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Xerox Terminates Transaction Agreement with Fujifilm, Enters Into New Agreement With Icahn & Deason

Tuesday, May 15, 2018  
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Xerox has announced that, at 5 p.m. Eastern on May 13, 2018, it notified Fujifilm that the previously announced transaction agreement to combine Xerox with Fuji Xerox is being terminated in accordance with its terms due to, among other things, the failure by Fujifilm to deliver the audited financials of Fuji Xerox by April 15, 2018, and the material deviations reflected in the audited financials of Fuji Xerox, when delivered, from the unaudited financial statements of Fuji Xerox and its subsidiaries provided to Xerox prior to the date of the Subscription Agreement and taking into account other circumstances limiting the ability of the company, Fujifilm and Fuji Xerox to consummate a transaction.

Thereafter, Xerox entered into a new settlement agreement with Carl Icahn and Darwin Deason. The settlement agreement resolves the pending proxy contest in connection with the company's 2018 Annual Meeting of Shareholders and Deason’s litigation against Xerox and its directors. It does not affect any claims of Deason or other Xerox shareholders against Fujifilm for aiding and abetting.

Under the terms of the settlement agreement, the following occurred:

Xerox appointed five new members to its board of directors: Jonathan Christodoro, Keith Cozza, Nicholas Graziano, Scott Letier and John Visentin.

Gregory Brown, Joseph Echevarria, Cheryl Krongard and Sara Martinez Tucker will continue to serve as members of the Xerox Board of Directors.

Robert J. Keegan, Charles Prince, Ann N. Reese, William Curt Hunter and Stephen H. Rusckowski each resigned from the board of directors of Xerox.

Jeff Jacobson resigned from his role as CEO and as a member of the board of directors of Xerox.

Subsequent to joining the Xerox Board of Directors, Keith Cozza, CEO of Icahn Enterprises L.P., is expected to be appointed as the new chairman of the Board of Directors of Xerox and John Visentin is expected to be appointed as the vice chairman and new CEO of Xerox.

As part of the agreement, Xerox and 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 to enable any Xerox shareholder to provide notice of intent to nominate directors for election at the 2018 Annual Meeting of Shareholders until June 13, 2018. The 2018 Annual Meeting of Shareholders will be postponed to a later date.

The new board of directors plans to meet immediately and, among other things, begin a process to evaluate all strategic alternatives to maximize shareholder value.

The former board of directors of Xerox provided the following statement:

"Over the past several weeks, the Xerox board has repeatedly requested that Fujifilm immediately enter into negotiations on improved terms for a proposed transaction. Despite our insistence, Fujifilm provided no assurance that it will do so within an acceptable time frame. The Xerox board believes that the transaction cannot reasonably be expected to be completed under these circumstances, particularly given the court's injunction of the transaction and the lack of shareholder support for the transaction on current terms, as well as the unresolved accounting issues at Fuji Xerox.

"The board also considered the potential instability and business disruption during a proxy contest. Absent a viable, timely transaction with Fujifilm, the Xerox board believes it is in the best interests of the company and all of its shareholders to terminate the proposed transaction and enter a new settlement agreement with Icahn and Deason. Under the agreement, the Xerox board will be reconstituted to determine the best path forward to maximize value for Xerox shareholders."

Carl Icahn provided the following statement:

"We are extremely pleased that Xerox finally terminated the ill-advised scheme to cede control of the company to Fujifilm. With that behind us and new shareholder-focused leadership in place, today marks a new beginning for Xerox. We have often said that the most important person at a company (by far) is the CEO. We are therefore also pleased that John Visentin, a tried and true veteran in this area, will be taking the helm."

Darwin Deason provided the following statement:

"With the limiting Fujifilm agreement terminated, Xerox is now positioned to conduct a true, robust strategic alternatives process. John Visentin has spent weeks preparing himself to run the company and speaking to numerous market participants regarding strategic alternatives. Xerox is fortunate to have someone with his experience and preparation to lead it through this exciting and transformative time."

In other news, Xerox was named to Corporate Responsibility Magazine's 19th annual 100 Best Corporate Citizens list for the 10th consecutive year. The list recognizes the standout environmental, social and governance performance of public companies across the United States.

"Being named as one of the Corporate Responsibility Magazine's Top 100 corporate citizens represents the initiatives of 35,000 Xerox employees around the world who build on our corporate legacy of sustainability with their innovative thinking and ingenuity," said Wendi Latko, vice president of environment, health, safety & sustainability, Xerox.

The rankings are based on 260 data points taken from publicly available information in seven categories: environment, climate change, employee relations, human rights, governance, finance and philanthropy. The list ranks the Russell 1000 Index, which is a list of the 1,000 largest companies in the U.S. equity market.

"The 100 Best ranking demonstrates that a company is dedicating resources towards its corporate responsibility and sustainability efforts," said Jen Boynton, editor, Corporate Responsibility Magazine. "Public disclosure allows its stakeholders to gain greater insights into a company's business practices."

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