Preview
FILED: NEW YORK COUNTY CLERK 08/31/2022 11:53 PM INDEX NO. 653549/2019
NYSCEF DOC. NO. 343 RECEIVED NYSCEF: 08/31/2022
Exhibit 30
FILED: NEW YORK COUNTY CLERK 08/31/2022 11:53 PM INDEX NO. 653549/2019
NYSCEF DOC. NO. 343 RECEIVED NYSCEF: 08/31/2022
Redacted
TRAVELERS0001868
FILED: NEW YORK COUNTY CLERK 08/31/2022 11:53 PM INDEX NO. 653549/2019
NYSCEF DOC. NO. 343 RECEIVED NYSCEF: 08/31/2022
08/22/2019 05:57:01 PM
Running Notes For Claim 204-DOX-T1802798-RG
Type Claim Status Update Who
Value Subject
Author Koenig,Rosalie Update Date 2019/08/01
Note
Xerox has filed a bad faith suit against Travelers
Deason I: Xerox defendants settled with Deason for approximately $28 million. Dkt. 1159 filed O1-08-19 Stipulation and Order to
Stay Proceedings. Action was stayed until 30 days after the exhaustion of Class Plaintiffs appeals. In Feb. 2019, Deason filed a notice
with the court saying that the only issue for Deason is the bond for the injunction. Xerox defendants settled with Icahn and Deason for
about $28.5 million. The most recent activity is that on 05-07-19 the Court ordered the bond entered by plaintiff to be dissolved.
Deason II: discontinued by order dated 05-14-18
Class Action: October 2018: Appellate Division issued an order (1) dissolving the injunction and dismissing the aiding and abetting
claims against Fuji. November 2018, the Class Plaintiffs filed a motion with the Appellate Division for re-argument or leave to appeal to
the Court of Appeals. The Class Plaintiffs motion for class cert. is denied without prejudice to renewal after appeals are exhausted. In
February 2019, the Appellate Division denied Class Plaintiffs motion for re-argument or leave to appeal to the Court of Appeals.
Motions for final approval and for approval of notice to the class have been filed in May 2019.
Xerox has sued Travelers for bad faith.
Derivative Action Ribbe 1: 12-06-18 Ribbe Derivative action dismissed without prejudice for purported failure to make a demand. 01-
14-19 Demand upon Board to Investigate Claims, Initiate Legal Action and Take Necessary and Appropriate Remedial Measures to
Xerox Board of Directors from Levi & Korsinsky, LLP on behalf of Carmen Ribbe.
Ribbe filed a second complaint on 04-11-19 in NYS court: A Derivative and Class Action Stockholder Complaint. Ribbe alleges that
the Current Board has de facto rejected his 01-14-19 demand as follows: The Current Board has chosen to strengthen Icahns and
Deasons stranglehold over the Board. In the 2019 Proxy filed on 03-15-19, the Current Board disclosed that it had renominated each of
the New Directors to stand for election at the 2019 Annual Meeting but also that because they are [c]onfident in the future direction and
strategy of the Company, directors Greg Brown and Sara Martinez Tucker have decided not to stand for relection to the Board. In other
words, two of the remaining directors not handpicked by Icahn and Deason are resigning, such that Icahn and Deason will have directly
chosen six of the seven Board members\'85.
Breach of Contract Action: Fuji v. Xerox: In the Fuji v Xerox breach of contract action, on 02-22-19, the federal court denied
Xerox's motion to dismiss. In April 2019 - Fujifilm issued a subpoena to former Xerox CEO, Jeff Jacobson, requesting documents re,
inter alia,the termination of the Xerox Fuji Transaction and his resignation as CEO of Xerox. May 2019 Discovery is on going
Defense Cost information:
Defense costs total $19.6 million from February 2018 through December 2018.
We have requested documents from Xerox about the approximately $28.5M settlement with Deason and Icahn.
Status as of 10-26-18, updated 12-04-18:
(l)Deason I (NY state court - filed 2/13/2018 - OPEN BUT CLOSE TO BEING CLOSED): (650675/2018) This breach of fiduciary
duty case involved an attempt to stop the Fuji transaction as being unfair to shareholders. The court preliminary enjoined the Fuji
transaction in an order dated April 27, 2018. Although the defendant directors and Fuji filed motions to dismiss the lawsuit, the court
denied their motions in orders dated April 30, 2018. Plaintiffs settled with Xerox and the defendant directors on May 1, 2018 whereby
new directors were installed, old directors resigned, the transaction was terminated and Xerox agreed to pay Icahn and Deason up to $25
million in fees and expenses. The case was discontinued against the directors and officers as of June 22, 2018. Xerox paid the $25
million fee and allegedly incurred $11 .1 million in defense costs.Plaintiffs continued their case against Fuji for aiding and abetting the
directors breach of fiduciary duty. On October 16, 2018, the appellate division reversed the trial courts denial of Fujis motion to dismiss.
In that order, the appeals court ruled that the directors did not breach their fiduciary duty by entering into the Xerox/Fuji transaction,
and were protected by the business judgment rule. The court also found that plaintiffs did not plead their cause of action against Fuji
with the required particularity. We note that Fuji filed crossclaims against the D&Os to the extent that if Fuji is found liable, Fuji would
be entitled to contribution from them. Unless the appellate court decision is further appealed (which we doubt), this matter is over.
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Running Notes For Claim 204-DOX-T1802798-RG
Justice Ostrager has scheduled a conference for November 27, 2018.
In Deason I, on November 26, 2018, Mr. Deason sought to extinguish the $150 million injunction bond he had issued pending the
outcome of the appellate courts decision
(2)Deason II (NY state court - filed 3/2/2018 -- CLOSED); This case involved an attempt to stop an advance-notice by-law deadline
for the nomination of directors. This matter was resolved as part of the settlement of Deason I, AND AN ORDER DATED May 14,
2018 was entered discontinuing the case.
(3)1ron Workers (NY state court - filed 2/16/2018 -- OPEN): This shareholder class action asserted the same or similar claims
asserted in Deason I. Fuji filed crossclaims against the D&Os as it did in Deason I.
04-17-18 Trial court ordered that motions for injunctive relief are granted to the extent of enjoining Defendants from taking any
further action to consummate the change of control transaction between Xerox and Fuji that was announced on O1-31 -18; ordered that
injunctive relief is granted to the extent of enjoining Defendants from enforcing Xerox's advance notice by law provision;
"The injunctions are conditioned on the posting of an undertaking as set forth herein."
The Shareholder case was settled on May 2, 2018 in conjunction with the Deason I settlement whereby plaintiffs counsel will seek up
to $7.5 million in attorneys fees; but plaintiffs reserve the right to seek additional compensation and fees.
Plaintiffs filed an amended
complaint on May 4, 2018. Fuji sought to set aside the injunction and filed a crossclaim against the directors defendants for contribution
on June 14, 2018 . In orders dated June 19 and 21, 2018, the court denied Fujis motion to dissolve the injunction, and Fuji filed a notice
of appeal on July 2, 2018. On July 10, 2018, derivative plaintiffRibbe opposed the settlement. Settlement discovery is continuing as
plaintiffs attempt to get the settlement approved. A hearing was held on July 21, 2018 in which the court directed class plaintiffs to file a
motion for class certification and a proposed class notice.Those motions were filed on September 21 and 28, 2018, and a hearing is
scheduled for November 28, 2018 . Both Ribbe and Fuji opposed the settlement in briefs filed on October 17, 2018.
On October 16, 2018, the appellate division reversed all of the trial courts orders, and on October 19, the trial court issued a
notice asking the parties to advise the court whether the appellate court decision impacted their motions. As to the crossclaims asserted
by Fuji against the D&Os, the answer date was extended to January 2019. Nearly all of the briefing has been between Fuji, Ribbe and
the class plaintiffs, and very little on the part of the D&O defendants.If the appellate decision stands, then Fujis crossclaims would be
moot.
Class Plaintiffs are appealing the Appellate Division's ruling to the New York Court of Appeals
11 -19-18 Class plaintiffs filed their brief arguing that the reversal [of the Injunction] has no impact on the settlement
agreement, and asking for the court to allow class notice so that the settlement can be ultimately approved. We do not expect the D&O
defendants to oppose the settlement since they are parties to it, but Fuji and the derivative plaintiff likely will oppose it.
Oral argument on all motions and conferences scheduled for 12-06-18
(4)Carmen Ribbe (NY state court - filed 5/24/2018 -- OPEN): Plaintiffbrings a derivative action against Fuji and the former
directors for allowing Jacobson to enter into the Fuji transaction.Xerox filed a motion to dismiss and/or to stay the action on August 13,
2018, and Fuji filed a motion to dismiss as well. The director defendants did not file a motion to dismiss. Responsive briefs were filed,
and Justice Ostrager scheduled oral argument for November 27, 2018.
Ribbe filed a motion on November 19, 2018 arguing that the appellate court decision has no impact on his case as to post-
injunction actions (e.g., replacing the board with a non-voted-on board). Fuji filed a motion arguing that demand still had to be made on
the current board - which it was not, and that the claims for aiding and abetting should be dismissed because of the appellate court
decision.
(5)Fuji v. Xerox NY federal court - filed 6/18/2018 -- OPEN): Index Number 18-cv-05458 USDC - SDNY Fuji seeks recovery of the
$183 million termination fee from Xerox, and alleges breach of contract. Xerox filed its motion to dismiss on October 1, 2018 arguing
that Fuji improperly forum-shopped and fail ed to state a claim for breach of contract. 11-09-18 Fuji filed opposition to motion to
dismiss. 11-26-18 Xerox filed its reply.
10-01-18 Xerox's motion to dismiss
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Running Notes For Claim 204-DOX-T1802798-RG
Preliminary Statement
After the injunction, Xerox entered into settlements (with Deason I and the Class Plaintiffs). Xerox also tried to engage
Fuji in negotiations for a revised transaction but the negotiations were not successful.on 05-13-18 Xerox exercised its right to terminate
the Fuji transaction on the grounds, that, inter alia, Fuji had failed to timely deliver audited financial statements for Fuji Xerox and that
certain financial information reflected in the belated audited financial statements materially deviated from Fuji Xerox's prior unaudited
financial statements. Fuji is already litigating its cross claims, etc. in NYS State Court which is why Fuji sought to bring this action in
federal court. Justice Ostrager already concluded that Fuji has acted improperly in negotiating the transaction.
blatant forum shopping
Also the claims against Xerox fail as a matter of law.
(1) the transaction agreements require timely delivery by Fuji of audited financials .. ... .
(2) Fuji's claim that Xerox breached the transaction agreements by failing to provide notice or get consent prior to
entering the settlement of the shareholder agreement fails because, even if such notice and consent were required, the complaint does not
allege any non-speculative damages resulting from the purported breach.
(3) Claim for declaratory judgment based on Xerox board's supposed failure to recommend that Xerox shareholders
vote in favor of the Fuji Transaction fails because it assumes that Xerox board could have recommended the transaction even after Justice
Ostrager enjoined all further action to consummate the Fuji Transaction.
History
Defense Expenses
06-22-18 from Marsh
Please find the attached invoices from Paul Weiss with respect to the Deason Shareholder Litigation. The total amount of
invoices is $1 1.1 million. Further invoices will be forthcoming .
Nov. 2018 Conf. call. defense expenses are around $17 million
Status of payment by carriers: (from Nov. 2018 Conf. call)
Only primary carrier Chubb has cut a check
First excess carrier, XL has tendered its limits subject to review of a release which is under review by the legal
department.
Maria Diaz said that she plans to submit to Travelers, the following: $IM of defense costs (that XL did not pay
because its limit was exhausted); and then $12M of additional invoices.
Defense arrangements
06-07-18 broker forwards 06-07-18 letter to Marsh from McDermott Will and Emery, defense counsel for Jeff Jacobson, Xerox's
former CEO in the newly filed derivative suit. Hourly rates range from $1175 to $900.
Deason I (Supreme Court of the State of New York Index no. 650675/20 18)
l 0-16-18 Order of the Appellate Division First Department in Deason I and the Consolidated Shareholder Action (Asbestos
Workers)
Orders of the Supreme Court New York County, entered on 04-30-18 and on 05-01 -18, which denied the motions of
Defendant Fujifilm Holdings Corp ("Fuji") to dismiss the respective complaints against it, and granted plaintiffa' motions for preliminary
injunctions, unanimously reversed,,,,the complaints dismissed against Fuji and the injunctions dissolved.
"Plaintiff failed to show bad faith or a disabling interest on the part of the majority of the directors of Xerox such that
plaintiffs' actions stood a likelihood of success on the merits."
Five members of the current Board would serve on the board of the new company but "the possibility that anyone of the
directors would be named to the board alone was not a material benefit such that it was a disabling interest."
"To the extent former CEO of Xerox, Jacobson, was conflicted ..... the conflict was acknowledged;"
"The board which engaged outside advisors ...... did not engage in a mere post hoc review, nor was the transaction
unreasonable on its face."
"In light of the foregoing, the business judgment rule does apply.... "
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Running Notes For Claim 204-DOX-T1802798-RG
(l)Deason I (NY state court - filed 2/13/2018 - OPEN BUT CLOSE TO BEING CLOSED) : This breach of fiduciary duty case
involved an attempt to stop the Fuji transaction as being unfair to shareholders. The court preliminary enjoined the Fuji transaction in
an order dated April 27, 2018. Although the defendant directors and Fuji filed motions to dismiss the lawsuit, the court denied their
motions in orders dated April 30, 2018. Plaintiffs settled with Xerox and the defendant directors on May 1, 2018 whereby new directors
were installed, old directors resigned, the transaction was terminated and Xerox agreed to pay Icahn and Deason up to $25 million in
fees and expenses. The case was discontinued against the directors and officers as of June 22, 2018. Xerox paid the $25 million fee and
allegedly incurred $11 .1 million in defense costs.Plaintiffs continued their case against Fuji for aiding and abetting the directors breach
of fiduciary duty. On October 16, 2018, the appellate division reversed the trial courts denial of Fujis motion to dismiss.In that order,
the appeals court ruled that the directors did not breach their fiduciary duty by entering into the Xerox/Fuji transaction, and were
protected by the business judgment rule. The court also found that plaintiffs did not plead their cause of action against Fuji with the
required particularity. We note that Fuji filed crossclaims against the D&Os to the extent that if Fuji is found liable, Fuji would be
entitled to contribution from them. Unless the appellate court decision is further appealed (which we doubt), this matter is over. Justice
Ostrager has scheduled a conference for November 27, 2018.
(2)Deason II (NY state court - filed 3/2/2018 -- CLOSED); This case involved an attempt to stop an advance-notice by-law deadline
for the nomination of directors. This matter was resolved as part of the settlement of Deason I, AND AN ORDER DATED May 14,
2018 was entered discontinuing the case.
(3)Iron Workers (NY state court - filed 2/16/20 18 -- OPEN) : This shareholder class action asserted the same or similar claims
asserted in Deason I. Fuji filed crossclaims against the D&Os as it did in Deason I. The Shareholder case was settled on May 2, 2018 in
conjunction with the Deason I settlement whereby plaintiffs counsel will seek up to $7.5 million in attorneys fees; but plaintiffs reserve
the right to seek additional compensation and fees. Plaintiffs filed an amended complaint on May 4, 2018. Fuji sought to set aside the
injunction and filed a crossclaim against the directors defendants for contribution on June 14, 2018. In orders dated June 19 and 21,
2018, the court denied Fujis motion to dissolve the injunction, and Fuji filed a notice of appeal on July 2, 2018.On July 10, 2018,
derivative plaintiffRibbe opposed the settlement. Settlement discovery is continuing as plaintiffs attempt to get the settlement approved.
A hearing was held on July 21, 2018 in which the court directed class plaintiffs to file a motion for class certification and a proposed
class notice. Those motions were filed on September 21 and 28, 20 18, and a hearing is scheduled for November 28, 2018. Both Ribbe
and Fuji opposed the settlement in briefs filed on October 17, 2018. On October 16, 2018, the appellate division reversed all of the trial
courts orders, and on October 19, the trial court issued a notice asking the parties to advise the court whether the appellate court decision
impacted their motions. As to the crossclaims asserted by Fuji against the D&Os, the answer date was extended to January 2019. Nearly
all of the briefing has been between Fuji, Ribbe and the class plaintiffs, and very little on the part of the D&O defendants.
If the
appellate decision stands, then Fujis crossclaims would be moot.
(4)Carmen Ribbe (NY state court - filed 5/24/2018 -- OPEN): Plaintiffbrings a derivative action against Fuji and the former
directors for allowing Jacobson to enter into the Fuji transaction.Xerox filed a motion to dismiss and/or to stay the action on August 13,
2018, and Fuji filed a motion to dismiss as well. The director defendants did not file a motion to dismiss. Responsive briefs were filed,
and Justice Ostrager scheduled oral argument for November 27, 2018.
(5)Fuji v. Xerox NY federal court - filed 6/18/20 18 -- OPEN): Fuji seeks recovery of the $183 million termination fee from Xerox,
and alleges breach of contract. Xerox filed its motion to dismiss on October l, 2018 arguing that Fuji improperly forum-shopped and
failed to state a claim for breach of contract.
Fujis opposition is due on November 9, 2018, and Xeroxs reply brief is due on November
26, 2018.
Thursday 11 -08-18 conf. call
There was a conf. call re Xerox this morning with Xerox rep (Maria Diaz and Mary Ellen _ _ ); Willis (Anthony Dragone);
Paul Weiss (Jay Cohen); Wilkie (didnt catch his name); and the carriers:
Defense costs are $1 7M to date.
Discussion of the impact of the reversal of the injunction
No definitive answer at this time.
Status of the class action:11 -27 there is hearing before Judge Ostrager re Motion for class certification and settlement
approval. Judge Ostrager is skeptical that the class has achieved anything. (reminder that the settlement agreement is $7.5M)
Re the Ribbe derivative action. Fujis position is that the reversal of the injunction eviscerates this claim.
Fuji is telling
Ribbe plaintiffs that they should withdraw the case.
In response to question, defense counsel says that the reversal of the injunction has no impact on the settlement of Deason I.
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Running Notes For Claim 204-DOX-T1802798-RG
Someone asked if the amount of the Deason I settlement is $25 million and the Xerox rep. said that it is closer to $29 million.
Status of payment by carriers:
Only primary carrier Chubb has cut a check
First excess carrier, XL has tendered its limits subject to review of a release which is under review by the legal
department.
Maria Diaz said that she plans to submit to Travelers, the following: $1M of defense costs (that XL did not pay
because its limit was exhausted); and then $12M of additional invoices.
01-08-19 checked the following dockets:
(1) Fujifilm Holdings Corp v. Xerox Corp., pending in USDC - SDNY, Index number 18-cv-05458
most recent item is the 12-07- 18 letter to Judge Koetl, informing the court that New York State Justice Ostrager ordered the
dismissal of the derivative complaint in Ribbe v. Jacobson. "As Your Honor is aware, Xerox Corp.'s pending motion to dismiss in this
action had relied upon the pendency of litigation in New York state court as the basis for its motion to dismiss on forum non conveniens
grounds. As of yesterday, Fujifilm is no longer a party to any case before Justice Ostrager.''
(2) Deason I (NY state court - filed 2/13/2018-: (650675/20 18)
Dkt. 1139 filed 11-26- 18 Order to Show Cause Proposed filed by Plaintiff Darwin Deason to Request that Undertaking on
Preliminary Injunction be released.
Dkt. 1147 filed 11-27-18 Order to Show Cause - hearing date of motion is 12-06-18
Dkt. 1153 filed 12-06-18 Order - Deason's complaint against Fujifilm is dismissed and Fujifilm shall recover $19,764.53 in
disbursements.
Dkt. 1159 filed O1-08-19 Stipulation and Order to Stay Proceedings
11-15-18 Class Plaintiffs filed with the Appellate Division notice of motion for re-argument or leave to appeal to the Court
of Appeals (The Appellate Division's 10-16-18 decision dissolving the injunction)
Action is stayed until 30 days after the exhaustion of class Plaintiffs appeals.
(3) Carmen Ribbe Index no. 652613/2018
Various defendants filed motions to dismiss. (Jacobson, the Hunter Group and the Brown Group) and Defendant Fujifilm
Dkt. 109 11-29-18 Memorandum by Nominal Defendant Xerox Corp regarding Impact of Appellate Division Decision -
"plaintiffs failure to adequately allege that demand was futile as to a majority of the Xerox Board, alone, continues to require dismissal
of the complaint.''
Dkt. 111 11 -30-1 8 Memorandum (ofJeffrey Jacobson) Regarding Impact of the Appellate Division Decision - joins in Dkt.
109 (McDermott Will & Emery)
Dkt. 112 11 -30-1 8Memorandum [of defendants Hunter, Keegan, Prince, Reese, Ruskowski] regarding impact of appellate
Division Decision - joins in Dkt.109 (Weil Gotshall & Manges)
Dkt. 113 11 -30-1 8Memorandum [of defendants Brmvn, Echevarria, Krongard and Tucker) regarding impact of Appellate
Division Decision - joins in Dkt. 109 (Fried Frank)
12-06-1 8 Orders granting various motions without prejudice in accordance with the record of December 6, 2018.
01 -14- 19Ribbe sent a demand letter demanding that Xerox commence an action against the Board
02-12- 19 inquiry to broker what action if any Xerox has taken with
(4) In re Xerox Corp. Consolidated Shareholder Litigation 650766/2018
Dkt. 801 12-06- 18 Order re motion for class certification and related relief is denied without prejudice to renewal following
the outcome of appeals related to the underlying action and related actions before this court and a decision of the motion for approval of
class notice.
Dkt. 809 Order staying case until resolution of appeal of Class Plaintiffs.
04-08- 19 Doc. No. 846 Order - Motion for attorney's fees is permitted to be withdrawn at the request of the movant (see
NYSCEF Doc. no. 844). Status conference May 7, 20 19 at 11: 10.
05 -24-19 checked status of the below. email re same
Deason I settled - the most recent activity is that on 05-07- 19
the Court ordered the bond entered by plaintiff to be dissolved.
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Running Notes For Claim 204-DOX-T1802798-RG
Deason II Closed discontinued by order dated 05-14-18
Class action: settlement is pending court approval. Motions for final approval and for approval of notice to the class have been filed
in May 2019.
Derivative Action (Ribbe): dismissed with prejudice for failure to make a demand in December 2018. In January 2019, Ribbe sent a
demand letter. Xerox Board formed a demand committee to investigage and hired De~y Pegno & Kramarsky as counsel.
Fuji v. Xerox: Breach of contract - discovery is ongoing.
05-24-19 Further re second complaint filed by Ribbe.
Deb has reminded me that Ribbe had filed a second complaint on 04-11-19 in NYS court: A Derivative and Class Action Stockholder
Complaint. Ribbe alleges that the Current Board has de facto rejected his 01-14- 19 demand as follows : The Current Board has chosen
to strengthen Icahns and Deasons stranglehold over the Board. In the 2019 Proxy filed on 03-15-19, the Current Board disclosed that it
had renominated each of the new of the New Directors to stand for election at the 2019 Annual Meeting but also that because they are
[c ]onfident in the future direction and strategy of the Company, directors Greg Brown and Sara Martinez Tucker have decided not to
stand for relection to the Board. In other words, two of the remaining directors not handpicked by Icahn and Deason are resigning, such
that Icahn and Deason will have directly chosen six of the seven Board members\'85.
Defense Expenses
06-22-18 from Marsh
Please find the attached invoices from Paul Weiss with respect to the Deason Shareholder Litigation. The total amount of
invoices is $1 1.1 million. Further invoices will be forthcoming .
11- 14-18 email from new broker, Willis
I will be sending you 4 emails. This is 1 of 4.
#1 Total Deason Settlement Documents
#2 Total Defense Costs Submitted to XL
#3 Defense Costs not previously submitted to any insurer
#4 Paul Weiss invoices and a spreadsheet laying everything out
Received four emails from Willis:
The first email: "Total Deason Settlement Documents"
totals $28,451,926.64
05 - 14-18Xerox wire transfer to King & Spalding: $25,000,000;
05 - 14-18Xerox wire transfer to Darwin Deason: $148,850.55;
05 -31 -18Xerox wire to Icahn Group: $3,05 1,828.09;
05 -31 -18Xerox wire to Darwin Deason: $251,248.00;
(total $28,451,926.64)
and
Exhibit C. Director Appointment, Nomination and Settlement Agreement filed in NYS State court on 05-02- 18 (Index no.
650988/2018 Deason I?) which provides:
20, Fees and Expenses: The Company agrees that it (a) shall reimburse each member of the Icahn Group and (b)
immediately after the Effective Time reimburse Deason, in each case for all of their respective out-of-pocket fees and expenses in
connection with each member of the Shareholder Group's involvement at the Company since May 1, 2017 to the date hereof (expressly
excluding any fees incurred following the date hereof), including their Schedule l3D filings, litigation brought against the Company by
any member of the Shareholder Group, any proxy contest with respect to the 2018 Annual Meeting, and the negotiations and execution
of this Agreement, solely in the case of clause (b), in an aggregate amount not to exceed that disclosed to the Company in writing prior
to the date of this Agreement.
(I note that Exhibit C filed on 05-02-18 expired without becoming effective, but that an identical agreement was filed on 05 -13-18 or
thereabouts)
The second email: #2 Total Defense Costs Submitted to XL
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Running Notes For Claim 204-DOX-T1802798-RG
a list of invoices of the following vendors, totaling $5,1 17,112.00 and attaches copies of invoices.
Analysis Group
05-14-18 $40,643.22 -Analysis /Strategy re Deason v. Fujifilm Holdings Corp., et al.
05-19-18 $442,280.55 - Same
Compass Lexecon
04-27-18 $505,521.63 Re Deason v. Fujifilm Holdings, Inc. , et al.(Dan Fischel and others) Review of news articles and
analysts reports, etc.
05-24-18 $998,921.06 Same. Review of documents and articles. Prepared Report
Fried Frank - represented Defendant Krongard
03-31-18 $58,337.50 - general background work.
04-30-18 $74,677.56 Krongard was deposed?
05-09-18 $248,663 .07 deposition preparation
06-08-18 $113,652.56 Review of draft settlement agreement.
Kirkland & Ellis
07-24-18 $150,000 Re Deason v. Fujifilm
review of settlement agreement, etc. Motion to stay pending appeal?
McDermott Will & Emery LP - represented Jeffrey Jacobson
05-10-18 $165,699.63 D&O Litigation
06-29-18 $10,340.64 (re derivative complaint)
Simpson Thacher & Bartlett - Xerox Corp. Board of Directors
05-11-18 $975,000 Amount Due. One page No details.
Sullivan & Cromwell LLP - Centerview Partners LLC.
05-11- 18 $150,325.93 re the proposed combination of Xerox Corp with Fuji Xerox Co. Ltd. One page.
05-11 -18 $ 700,787.37 re the litigations pending in NYS State Supreme Court - review of pleadings, negotiations
with plaintiffs re Centerview's response to the subpoena; attend and defend the deposition of David Hess. prepare for preliminary
injunction hearing.
TransPerfect Document Management
03 -31-18 $198,573.98
03 -31-18 $86,859.75
04-01-18 $42,567. 18
04-30-18 $11,984.60
04-30-18 $1, 113.16
05 -31-18 $5,335.41
Weil Gotshall & Manges, LLP Outside Directors of Xerox Corp.
06-05-18 $135,827.00 - one page
The Third Email: "Defense Costs Not Previously Submitted to any Insurer"
The Third email has a list of invoices of the following vendors, totaling $1,120,116 and attaches copies of invoices
Fried Frank
08-23 -18 $6,286.66 re Deason v. Fujifilm Holdings, Corp, et al.
08-23 -18 $136,159.25 to Continuing Xerox Directors re Derivative Litigation
McDermott Will
07-27-18 $55,548.93 re Ribbe v. Jeff Jacobson
08-29-18 $50, 161.99 re Ribbe v. Jacobson
08-29-18 $5,213.25 re Ribbe v. Jacobson
Page 11 of 112
TRAVELERS0001878
FILED: NEW YORK COUNTY CLERK 08/31/2022 11:53 PM INDEX NO. 653549/2019
NYSCEF DOC. NO. 343 RECEIVED NYSCEF: 08/31/2022
08/22/2019 05:57:01 PM
Running Notes For Claim 204-DOX-T1802798-RG
TransPerfect
06-30-18 $6,648.75
07-31-18 $5,153.25
Wilkie Farr
07-31-18 $97,889.93 re Ribbe v. Jeff Jacobson, et al.
07-31-18 $28,950.51 re Fujifilm Holdings Corp. v. Xerox
09-14-18 $139,127.25 re Ribbe v Jeff Jacobson, et al.
09-14-18 $109,289.22 re Fujifilm Holdings Corp. v. Xerox
Samimi Scheinberg P.C.
08-01-18 $58,175.00 re Deason v. Fuji
08-01-18 $17,290.00 re Deason v. Fuji
09-01-18 $82,306.12 re Deason v. Fuji
09-01-18 $21, 945 re Deason v. Fuji
10-01-18 $73,634.67 re Deason v. Fuji
10-01-18 $940.00 re Deason v. Fuji
King & Spalding
08-13-18 $166,044.70 re Fuji v. Xerox
09-14-18 $56,252.41 re Fuji v. Xerox
D4LLC
03-31-18 $3,099.11 re Deason V. Fuji
The fourth email: #4 Paul Weiss invoices and a spreadsheet laying everything out"
Four Paul Weiss invoices.
invoice dated 03-23-18 in the amount of$883,411.10 "Xerox Board Long Range Planning (Project Juice)"
Invoice dated 04-18- 18 in the amount of$3,544,735.49 "Xerox Fuji Transaction Litigation"
Invoice dated 05-09- 18 in the amount of $4,974,431.29 "Xerox Fuji Transaction Litigation"
Invoice dated 06-08- 18 in the amount of$1,726,359.91 "Deason v. Fujifilm Holdings Corp., et al."
The first is "Travelers Submission"
Travelers Reimbursement Request of $13,295,890
Deason Settlement28,45 l ,926
Defense Costs Submitted to XLS, 117, 112
Total33,569,038
Deductible(2,500,000)
Chubb Payment(15,000,000)
XL Tender(l5,000,000)
Net not Reimbursedl,069,038
Travelers Submission (l)l,069,038
Travelers Submission (2)12,226,852
Page 12 of 112
TRAVELERS0001879
FILED: NEW YORK COUNTY CLERK 08/31/2022 11:53 PM INDEX NO. 653549/2019
NYSCEF DOC. NO. 343 RECEIVED NYSCEF: 08/31/2022
08/22/2019 05:57:01 PM
Running Notes For Claim 204-DOX-T1802798-RG
Total Travelers Submissionl3,295,890
( 1) Represents amount in excess of Travelers limit
(2) Represents defense cost invoices not submitted to Chubb or XL
The remainder of the spreadsheet, is a list of invoices from following firms, purporting to total$12,226,852:.
Fried Frank
McDermott Will
TransPerfect Document Management
Wilkie Farr
Samini Scheinberg
King & Spalding
D4LLC
Paul Weiss
There is a second spreadsheet is XL Defense Cost Submission totaling $5, 117,112, and lists invoices from the following firms:
Analysis Group
Compass Lexecon
Fried Frank
Kirkland & Ellis
McDermott Will & Emery LP
Simpson Thacher & Bartlett
TransPerfect Document Management
Weil Gotshall & Manges, LLP
11 -28-18 from Willis encloses a Paul Weis invoice dated 11-27-18 in the amount of$418,513 and a McDermott Will & Emery Invoice
in the amount of$38,80l. Total $457,314 (Willis states $457,315)
11/28/2018
Travelers Reimbursement Request of $418,513
Deason Settlement28,45 l ,926
Defense Costs Submitted to XLS, 117, 112
Total33,569,038
Deductible(2,500,000)
Chubb Payment##########
XL Tender##########
Net not Reimbursed l ,069,038
Travelers Submission (1)1,069,038
Travelers Submission (2)12,226,852
Total Travelers Submission ll/14/1813,295,890
(1) Represents amount in excess of Travelers limit
(2) Represents defense cost invoices not submitted to Chubb or XL
Travelers Submission 457,315
Page 13 of 112
TRAVELERS0001880
FILED: NEW YORK COUNTY CLERK 08/31/2022 11:53 PM INDEX NO. 653549/2019
NYSCEF DOC. NO. 343 RECEIVED NYSCEF: 08/31/2022
08/22/2019 05:57:01 PM
Running Notes For Claim 204-DOX-T1802798-RG
Total Travelers Submission 11/28/18457,3 15
Total Travelers Submission a/o ll/28/1813,753,205
02-19-19 email from broker encloses additional invoices
Redacted
TRAVELERS0001881
FILED: NEW YORK COUNTY CLERK 08/31/2022 11:53 PM INDEX NO. 653549/2019
NYSCEF DOC. NO. 343 RECEIVED NYSCEF: 08/31/2022
08/22/2019 05:57:01 PM
Running Notes For Claim 204-DOX-T1802798-RG
Type Litigation Note to File Who
Value Xerox Corp. v. Travelers Casualty and Surety Subject
Company of America
Author Koenig,Rosalie Update Date 2019/06/19
*** PRIVILEGED and CON1'IDENTIAL ***
Note
Xerox has sued us. Complaint forwarded to us on 06-19-19
Type Claim Note to File Who
Value Subject
Author Koenig,Rosalie Update Date 2019/06/12
*** PRIVILEGED and CONFIDENTIAL ***
Note
06-12-19 checked docket of Fuji v. Xerox NY federal court - filed 6/18/20 18 -- OPEN): Index Number 18-cv-05458 USDC - SDNY
Discovery is ongoing.
Type Claim Synopsis Who
Value Subject M&A
Author Koenig,Rosalie Update Date 2019/06/04
Note
Deason I
Shareholder Class Action: Claims for Breach of Fiduciary Duty and Aiding and Abetting of same.
Deason II - alleges that the deadline to propose new directors to the board should have been extended.
Demands for Books and Records
Derivative Complaint (Carmen Ribbe) filed NYS State court 05-24- 18 (brought by Levi & Korsinsky LLP)
Fuji v. Xerox Breach of Contract Action. June 2018 Fuji files complaint against Xerox alleging breach of contract, etc.No individual
Defendants. Fuji also files Cross-Claims and a Third Party Complaint in one of the Deason Actions and in the Shareholder Class
Action
In April 2019 - Fujifilm issued a subpoena to former Xerox CEO, Jeff Jacobson, requesting documents re, inter alia, the
termination of the Xerox Fuji Transaction and his resignation as CEO of Xerox.
Derivative and Class Action Stockholder Complaint captioned Ribbe v. Jeffrey Jacobson, et al. filed in Supreme Court of the State of
New York on 04-11- 19 ("Ribbe Class and Derivative Action")
Exhaustion:
10-19-18 Chubb advises that it has paid its $15M limits.
09-07- 18 from Stacy Lane re XL: I finally received a call-back from Leslie Ahari who represents XL. She told us that she was
ordered to stand down and not do anything, and XL was approaching Xerox to try and cut a deal. As a result, XL has not issued a
coverage letter and probably is trying to get some shave off its limits.
Page 17 of 112
I CONFIDENTIAL I
i-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·i
TRAVELERS0001884
FILED: NEW YORK COUNTY CLERK 08/31/2022 11:53 PM INDEX NO. 653549/2019
NYSCEF DOC. NO. 343 RECEIVED NYSCEF: 08/31/2022
08/22/2019 05:57 :01 PM
Running Notes For Claim 204-DOX-T1802798-RG
Type Claim Note to File Who
Preview
FILED: NEW YORK COUNTY CLERK 08/31/2022 11:53 PM INDEX NO. 653549/2019 NYSCEF DOC. NO. 343 RECEIVED NYSCEF: 08/31/2022 Exhibit 30 FILED: NEW YORK COUNTY CLERK 08/31/2022 11:53 PM INDEX NO. 653549/2019 NYSCEF DOC. NO. 343 RECEIVED NYSCEF: 08/31/2022 Redacted TRAVELERS0001868 FILED: NEW YORK COUNTY CLERK 08/31/2022 11:53 PM INDEX NO. 653549/2019 NYSCEF DOC. NO. 343 RECEIVED NYSCEF: 08/31/2022 08/22/2019 05:57:01 PM Running Notes For Claim 204-DOX-T1802798-RG Type Claim Status Update Who Value Subject Author Koenig,Rosalie Update Date 2019/08/01 Note Xerox has filed a bad faith suit against Travelers Deason I: Xerox defendants settled with Deason for approximately $28 million. Dkt. 1159 filed O1-08-19 Stipulation and Order to Stay Proceedings. Action was stayed until 30 days after the exhaustion of Class Plaintiffs appeals. In Feb. 2019, Deason filed a notice with the court saying that the only issue for Deason is the bond for the injunction. Xerox defendants settled with Icahn and Deason for about $28.5 million. The most recent activity is that on 05-07-19 the Court ordered the bond entered by plaintiff to be dissolved. Deason II: discontinued by order dated 05-14-18 Class Action: October 2018: Appellate Division issued an order (1) dissolving the injunction and dismissing the aiding and abetting claims against Fuji. November 2018, the Class Plaintiffs filed a motion with the Appellate Division for re-argument or leave to appeal to the Court of Appeals. The Class Plaintiffs motion for class cert. is denied without prejudice to renewal after appeals are exhausted. In February 2019, the Appellate Division denied Class Plaintiffs motion for re-argument or leave to appeal to the Court of Appeals. Motions for final approval and for approval of notice to the class have been filed in May 2019. Xerox has sued Travelers for bad faith. Derivative Action Ribbe 1: 12-06-18 Ribbe Derivative action dismissed without prejudice for purported failure to make a demand. 01- 14-19 Demand upon Board to Investigate Claims, Initiate Legal Action and Take Necessary and Appropriate Remedial Measures to Xerox Board of Directors from Levi & Korsinsky, LLP on behalf of Carmen Ribbe. Ribbe filed a second complaint on 04-11-19 in NYS court: A Derivative and Class Action Stockholder Complaint. Ribbe alleges that the Current Board has de facto rejected his 01-14-19 demand as follows: The Current Board has chosen to strengthen Icahns and Deasons stranglehold over the Board. In the 2019 Proxy filed on 03-15-19, the Current Board disclosed that it had renominated each of the New Directors to stand for election at the 2019 Annual Meeting but also that because they are [c]onfident in the future direction and strategy of the Company, directors Greg Brown and Sara Martinez Tucker have decided not to stand for relection to the Board. In other words, two of the remaining directors not handpicked by Icahn and Deason are resigning, such that Icahn and Deason will have directly chosen six of the seven Board members\'85. Breach of Contract Action: Fuji v. Xerox: In the Fuji v Xerox breach of contract action, on 02-22-19, the federal court denied Xerox's motion to dismiss. In April 2019 - Fujifilm issued a subpoena to former Xerox CEO, Jeff Jacobson, requesting documents re, inter alia,the termination of the Xerox Fuji Transaction and his resignation as CEO of Xerox. May 2019 Discovery is on going Defense Cost information: Defense costs total $19.6 million from February 2018 through December 2018. We have requested documents from Xerox about the approximately $28.5M settlement with Deason and Icahn. Status as of 10-26-18, updated 12-04-18: (l)Deason I (NY state court - filed 2/13/2018 - OPEN BUT CLOSE TO BEING CLOSED): (650675/2018) This breach of fiduciary duty case involved an attempt to stop the Fuji transaction as being unfair to shareholders. The court preliminary enjoined the Fuji transaction in an order dated April 27, 2018. Although the defendant directors and Fuji filed motions to dismiss the lawsuit, the court denied their motions in orders dated April 30, 2018. Plaintiffs settled with Xerox and the defendant directors on May 1, 2018 whereby new directors were installed, old directors resigned, the transaction was terminated and Xerox agreed to pay Icahn and Deason up to $25 million in fees and expenses. The case was discontinued against the directors and officers as of June 22, 2018. Xerox paid the $25 million fee and allegedly incurred $11 .1 million in defense costs.Plaintiffs continued their case against Fuji for aiding and abetting the directors breach of fiduciary duty. On October 16, 2018, the appellate division reversed the trial courts denial of Fujis motion to dismiss. In that order, the appeals court ruled that the directors did not breach their fiduciary duty by entering into the Xerox/Fuji transaction, and were protected by the business judgment rule. The court also found that plaintiffs did not plead their cause of action against Fuji with the required particularity. We note that Fuji filed crossclaims against the D&Os to the extent that if Fuji is found liable, Fuji would be entitled to contribution from them. Unless the appellate court decision is further appealed (which we doubt), this matter is over. Page 5 of 112 TRAVELERS0001872 FILED: NEW YORK COUNTY CLERK 08/31/2022 11:53 PM INDEX NO. 653549/2019 NYSCEF DOC. NO. 343 RECEIVED NYSCEF: 08/31/2022 08/22/2019 05:57:01 PM Running Notes For Claim 204-DOX-T1802798-RG Justice Ostrager has scheduled a conference for November 27, 2018. In Deason I, on November 26, 2018, Mr. Deason sought to extinguish the $150 million injunction bond he had issued pending the outcome of the appellate courts decision (2)Deason II (NY state court - filed 3/2/2018 -- CLOSED); This case involved an attempt to stop an advance-notice by-law deadline for the nomination of directors. This matter was resolved as part of the settlement of Deason I, AND AN ORDER DATED May 14, 2018 was entered discontinuing the case. (3)1ron Workers (NY state court - filed 2/16/2018 -- OPEN): This shareholder class action asserted the same or similar claims asserted in Deason I. Fuji filed crossclaims against the D&Os as it did in Deason I. 04-17-18 Trial court ordered that motions for injunctive relief are granted to the extent of enjoining Defendants from taking any further action to consummate the change of control transaction between Xerox and Fuji that was announced on O1-31 -18; ordered that injunctive relief is granted to the extent of enjoining Defendants from enforcing Xerox's advance notice by law provision; "The injunctions are conditioned on the posting of an undertaking as set forth herein." The Shareholder case was settled on May 2, 2018 in conjunction with the Deason I settlement whereby plaintiffs counsel will seek up to $7.5 million in attorneys fees; but plaintiffs reserve the right to seek additional compensation and fees. Plaintiffs filed an amended complaint on May 4, 2018. Fuji sought to set aside the injunction and filed a crossclaim against the directors defendants for contribution on June 14, 2018 . In orders dated June 19 and 21, 2018, the court denied Fujis motion to dissolve the injunction, and Fuji filed a notice of appeal on July 2, 2018. On July 10, 2018, derivative plaintiffRibbe opposed the settlement. Settlement discovery is continuing as plaintiffs attempt to get the settlement approved. A hearing was held on July 21, 2018 in which the court directed class plaintiffs to file a motion for class certification and a proposed class notice.Those motions were filed on September 21 and 28, 2018, and a hearing is scheduled for November 28, 2018 . Both Ribbe and Fuji opposed the settlement in briefs filed on October 17, 2018. On October 16, 2018, the appellate division reversed all of the trial courts orders, and on October 19, the trial court issued a notice asking the parties to advise the court whether the appellate court decision impacted their motions. As to the crossclaims asserted by Fuji against the D&Os, the answer date was extended to January 2019. Nearly all of the briefing has been between Fuji, Ribbe and the class plaintiffs, and very little on the part of the D&O defendants.If the appellate decision stands, then Fujis crossclaims would be moot. Class Plaintiffs are appealing the Appellate Division's ruling to the New York Court of Appeals 11 -19-18 Class plaintiffs filed their brief arguing that the reversal [of the Injunction] has no impact on the settlement agreement, and asking for the court to allow class notice so that the settlement can be ultimately approved. We do not expect the D&O defendants to oppose the settlement since they are parties to it, but Fuji and the derivative plaintiff likely will oppose it. Oral argument on all motions and conferences scheduled for 12-06-18 (4)Carmen Ribbe (NY state court - filed 5/24/2018 -- OPEN): Plaintiffbrings a derivative action against Fuji and the former directors for allowing Jacobson to enter into the Fuji transaction.Xerox filed a motion to dismiss and/or to stay the action on August 13, 2018, and Fuji filed a motion to dismiss as well. The director defendants did not file a motion to dismiss. Responsive briefs were filed, and Justice Ostrager scheduled oral argument for November 27, 2018. Ribbe filed a motion on November 19, 2018 arguing that the appellate court decision has no impact on his case as to post- injunction actions (e.g., replacing the board with a non-voted-on board). Fuji filed a motion arguing that demand still had to be made on the current board - which it was not, and that the claims for aiding and abetting should be dismissed because of the appellate court decision. (5)Fuji v. Xerox NY federal court - filed 6/18/2018 -- OPEN): Index Number 18-cv-05458 USDC - SDNY Fuji seeks recovery of the $183 million termination fee from Xerox, and alleges breach of contract. Xerox filed its motion to dismiss on October 1, 2018 arguing that Fuji improperly forum-shopped and fail ed to state a claim for breach of contract. 11-09-18 Fuji filed opposition to motion to dismiss. 11-26-18 Xerox filed its reply. 10-01-18 Xerox's motion to dismiss Page 6 of 112 TRAVELERS0001873 FILED: NEW YORK COUNTY CLERK 08/31/2022 11:53 PM INDEX NO. 653549/2019 NYSCEF DOC. NO. 343 RECEIVED NYSCEF: 08/31/2022 08/22/2019 05:57:01 PM Running Notes For Claim 204-DOX-T1802798-RG Preliminary Statement After the injunction, Xerox entered into settlements (with Deason I and the Class Plaintiffs). Xerox also tried to engage Fuji in negotiations for a revised transaction but the negotiations were not successful.on 05-13-18 Xerox exercised its right to terminate the Fuji transaction on the grounds, that, inter alia, Fuji had failed to timely deliver audited financial statements for Fuji Xerox and that certain financial information reflected in the belated audited financial statements materially deviated from Fuji Xerox's prior unaudited financial statements. Fuji is already litigating its cross claims, etc. in NYS State Court which is why Fuji sought to bring this action in federal court. Justice Ostrager already concluded that Fuji has acted improperly in negotiating the transaction. blatant forum shopping Also the claims against Xerox fail as a matter of law. (1) the transaction agreements require timely delivery by Fuji of audited financials .. ... . (2) Fuji's claim that Xerox breached the transaction agreements by failing to provide notice or get consent prior to entering the settlement of the shareholder agreement fails because, even if such notice and consent were required, the complaint does not allege any non-speculative damages resulting from the purported breach. (3) Claim for declaratory judgment based on Xerox board's supposed failure to recommend that Xerox shareholders vote in favor of the Fuji Transaction fails because it assumes that Xerox board could have recommended the transaction even after Justice Ostrager enjoined all further action to consummate the Fuji Transaction. History Defense Expenses 06-22-18 from Marsh Please find the attached invoices from Paul Weiss with respect to the Deason Shareholder Litigation. The total amount of invoices is $1 1.1 million. Further invoices will be forthcoming . Nov. 2018 Conf. call. defense expenses are around $17 million Status of payment by carriers: (from Nov. 2018 Conf. call) Only primary carrier Chubb has cut a check First excess carrier, XL has tendered its limits subject to review of a release which is under review by the legal department. Maria Diaz said that she plans to submit to Travelers, the following: $IM of defense costs (that XL did not pay because its limit was exhausted); and then $12M of additional invoices. Defense arrangements 06-07-18 broker forwards 06-07-18 letter to Marsh from McDermott Will and Emery, defense counsel for Jeff Jacobson, Xerox's former CEO in the newly filed derivative suit. Hourly rates range from $1175 to $900. Deason I (Supreme Court of the State of New York Index no. 650675/20 18) l 0-16-18 Order of the Appellate Division First Department in Deason I and the Consolidated Shareholder Action (Asbestos Workers) Orders of the Supreme Court New York County, entered on 04-30-18 and on 05-01 -18, which denied the motions of Defendant Fujifilm Holdings Corp ("Fuji") to dismiss the respective complaints against it, and granted plaintiffa' motions for preliminary injunctions, unanimously reversed,,,,the complaints dismissed against Fuji and the injunctions dissolved. "Plaintiff failed to show bad faith or a disabling interest on the part of the majority of the directors of Xerox such that plaintiffs' actions stood a likelihood of success on the merits." Five members of the current Board would serve on the board of the new company but "the possibility that anyone of the directors would be named to the board alone was not a material benefit such that it was a disabling interest." "To the extent former CEO of Xerox, Jacobson, was conflicted ..... the conflict was acknowledged;" "The board which engaged outside advisors ...... did not engage in a mere post hoc review, nor was the transaction unreasonable on its face." "In light of the foregoing, the business judgment rule does apply.... " Page 7 of 112 TRAVELERS000187 4 FILED: NEW YORK COUNTY CLERK 08/31/2022 11:53 PM INDEX NO. 653549/2019 NYSCEF DOC. NO. 343 RECEIVED NYSCEF: 08/31/2022 08/22/2019 05:57:01 PM Running Notes For Claim 204-DOX-T1802798-RG (l)Deason I (NY state court - filed 2/13/2018 - OPEN BUT CLOSE TO BEING CLOSED) : This breach of fiduciary duty case involved an attempt to stop the Fuji transaction as being unfair to shareholders. The court preliminary enjoined the Fuji transaction in an order dated April 27, 2018. Although the defendant directors and Fuji filed motions to dismiss the lawsuit, the court denied their motions in orders dated April 30, 2018. Plaintiffs settled with Xerox and the defendant directors on May 1, 2018 whereby new directors were installed, old directors resigned, the transaction was terminated and Xerox agreed to pay Icahn and Deason up to $25 million in fees and expenses. The case was discontinued against the directors and officers as of June 22, 2018. Xerox paid the $25 million fee and allegedly incurred $11 .1 million in defense costs.Plaintiffs continued their case against Fuji for aiding and abetting the directors breach of fiduciary duty. On October 16, 2018, the appellate division reversed the trial courts denial of Fujis motion to dismiss.In that order, the appeals court ruled that the directors did not breach their fiduciary duty by entering into the Xerox/Fuji transaction, and were protected by the business judgment rule. The court also found that plaintiffs did not plead their cause of action against Fuji with the required particularity. We note that Fuji filed crossclaims against the D&Os to the extent that if Fuji is found liable, Fuji would be entitled to contribution from them. Unless the appellate court decision is further appealed (which we doubt), this matter is over. Justice Ostrager has scheduled a conference for November 27, 2018. (2)Deason II (NY state court - filed 3/2/2018 -- CLOSED); This case involved an attempt to stop an advance-notice by-law deadline for the nomination of directors. This matter was resolved as part of the settlement of Deason I, AND AN ORDER DATED May 14, 2018 was entered discontinuing the case. (3)Iron Workers (NY state court - filed 2/16/20 18 -- OPEN) : This shareholder class action asserted the same or similar claims asserted in Deason I. Fuji filed crossclaims against the D&Os as it did in Deason I. The Shareholder case was settled on May 2, 2018 in conjunction with the Deason I settlement whereby plaintiffs counsel will seek up to $7.5 million in attorneys fees; but plaintiffs reserve the right to seek additional compensation and fees. Plaintiffs filed an amended complaint on May 4, 2018. Fuji sought to set aside the injunction and filed a crossclaim against the directors defendants for contribution on June 14, 2018. In orders dated June 19 and 21, 2018, the court denied Fujis motion to dissolve the injunction, and Fuji filed a notice of appeal on July 2, 2018.On July 10, 2018, derivative plaintiffRibbe opposed the settlement. Settlement discovery is continuing as plaintiffs attempt to get the settlement approved. A hearing was held on July 21, 2018 in which the court directed class plaintiffs to file a motion for class certification and a proposed class notice. Those motions were filed on September 21 and 28, 20 18, and a hearing is scheduled for November 28, 2018. Both Ribbe and Fuji opposed the settlement in briefs filed on October 17, 2018. On October 16, 2018, the appellate division reversed all of the trial courts orders, and on October 19, the trial court issued a notice asking the parties to advise the court whether the appellate court decision impacted their motions. As to the crossclaims asserted by Fuji against the D&Os, the answer date was extended to January 2019. Nearly all of the briefing has been between Fuji, Ribbe and the class plaintiffs, and very little on the part of the D&O defendants. If the appellate decision stands, then Fujis crossclaims would be moot. (4)Carmen Ribbe (NY state court - filed 5/24/2018 -- OPEN): Plaintiffbrings a derivative action against Fuji and the former directors for allowing Jacobson to enter into the Fuji transaction.Xerox filed a motion to dismiss and/or to stay the action on August 13, 2018, and Fuji filed a motion to dismiss as well. The director defendants did not file a motion to dismiss. Responsive briefs were filed, and Justice Ostrager scheduled oral argument for November 27, 2018. (5)Fuji v. Xerox NY federal court - filed 6/18/20 18 -- OPEN): Fuji seeks recovery of the $183 million termination fee from Xerox, and alleges breach of contract. Xerox filed its motion to dismiss on October l, 2018 arguing that Fuji improperly forum-shopped and failed to state a claim for breach of contract. Fujis opposition is due on November 9, 2018, and Xeroxs reply brief is due on November 26, 2018. Thursday 11 -08-18 conf. call There was a conf. call re Xerox this morning with Xerox rep (Maria Diaz and Mary Ellen _ _ ); Willis (Anthony Dragone); Paul Weiss (Jay Cohen); Wilkie (didnt catch his name); and the carriers: Defense costs are $1 7M to date. Discussion of the impact of the reversal of the injunction No definitive answer at this time. Status of the class action:11 -27 there is hearing before Judge Ostrager re Motion for class certification and settlement approval. Judge Ostrager is skeptical that the class has achieved anything. (reminder that the settlement agreement is $7.5M) Re the Ribbe derivative action. Fujis position is that the reversal of the injunction eviscerates this claim. Fuji is telling Ribbe plaintiffs that they should withdraw the case. In response to question, defense counsel says that the reversal of the injunction has no impact on the settlement of Deason I. Page 8 of 112 TRAVELERS0001875 FILED: NEW YORK COUNTY CLERK 08/31/2022 11:53 PM INDEX NO. 653549/2019 NYSCEF DOC. NO. 343 RECEIVED NYSCEF: 08/31/2022 08/22/2019 05:57:01 PM Running Notes For Claim 204-DOX-T1802798-RG Someone asked if the amount of the Deason I settlement is $25 million and the Xerox rep. said that it is closer to $29 million. Status of payment by carriers: Only primary carrier Chubb has cut a check First excess carrier, XL has tendered its limits subject to review of a release which is under review by the legal department. Maria Diaz said that she plans to submit to Travelers, the following: $1M of defense costs (that XL did not pay because its limit was exhausted); and then $12M of additional invoices. 01-08-19 checked the following dockets: (1) Fujifilm Holdings Corp v. Xerox Corp., pending in USDC - SDNY, Index number 18-cv-05458 most recent item is the 12-07- 18 letter to Judge Koetl, informing the court that New York State Justice Ostrager ordered the dismissal of the derivative complaint in Ribbe v. Jacobson. "As Your Honor is aware, Xerox Corp.'s pending motion to dismiss in this action had relied upon the pendency of litigation in New York state court as the basis for its motion to dismiss on forum non conveniens grounds. As of yesterday, Fujifilm is no longer a party to any case before Justice Ostrager.'' (2) Deason I (NY state court - filed 2/13/2018-: (650675/20 18) Dkt. 1139 filed 11-26- 18 Order to Show Cause Proposed filed by Plaintiff Darwin Deason to Request that Undertaking on Preliminary Injunction be released. Dkt. 1147 filed 11-27-18 Order to Show Cause - hearing date of motion is 12-06-18 Dkt. 1153 filed 12-06-18 Order - Deason's complaint against Fujifilm is dismissed and Fujifilm shall recover $19,764.53 in disbursements. Dkt. 1159 filed O1-08-19 Stipulation and Order to Stay Proceedings 11-15-18 Class Plaintiffs filed with the Appellate Division notice of motion for re-argument or leave to appeal to the Court of Appeals (The Appellate Division's 10-16-18 decision dissolving the injunction) Action is stayed until 30 days after the exhaustion of class Plaintiffs appeals. (3) Carmen Ribbe Index no. 652613/2018 Various defendants filed motions to dismiss. (Jacobson, the Hunter Group and the Brown Group) and Defendant Fujifilm Dkt. 109 11-29-18 Memorandum by Nominal Defendant Xerox Corp regarding Impact of Appellate Division Decision - "plaintiffs failure to adequately allege that demand was futile as to a majority of the Xerox Board, alone, continues to require dismissal of the complaint.'' Dkt. 111 11 -30-1 8 Memorandum (ofJeffrey Jacobson) Regarding Impact of the Appellate Division Decision - joins in Dkt. 109 (McDermott Will & Emery) Dkt. 112 11 -30-1 8Memorandum [of defendants Hunter, Keegan, Prince, Reese, Ruskowski] regarding impact of appellate Division Decision - joins in Dkt.109 (Weil Gotshall & Manges) Dkt. 113 11 -30-1 8Memorandum [of defendants Brmvn, Echevarria, Krongard and Tucker) regarding impact of Appellate Division Decision - joins in Dkt. 109 (Fried Frank) 12-06-1 8 Orders granting various motions without prejudice in accordance with the record of December 6, 2018. 01 -14- 19Ribbe sent a demand letter demanding that Xerox commence an action against the Board 02-12- 19 inquiry to broker what action if any Xerox has taken with (4) In re Xerox Corp. Consolidated Shareholder Litigation 650766/2018 Dkt. 801 12-06- 18 Order re motion for class certification and related relief is denied without prejudice to renewal following the outcome of appeals related to the underlying action and related actions before this court and a decision of the motion for approval of class notice. Dkt. 809 Order staying case until resolution of appeal of Class Plaintiffs. 04-08- 19 Doc. No. 846 Order - Motion for attorney's fees is permitted to be withdrawn at the request of the movant (see NYSCEF Doc. no. 844). Status conference May 7, 20 19 at 11: 10. 05 -24-19 checked status of the below. email re same Deason I settled - the most recent activity is that on 05-07- 19 the Court ordered the bond entered by plaintiff to be dissolved. Page 9 of 112 TRAVELERS0001876 FILED: NEW YORK COUNTY CLERK 08/31/2022 11:53 PM INDEX NO. 653549/2019 NYSCEF DOC. NO. 343 RECEIVED NYSCEF: 08/31/2022 08/22/2019 05:57:01 PM Running Notes For Claim 204-DOX-T1802798-RG Deason II Closed discontinued by order dated 05-14-18 Class action: settlement is pending court approval. Motions for final approval and for approval of notice to the class have been filed in May 2019. Derivative Action (Ribbe): dismissed with prejudice for failure to make a demand in December 2018. In January 2019, Ribbe sent a demand letter. Xerox Board formed a demand committee to investigage and hired De~y Pegno & Kramarsky as counsel. Fuji v. Xerox: Breach of contract - discovery is ongoing. 05-24-19 Further re second complaint filed by Ribbe. Deb has reminded me that Ribbe had filed a second complaint on 04-11-19 in NYS court: A Derivative and Class Action Stockholder Complaint. Ribbe alleges that the Current Board has de facto rejected his 01-14- 19 demand as follows : The Current Board has chosen to strengthen Icahns and Deasons stranglehold over the Board. In the 2019 Proxy filed on 03-15-19, the Current Board disclosed that it had renominated each of the new of the New Directors to stand for election at the 2019 Annual Meeting but also that because they are [c ]onfident in the future direction and strategy of the Company, directors Greg Brown and Sara Martinez Tucker have decided not to stand for relection to the Board. In other words, two of the remaining directors not handpicked by Icahn and Deason are resigning, such that Icahn and Deason will have directly chosen six of the seven Board members\'85. Defense Expenses 06-22-18 from Marsh Please find the attached invoices from Paul Weiss with respect to the Deason Shareholder Litigation. The total amount of invoices is $1 1.1 million. Further invoices will be forthcoming . 11- 14-18 email from new broker, Willis I will be sending you 4 emails. This is 1 of 4. #1 Total Deason Settlement Documents #2 Total Defense Costs Submitted to XL #3 Defense Costs not previously submitted to any insurer #4 Paul Weiss invoices and a spreadsheet laying everything out Received four emails from Willis: The first email: "Total Deason Settlement Documents" totals $28,451,926.64 05 - 14-18Xerox wire transfer to King & Spalding: $25,000,000; 05 - 14-18Xerox wire transfer to Darwin Deason: $148,850.55; 05 -31 -18Xerox wire to Icahn Group: $3,05 1,828.09; 05 -31 -18Xerox wire to Darwin Deason: $251,248.00; (total $28,451,926.64) and Exhibit C. Director Appointment, Nomination and Settlement Agreement filed in NYS State court on 05-02- 18 (Index no. 650988/2018 Deason I?) which provides: 20, Fees and Expenses: The Company agrees that it (a) shall reimburse each member of the Icahn Group and (b) immediately after the Effective Time reimburse Deason, in each case for all of their respective out-of-pocket fees and expenses in connection with each member of the Shareholder Group's involvement at the Company since May 1, 2017 to the date hereof (expressly excluding any fees incurred following the date hereof), including their Schedule l3D filings, litigation brought against the Company by any member of the Shareholder Group, any proxy contest with respect to the 2018 Annual Meeting, and the negotiations and execution of this Agreement, solely in the case of clause (b), in an aggregate amount not to exceed that disclosed to the Company in writing prior to the date of this Agreement. (I note that Exhibit C filed on 05-02-18 expired without becoming effective, but that an identical agreement was filed on 05 -13-18 or thereabouts) The second email: #2 Total Defense Costs Submitted to XL Page 10 of 112 TRAVELERS0001877 FILED: NEW YORK COUNTY CLERK 08/31/2022 11:53 PM INDEX NO. 653549/2019 NYSCEF DOC. NO. 343 RECEIVED NYSCEF: 08/31/2022 08/22/2019 05:57:01 PM Running Notes For Claim 204-DOX-T1802798-RG a list of invoices of the following vendors, totaling $5,1 17,112.00 and attaches copies of invoices. Analysis Group 05-14-18 $40,643.22 -Analysis /Strategy re Deason v. Fujifilm Holdings Corp., et al. 05-19-18 $442,280.55 - Same Compass Lexecon 04-27-18 $505,521.63 Re Deason v. Fujifilm Holdings, Inc. , et al.(Dan Fischel and others) Review of news articles and analysts reports, etc. 05-24-18 $998,921.06 Same. Review of documents and articles. Prepared Report Fried Frank - represented Defendant Krongard 03-31-18 $58,337.50 - general background work. 04-30-18 $74,677.56 Krongard was deposed? 05-09-18 $248,663 .07 deposition preparation 06-08-18 $113,652.56 Review of draft settlement agreement. Kirkland & Ellis 07-24-18 $150,000 Re Deason v. Fujifilm review of settlement agreement, etc. Motion to stay pending appeal? McDermott Will & Emery LP - represented Jeffrey Jacobson 05-10-18 $165,699.63 D&O Litigation 06-29-18 $10,340.64 (re derivative complaint) Simpson Thacher & Bartlett - Xerox Corp. Board of Directors 05-11-18 $975,000 Amount Due. One page No details. Sullivan & Cromwell LLP - Centerview Partners LLC. 05-11- 18 $150,325.93 re the proposed combination of Xerox Corp with Fuji Xerox Co. Ltd. One page. 05-11 -18 $ 700,787.37 re the litigations pending in NYS State Supreme Court - review of pleadings, negotiations with plaintiffs re Centerview's response to the subpoena; attend and defend the deposition of David Hess. prepare for preliminary injunction hearing. TransPerfect Document Management 03 -31-18 $198,573.98 03 -31-18 $86,859.75 04-01-18 $42,567. 18 04-30-18 $11,984.60 04-30-18 $1, 113.16 05 -31-18 $5,335.41 Weil Gotshall & Manges, LLP Outside Directors of Xerox Corp. 06-05-18 $135,827.00 - one page The Third Email: "Defense Costs Not Previously Submitted to any Insurer" The Third email has a list of invoices of the following vendors, totaling $1,120,116 and attaches copies of invoices Fried Frank 08-23 -18 $6,286.66 re Deason v. Fujifilm Holdings, Corp, et al. 08-23 -18 $136,159.25 to Continuing Xerox Directors re Derivative Litigation McDermott Will 07-27-18 $55,548.93 re Ribbe v. Jeff Jacobson 08-29-18 $50, 161.99 re Ribbe v. Jacobson 08-29-18 $5,213.25 re Ribbe v. Jacobson Page 11 of 112 TRAVELERS0001878 FILED: NEW YORK COUNTY CLERK 08/31/2022 11:53 PM INDEX NO. 653549/2019 NYSCEF DOC. NO. 343 RECEIVED NYSCEF: 08/31/2022 08/22/2019 05:57:01 PM Running Notes For Claim 204-DOX-T1802798-RG TransPerfect 06-30-18 $6,648.75 07-31-18 $5,153.25 Wilkie Farr 07-31-18 $97,889.93 re Ribbe v. Jeff Jacobson, et al. 07-31-18 $28,950.51 re Fujifilm Holdings Corp. v. Xerox 09-14-18 $139,127.25 re Ribbe v Jeff Jacobson, et al. 09-14-18 $109,289.22 re Fujifilm Holdings Corp. v. Xerox Samimi Scheinberg P.C. 08-01-18 $58,175.00 re Deason v. Fuji 08-01-18 $17,290.00 re Deason v. Fuji 09-01-18 $82,306.12 re Deason v. Fuji 09-01-18 $21, 945 re Deason v. Fuji 10-01-18 $73,634.67 re Deason v. Fuji 10-01-18 $940.00 re Deason v. Fuji King & Spalding 08-13-18 $166,044.70 re Fuji v. Xerox 09-14-18 $56,252.41 re Fuji v. Xerox D4LLC 03-31-18 $3,099.11 re Deason V. Fuji The fourth email: #4 Paul Weiss invoices and a spreadsheet laying everything out" Four Paul Weiss invoices. invoice dated 03-23-18 in the amount of$883,411.10 "Xerox Board Long Range Planning (Project Juice)" Invoice dated 04-18- 18 in the amount of$3,544,735.49 "Xerox Fuji Transaction Litigation" Invoice dated 05-09- 18 in the amount of $4,974,431.29 "Xerox Fuji Transaction Litigation" Invoice dated 06-08- 18 in the amount of$1,726,359.91 "Deason v. Fujifilm Holdings Corp., et al." The first is "Travelers Submission" Travelers Reimbursement Request of $13,295,890 Deason Settlement28,45 l ,926 Defense Costs Submitted to XLS, 117, 112 Total33,569,038 Deductible(2,500,000) Chubb Payment(15,000,000) XL Tender(l5,000,000) Net not Reimbursedl,069,038 Travelers Submission (l)l,069,038 Travelers Submission (2)12,226,852 Page 12 of 112 TRAVELERS0001879 FILED: NEW YORK COUNTY CLERK 08/31/2022 11:53 PM INDEX NO. 653549/2019 NYSCEF DOC. NO. 343 RECEIVED NYSCEF: 08/31/2022 08/22/2019 05:57:01 PM Running Notes For Claim 204-DOX-T1802798-RG Total Travelers Submissionl3,295,890 ( 1) Represents amount in excess of Travelers limit (2) Represents defense cost invoices not submitted to Chubb or XL The remainder of the spreadsheet, is a list of invoices from following firms, purporting to total$12,226,852:. Fried Frank McDermott Will TransPerfect Document Management Wilkie Farr Samini Scheinberg King & Spalding D4LLC Paul Weiss There is a second spreadsheet is XL Defense Cost Submission totaling $5, 117,112, and lists invoices from the following firms: Analysis Group Compass Lexecon Fried Frank Kirkland & Ellis McDermott Will & Emery LP Simpson Thacher & Bartlett TransPerfect Document Management Weil Gotshall & Manges, LLP 11 -28-18 from Willis encloses a Paul Weis invoice dated 11-27-18 in the amount of$418,513 and a McDermott Will & Emery Invoice in the amount of$38,80l. Total $457,314 (Willis states $457,315) 11/28/2018 Travelers Reimbursement Request of $418,513 Deason Settlement28,45 l ,926 Defense Costs Submitted to XLS, 117, 112 Total33,569,038 Deductible(2,500,000) Chubb Payment########## XL Tender########## Net not Reimbursed l ,069,038 Travelers Submission (1)1,069,038 Travelers Submission (2)12,226,852 Total Travelers Submission ll/14/1813,295,890 (1) Represents amount in excess of Travelers limit (2) Represents defense cost invoices not submitted to Chubb or XL Travelers Submission 457,315 Page 13 of 112 TRAVELERS0001880 FILED: NEW YORK COUNTY CLERK 08/31/2022 11:53 PM INDEX NO. 653549/2019 NYSCEF DOC. NO. 343 RECEIVED NYSCEF: 08/31/2022 08/22/2019 05:57:01 PM Running Notes For Claim 204-DOX-T1802798-RG Total Travelers Submission 11/28/18457,3 15 Total Travelers Submission a/o ll/28/1813,753,205 02-19-19 email from broker encloses additional invoices Redacted TRAVELERS0001881 FILED: NEW YORK COUNTY CLERK 08/31/2022 11:53 PM INDEX NO. 653549/2019 NYSCEF DOC. NO. 343 RECEIVED NYSCEF: 08/31/2022 08/22/2019 05:57:01 PM Running Notes For Claim 204-DOX-T1802798-RG Type Litigation Note to File Who Value Xerox Corp. v. Travelers Casualty and Surety Subject Company of America Author Koenig,Rosalie Update Date 2019/06/19 *** PRIVILEGED and CON1'IDENTIAL *** Note Xerox has sued us. Complaint forwarded to us on 06-19-19 Type Claim Note to File Who Value Subject Author Koenig,Rosalie Update Date 2019/06/12 *** PRIVILEGED and CONFIDENTIAL *** Note 06-12-19 checked docket of Fuji v. Xerox NY federal court - filed 6/18/20 18 -- OPEN): Index Number 18-cv-05458 USDC - SDNY Discovery is ongoing. Type Claim Synopsis Who Value Subject M&A Author Koenig,Rosalie Update Date 2019/06/04 Note Deason I Shareholder Class Action: Claims for Breach of Fiduciary Duty and Aiding and Abetting of same. Deason II - alleges that the deadline to propose new directors to the board should have been extended. Demands for Books and Records Derivative Complaint (Carmen Ribbe) filed NYS State court 05-24- 18 (brought by Levi & Korsinsky LLP) Fuji v. Xerox Breach of Contract Action. June 2018 Fuji files complaint against Xerox alleging breach of contract, etc.No individual Defendants. Fuji also files Cross-Claims and a Third Party Complaint in one of the Deason Actions and in the Shareholder Class Action In April 2019 - Fujifilm issued a subpoena to former Xerox CEO, Jeff Jacobson, requesting documents re, inter alia, the termination of the Xerox Fuji Transaction and his resignation as CEO of Xerox. Derivative and Class Action Stockholder Complaint captioned Ribbe v. Jeffrey Jacobson, et al. filed in Supreme Court of the State of New York on 04-11- 19 ("Ribbe Class and Derivative Action") Exhaustion: 10-19-18 Chubb advises that it has paid its $15M limits. 09-07- 18 from Stacy Lane re XL: I finally received a call-back from Leslie Ahari who represents XL. She told us that she was ordered to stand down and not do anything, and XL was approaching Xerox to try and cut a deal. As a result, XL has not issued a coverage letter and probably is trying to get some shave off its limits. Page 17 of 112 I CONFIDENTIAL I i-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·-·i TRAVELERS0001884 FILED: NEW YORK COUNTY CLERK 08/31/2022 11:53 PM INDEX NO. 653549/2019 NYSCEF DOC. NO. 343 RECEIVED NYSCEF: 08/31/2022 08/22/2019 05:57 :01 PM Running Notes For Claim 204-DOX-T1802798-RG Type Claim Note to File Who