In the span of four weeks, Xerox Corp. has found itself the defendant in two separate lawsuits filed by one of its largest shareholders.
Darwin Deason, Xerox’s third-largest shareholder, has filed suit against Xerox, Xerox CEO Jeff Jacobson and Xerox’s board of directors to, among other things, allow Deason and other shareholders to nominate a full slate of directors for consideration and election at Xerox’s 2018 Annual Meeting. The complaint was filed on March 2 in the Supreme Court of the State of New York, New York County.
The complaint notes that for the upcoming 2018 annual meeting of stockholders, the time to provide advance notice expired on Dec. 11, 2017. Deason’s suit also notes that more than six weeks later, Xerox and its board made a series of “very significant decisions and disclosures that were highly material to Plaintiff’s (and likely other Xerox shareholders’) decisions concerning potential nomination of directors.”
Those decisions include the following, Deason contends:
• approving a dramatically one-sided sale of 50.1 percent of Xerox to Fujifilm Holdings Corp. for virtually no control premium and entrenching themselves with board and executive positions with the new entity post-closing;
• disclosing for the first time the existence of a deal-restrictive “crown-jewel” lock-up right in favor of Fuji under joint venture agreements with Fuji and that such lock-up curtailed Xerox’s ability to pursue strategic alternatives with any entity other than Fuji; and
• disclosing for the first time that, in connection with Xerox’s change of control transaction with Fuji, defendant agreed to make Fuji’s crown jewel lock-up rights permanent going forward.
The complaint alleges that the decisions made by the board “dramatically change the circumstances of the company’s prospects, and were unknown to Xerox’s stockholders, including plaintiff, prior to the Dec. 11, 2017 advance notice bylaw deadline. These new facts also highlight that Xerox is at a crossroad and the Xerox board faces imminent and critical decisions concerning the future of the company.”
Deason contends that stockholders should be given an opportunity to “determine, in view of these changed circumstances, whether to elect a board that will reevaluate if the proposed change of control transaction with Fuji is in the best interest of Xerox’s stockholders and whether Xerox should take any action with respect to the deal-prohibitive crown jewel lock-up, including termination of such lock-up right—a legal right Xerox has at this time, but the current Xerox Board has inexplicably refused to pursue—so that the company can engage in a fair and transparent bidding process.”
On Feb. 26, Deason sent a letter to Xerox officials requesting that the Dec. 11 director nomination deadline be waived, a request that was denied, he contends. In the lawsuit, Deason said that without injunctive relief, he and all other Xerox shareholders will be “irreparably harmed.”
“Indeed, Plaintiff and all Xerox shareholders will be deprived of their most fundamental corporate right—the right to exercise their franchise and have a voice in the future direction of the company,” the suit reads.
Deason and Xerox’s largest shareholder, Carl Icahn, have called for Jacobson’s termination from his position since rumors of the Xerox/Fuji deal began to surface in January. Icahn and Deason have been quite vocal with their discontent.
Icahn has been buying and selling shares since early last month. Icahn sold more than 1.2 million shares in early February, according to Securities and Exchange Commission documents. A week later, he purchased 15.3 million shares.
In the earlier lawsuit filed Feb. 13, Deason was seeking to enjoin the transaction, terminate the Xerox/Fuji joint venture lock-up and joint venture agreements and pursue strategic alternatives for Xerox.
“After having considered all strategic alternatives available to the company, Xerox’s board of directors remains steadfast in its belief that the combination with Fuji Xerox is the best path to create value for the company and its shareholders. It is unfortunate that Mr. Deason is seeking to interfere with Xerox shareholders’ right to decide and is relying on meritless legal claims,” Xerox officials said in a statement at the time. “Xerox has fully disclosed the joint venture agreements, and the company will respond to Mr. Deason’s legal claims through the appropriate legal channels in due course.”
When Fuji and Xerox announced the $6.1 billion deal Jan. 31, it was noted that the merger would give Fujifilm 50.1 percent ownership of the combined company, to be known as Fuji Xerox. Xerox shareholders will receive a $2.5 billion special cash dividend, or roughly $9.80 per share, funded from the combined company’s balance sheet, and will own 49.9 percent of the company.
Fujifilm, following the merger announcement, said it would slash 10,000 jobs globally at the Fuji Xerox subsidiary, which last year employed more than 45,000 people.
Shares of Xerox stock (Nasdaq: XRX) were down slightly at $30.08 in midday trading Friday. The document company’s 52-week range is $26.64 to $37.42.
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