizing the full synergy upside from the combined company. The current Xerox management team has outperformed its cost transformation targets this past year and will not settle for anything less going forward.

The compelling Transaction synergies extend far beyond typical corporate overhead cost reductions cited in most similar transactions, and are grounded in the highly complementary nature of the two businesses based on detailed, bottoms-up analysis. These include capturing manufacturing efficiencies, optimizing consumables production and integrating R&D capabilities to capitalize on best of breed technologies. Moreover, the combination creates a global industry leader with significant revenue growth opportunities that were far less certain and actionable for Xerox shareholders on a standalone basis, including $1.0 billion in revenue synergy opportunities already identified.

CLAIM #5: Xerox’s revenue and margins have continued to decline in the last three years.

FALSE. Xerox recently announced that margins increased from 12.5 percent in fiscal year 2016 to 12.8 percent in fiscal year 2017. Moreover, the margins we have recently delivered are the highest the Company has seen in years. Only one other company in our industry has been able to consistently demonstrate double-digit margins.

As Mr. Icahn is well aware, we have been successfully executing on the comprehensive strategy initially announced in December 2016 – which we note was developed and approved during Mr. Christodoro’s board tenure. We have since overachieved on our Strategic Transformation targets, delivering $1.3 billion of total savings through 2017 and have made significant progress strategically reorienting the revenue trajectory towards growth. Revenue attributable to strategic growth areas increased by 5 percent in the fourth quarter of 2017 through successful new product launches and channel expansion, particularly in the SMB market.

Our full-year 2017 results clearly demonstrate that the strategy we have implemented is working as we met or exceeded every financial metric we guided to in 2017 – Adjusted EPS was above Xerox’s guidance range; Strategic Transformation was $80 million higher than expected; Adjusted Operating Cash Flow was above the midpoint of Xerox’s guidance range; and revenue was within Xerox’s guidance range.

In conclusion, Mr. Icahn and Mr. Deason fail to provide an actionable plan or any cogent ideas to make their scheme a reality. Following their playbook would be both highly irresponsible and unlikely to succeed, particularly given the terms and constraints of the existing Fuji Xerox joint venture agreement, and the realities of today’s competitive environment.

The combination of Xerox and Fuji Xerox will create a stronger, more competitive company with enhanced growth prospects. The opportunity for Xerox shareholders to benefit from ownership of the combined company, as well as the substantial dividend to be paid upon closing, represents the creation of significant value for Xerox shareholders. The Board remains committed to maximizing value for all shareholders and securing the future of Xerox.”

More Resources

• February 2018: Icahn, Deason Slam Proposed Fujifilm Takeover of Xerox
• February 2018: Combined Xerox and Fuji Xerox Will Create One of World’s Largest Copier Companies, Says Fujifilm CEO
• January 2018: Xerox and Fujifilm Announce Agreement for Xerox to Merge with Fuji Xerox
• January 2018: Xerox Reports Strong Fourth-Quarter 2017 Results, 65 Dealers Signed
• January 2018: Icahn, Deason Call for Xerox CEO, Directors Replacement, Renegotiation of Fuji Xerox Partnership
• January 2018: Deason, Shareholders, Demand Xerox Disclose Potential ‘Value-Destroying’ Fujifilm Deal
• January 2018: Under Pressure from Icahn and Seeking New Growth, Xerox May be Negotiating Deal with Fujifilm
• December 2017: Billionaire Investor Icahn Blasts Xerox Board, Says Xerox ‘Desperately Needs New Leadership’
• December 2017: Carl Icahn to Nominate Four Directors to Xerox Board
• June 2016: Carl Icahn Adds Christodoro to Xerox Board of Directors
• October 2016: Billionaire Investor Deason Files Lawsuit to Block Xerox Split into Two Companies
• October 2016: Xerox Rolls Out New Conduent Brand Logo as it Prepares for Split into Two Companies
• October 2016: Xerox’s BPO Group to Trade as Conduent on NY Stock Exchange Following Split
• November 2015: Billionaire Investor Icahn is Second-Largest Xerox Shareholder; Considering ‘Strategic Alternatives’ for Xerox