Diamond Foods Suit

Case 1:09-cv-07504

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION DIAMOND FOODS, INC., a Delaware Corporation, Plaintiff, v. JAMES M. BARKER, Defendant.

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VERIFIED COMPLAINT FOR INJUNCTIVE AND OTHER RELIEF Plaintiff Diamond Foods, Inc. (“Diamond”), by and through its attorneys, and for its Verified Complaint for Injunctive and Other Relief against Defendant James M. Barker (“Barker”), states as follows: NATURE OF THE CASE 1.

Diamond brings this suit to recover the confidential and trade secret information

that Barker, its former employee, wrongfully obtained from Diamond, currently possesses, and has already disclosed to at least one third party. Specifically, on November 30, 2009, Barker illegally transmitted highly confidential customer, sales and pricing and forecasting information to an outside financial analyst. As Barker candidly admits in his cover email, this information is “not public” and was obtained by Barker from a “friend inside” Diamond. Other information illegally transmitted by Barker appears to have been improperly retained by Barker after he resigned from Diamond. Diamond, therefore, brings this action for immediate and permanent injunctive relief to prevent further irreparable harm from the continuing possession and disclosure of Diamond’s confidential and trade secret information by Barker, and from Barker’s related (i) breach of his confidentiality obligations to Diamond, (ii) violations of the Illinois

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Uniform Trade Secrets Act, 765 ILCS 1065/1, et seq., and Computer Fraud and Abuse Act, 18 U.S.C. §1030, (iii) inducement of other Diamond employees to breach their confidentiality, fiduciary and loyalty obligations to Diamond, and (iv) conversion of Diamond’s confidential property. THE PARTIES 2.

Diamond is a corporation organized under the laws of Delaware, and it maintains

its principal place of business in California. 3.

Barker is a citizen of Illinois and resides in Palos Heights, Illinois. Barker is a

former employee of Diamond and is currently employed as the Vice President of Sales for Vita Foods Products, Inc. (“Vita Foods”) in Chicago, Illinois. JURISDICTION AND VENUE 4.

This Court has personal jurisdiction over Barker because he is a natural person

domiciled in the State of Illinois and because he committed the tortious acts in question in Illinois. 5.

This Court has federal question jurisdiction over this action pursuant to 28 U.S.C.

§§1331, 1332 and 1367. Diamond’s claims arise, in part, under federal law, specifically the Computer Fraud and Abuse Act, 28 U.S.C. §1030, et seq. The amount in controversy in this action exceeds $75,000 exclusive of interest and costs, and Diamond is not a citizen of the same state as Barker; thus complete diversity of citizenship exists. All of the claims are so related to each other that they form part of the same case or controversy. 6.

Venue is appropriate in this Court pursuant to 28 U.S.C. §1391 because Barker

resides in this judicial district; the claim arises out of incidents occurring in this district; and because the property in question, upon information and belief, is situated in this district.

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FACTUAL BACKGROUND Diamond’s Business 7.

Diamond is the premier processor and marketer of culinary, in-shell snack and

ingredient nuts, as well as popcorn products in the United States. Diamond’s brands include well-known household items Diamond of California® culinary nuts, Emerald® nut snacks, and Pop Secret® popcorn. 8.

Diamond sells its products to major retail stores and grocers throughout the

United States and internationally. Diamond sells its products through direct marketing and sales functions, as well as through independent brokers whose sales of Diamond products are supervised by Diamond’s sales operation. 9.

The nut, snack nut and popcorn markets in the United States are serviced by a

small number of highly-competitive processors and marketers. As such, Diamond closely tracks, forecasts and budgets sales to individual customers – especially its top customers – in order to maintain and grow its competitive advantage in the market. Diamond devotes substantial time, effort and expense to marketing its products to customers, and to negotiating favorable terms and pricing for its products. 10.

Information concerning Diamond’s sales and customers is highly valuable

competitive information, the confidentiality of which is strictly maintained by Diamond. A competitor with access to Diamond’s trade spend, production capacity, sales tracking, budgeting and forecasting information, could harm and undermine Diamond’s sales success with its top customers through insights the information provides as to sales trends and Diamond’s strategic customer initiatives.

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Such access by a competitor could cause Diamond to suffer millions of dollars in

damages through lost sales, and certainly in excess of $75,000. Barker’s Employment At Diamond 12.

By letter dated December 6, 2005 (the “Offer Letter”), Diamond offered Barker

the position of Senior Business Director for Eastern Sales, and an accompanying generous compensation and benefits package. Barker was offered a base salary of $175,000 per year, a $75,000 signing bonus, stock options, participation in an incentive bonus program, and health, welfare and pension benefits. On December 16, 2005, Barker accepted Diamond’s offer by countersigning the Offer Letter. (A true and correct copy of Barker’s signed Offer Letter is attached hereto as Exhibit A.) Barker began work at the beginning of 2006. 13.

Barker resigned on or about October 9, 2009. At the time of his resignation,

Barker was the VP of Strategic Accounts, with responsibility for some of Diamond’s most important and valuable customers. 14.

By signing his Offer Letter, Barker understood and explicitly agreed (i) that

Diamond’s documents and records were Diamond’s exclusive property, (ii) not to remove Diamond’s property from the Diamond’s facilities without written consent; and (iii) that he would acquire confidential, proprietary and trade secret information as a result of his employment with Diamond, and that such information was also the sole and exclusive property of Diamond. 15.

As a condition of his employment with Diamond, Barker executed an

Acknowledgment of Obligation Agreement (“Acknowledgment”) in which he again agreed to maintain the confidentiality of Diamond’s sensitive information. (A true and correct copy of Barker’s signed Acknowledgment is attached hereto as Exhibit B.)

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In the Acknowledgment, Barker expressly agreed that he would not: disclose or use, directly or indirectly, at any time, any information as above defined [information, knowledge or data related to specifications, documents, inventions, methods, processes, products or operations of Diamond], unless such disclosure or use is in the course of my employment by Diamond or has been expressly authorized in writing by Diamond. Except as required in the ordinary course of my duties, I shall not remove any writings containing information from the premises or possession of Diamond . . . unless I have obtained express authorization in writing by Diamond to do so. Diamond Safeguards Its Confidential and Trade Secret Information

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Diamond has implemented security measures to ensure that its confidential and

trade secret information is not used or disclosed outside of Diamond. For example, information stored in Diamond’s computer systems is password protected, and access is limited to employees on a need-to-know basis. Remote access to Diamond’s network is also password protected and is permitted only through a secured connection. 18.

Diamond further protects confidential computer information with a mandatory 15-

minute lock out on company computers. This system operates so that if an employee leaves his or her computer unattended for 15 minutes, the computer will lock, and access can be restored only through entry of a password. Diamond also automatically includes confidentiality notices as a footer to all company e-mails notifying the recipients that the contents of the e-mail should be considered confidential. 19.

In connection with being hired by Diamond, employees with access to

confidential and/or trade secret information are required to enter into confidentiality agreements with Diamond, like Barker did in his Offer Letter and Acknowledgment. As described above, these agreement restrict the use of Diamond’s confidential information.

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Diamond employees also receive training concerning their confidentiality

obligations concerning Diamonds’ confidential, proprietary and trade secret information. 21.

Part of this employee training includes a review of Diamond’s Code of Conduct

and Ethics, which explicitly addresses and reinforces employees’ confidentiality obligations to Diamond. (A true and correct copy of Diamond’s Code of Conduct and Ethics is attached hereto as Exhibit C.) 22.

Diamond’s Code of Ethics provides, in relevant part: As a condition of employment with Diamond, each employee is required to sign a confidentiality agreement. This agreement imposes an obligation upon each and every employee to protect Diamond’s proprietary information, which includes such things as business, financial, research and development, engineering marketing and personnel information. Confidential information also includes any proprietary information shared with Diamond by its customers and business partners, or information that has been acquired by an employee during the course of working for a former employer. Diamond employees have an equal obligation to protect against the unauthorized disclosure or misuse of such third party confidential information. Anyone who has had access to confidential Company information must keep it confidential at all times, both while working for Diamond and after employment ends. *

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Employees must not share confidential Company information, or any confidential information of a customer, distributor, supplier, service provider or business partner, with anyone who has not been authorized to receive it, except when disclosure is authorized or legally mandated. An employee’s unauthorized use or distribution of this information is extremely serious; it would violate his or her Confidential Information and Invention Assignment Agreement and could be illegal, resulting in civil liability or criminal penalties. 23.

Diamond employees must sign an acknowledgment of receipt of the Code of

Conduct and Ethics and expressly must agree to be bound by, and to adhere to, all of the principles and standards contained in the Code. Barker, like other Diamond employees, received

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the Code of Conduct and Ethics, and signed at least one acknowledgment wherein he agreed to be bound to the confidentiality obligations under the Code. (A true and correct copy of Barker’s signed Code of Conduct and Ethics acknowledgement, dated May 30, 2006, is attached hereto as Exhibit D.) Barker’s Resignation and Subsequent Illegal Acts 24.

On or about October 9, 2009, Barker voluntarily resigned his employment from

Diamond, citing health reasons for his desire to cease employment. 25.

After his resignation and exit interview, Barker returned two company-issued

laptops that were in his possession to Diamond’s Chicago field sales office. The laptops were sent to Diamond’s operations headquarters in Stockton, California, and were inspected by Diamond’s IT personnel as part of the normal inspection and archiving protocol Diamond undertakes when an employee leaves the company. 26.

The inspection of Barker’s laptops revealed that Barker had intentionally deleted

all data from one of the laptops and scrubbed his hard drive before returning the computer to Diamond. While Diamond’s investigation continues, Diamond is concerned that Barker may have utilized an external software program to scrub the hard drive of data. Barker’s deletion of data from his computer has not only hampered Diamond’s investigation into Barker’s wrongdoing, but also may deprive the company of valuable business information that Barker, as a highly-ranked sales executive, maintained as part of his job for Diamond. Barker Wrongfully Obtains and Discloses Highly-Sensitive Diamond Information 27.

On November 30, 2009, Barker sent a series of four (4) e-mails to Timothy

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Ramey, a financial analyst with D.A. Davidson & Co. who covers Diamond.1 28.

The body of these e-mail messages purports to disclose significant inside and

confidential information concerning Diamond’s finances and operation, company priorities and strategies, and performance. In addition to the written content in the e-mail messages, Barker attached several files and reports revealing confidential Diamond information. 29.

At least two of reports transmitted by Barker – one entitled “Diamond Foods Top

Customer Report,” and the other “North American Retail Daily Sales Report” (together, “Diamond Sales Reports” – contain non-public, highly-proprietary Diamond information concerning Diamond’s top 27 customers and all national sales, specific sales data, trends and forecasts (by customers and product line), and, critically, Diamond’s 2010 sales budgets. 30.

Diamond has a competitive advantage from the information in the Diamond Sales

Reports not being generally or publicly known.

Moreover, it would be impossible for a

competitor or other third party to recreate the entirety of the reports by lawful means; what information in the reports that could be recreated could only be accomplished through significant expense, time and resources. 31.

Information like that contained in the Diamond Sales Reports can be accessed

only by select Diamond employees and brokers in Diamond’s sales and marketing operations and high-level company executives. In addition, in meetings at which such information and data is discussed, the confidentiality and sensitivity of the information is further reinforced to meeting attendees by verbal statements and confidentiality warnings. 32.

The sensitivity of the Diamond Sales Reports was not lost on Barker. In the e-

mail to which these particular two reports were attached, Barker warned: “This is not public data 1 Neither Mr. Ramey nor D.A. Davidson & Co. (“Davidson”) are accused of any wrongdoing in this matter. In fact, it was Davidson that brought Barker’s conduct to Diamond’s attention.

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but a friend inside sent it to me. If you use it please keep your source confidential.” (A true and correct copy of this e-mail is attached hereto as Exhibit E. Confidential Diamond information has been redacted from the document.) 33.

Several of the reports and files disclosed by Barker include financial reports

prepared by the A.C. Nielsen Company, which are made available by Nielsen through a paid subscription service. Barker had access to Diamond’s Nielsen reports, through Diamond’s paid subscription, as part of his job at Diamond. 34.

Upon information and belief, several of the Nielsen reports transmitted by Barker

were received by Barker as part of his job at Diamond, and were wrongfully retained by him after his resignation from the company. 35.

Diamond never consented or approved of Barker’s disclosure of Diamond

information to Mr. Ramey or any other third party. Barker Induces a Diamond Employee to Provide Diamond’s Confidential Information 36.

Barker’s admission in the above e-mail reveals yet another wrongful act. The

Diamond Sales Reports that accompanied this particular e-mail were created on or after November 20, 2009 – long after Barker left Diamond’s employ. Barker indicates that “a friend inside” Diamond sent these reports to Barker. 37.

While Diamond’s investigation continues, Barker, upon information and belief,

induced a Diamond employee who formerly reported to Barker, to provide these highlyconfidential reports to him. 38.

Diamond has determined that on November 30, 2009 – the same day Barker sent

the reports to Mr. Ramey – the Diamond employee in question sent e-mails from his Diamond email account to his personal Google e-mail account which contained, among other files and

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reports, the very Diamond Sales Reports that Barker sent to Ramey. 39.

The Diamond employee in question has resigned his employment with Diamond,

to be effective December 4, 2009, and has indicated that he will be going to work with Barker at Vita Foods. Barker Is Shopping Diamond Inside Information for Personal Profit 40.

At least part of Barker’s motivation for illegally disclosing high-sensitive

Diamond information to Mr. Ramey, and perhaps others, is apparent from Barker’s own e-mail – Barker is trying to personally profit from trade in Diamond information. 41.

In one of his November 30 e-mails to Mr. Ramey, Barker makes explicit his fee-

for-information offer: “I would like to keep in touch and if your company allows it, possibly setup some type of consulting arrangement for an agreed upon fee where I can be helpful.” (A true and correct copy of this e-mail is attached hereto as Exhibit F. Confidential Diamond information has been redacted from the document.) 42.

Diamond’s investigation has revealed that Barker may have shopped inside

Diamond information to financial analysts prior to the November 30, 2009 e-mails to Mr. Ramey, and possibly while he was still working for Diamond. Barker recently bragged to a Diamond employee that he had negotiated a consulting arrangement with one analyst whereby he was being paid $1,000 per day for information. 43.

During his employment with Diamond and thereafter, Barker was prohibited from

discussing confidential Diamond matter with analysts or any other third party. 44.

Moreover, in order to comply with SEC rules and regulations, Diamond’s

communications with analysts was and is limited to select Diamond executives and officers, and is made available to all Diamond analysts equally.

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If the information Barker wrongfully possesses, and that he has already illegally

disclosed to at least one outside analyst, were to be misused and/or improperly relied upon by an analyst, Diamond would suffer unwarranted harm to its goodwill and market value in an amount far in excess of $75,000. COUNT I VIOLATION OF THE COMPUTER FRAUD AND ABUSE ACT 18 U.S.C. §1030 46.

Diamond realleges and restates paragraphs 1-45 as if fully restated herein.

47.

The Computer Fraud and Abuse Act (“CFAA”) provides for a private right of

action against anyone who “intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains information from any protected computer if the conduct involved an interstate or foreign communication.” 18 U.S.C. §§1030(a)(2)(C), (g). 48.

The CFAA provides for a private right of action against anyone who (i)

intentionally transmits a program, code or command to a protected computer, and as a result of such conduct either recklessly causes damage or causes damages and loss, or (ii) who accesses a protected computer without authorization and, as a result of that conduct, causes damage and/or loss. 18 U.S.C. §§1030(a)(5), (g). 49.

Diamond’s computers are used to conduct interstate communications and

commerce and are thus “protected computers” within the meaning of the CFAA, which includes a computer “used in or affecting interstate or foreign commerce or communication.” 18 U.S.C. §§1030(e)(2). 50.

On information and belief, Barker intentionally transmitted commands to his

Diamond computer to cause the all of the Diamond information and data contained thereon to be deleted and rendered inaccessible to Diamond. Diamond is concerned that Barker accomplished this mass deletion through the intentional transmission of a computer program or code designed 11

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to erase and obscure data on computer hard drives. 51.

At the time Barker deleted the files and data on his Diamond computer, Barker

did not have authorization or entitlement to access his Diamond computer because he had, upon information and belief, already resigned and/or breached his fiduciary and loyalty duties to Diamond. 52.

Upon information and belief, Barker intentionally and improperly transferred

Diamond confidential and proprietary files to external storage devices for personal use prior to the mass deletion of such materials from Diamond’s computer. 53.

Diamond has suffered damage and loss as the result of Barker’s actions.

Diamond has suffered and/or will with reasonable certainty suffer losses exceeding $5,000. Diamond’s investigations into Barker’s illegal conduct has just begun and Diamond is in the process of retaining outside computer forensic experts to discover the extent and consequences of Barker’s unauthorized activities and damage to the integrity of the Diamond’s data. COUNT II: VIOLATION OF ILLINOIS TRADE SECRETS ACT 765 ILCS 1065/1 et seq. 54.

Diamond realleges and restates paragraphs 1-53 as if fully restated herein.

55.

As set forth above, Barker had access to and is currently in the possession of

certain confidential and proprietary information constituting “trade secrets” as defined by the Illinois Trade Secrets Act, 765 ILCS 1065/1 et seq., including the pricing and other strategic financial data concerning Diamond’s sales, sales plans, trends and budgets, and top customers. 56.

This information is sufficiently secret to derive economic value from not being

generally known to other persons or entities who can obtain economic value from its disclosure or use.

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This information is the subject of efforts that are reasonable under the

circumstances to maintain its secrecy or confidentiality. 58.

Barker’s illegal disclosure and current possession of, and refusal to return,

Diamond’s trade secret information is being done without Diamond’s authorization or permission.

Barker has also used and disclosed Diamond’s confidential and trade secret

information with full knowledge that this information was acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use. 59.

Barker’s unauthorized possession, use, and/or disclosure of Diamond’s trade

secret information, actual and threatened, violates the Illinois Trade Secrets Act. 60.

As a result of the foregoing and as long as Barker possesses Diamond’s trade

secret information, Diamond has no adequate remedy at law and has suffered and will continue to suffer an imminent risk of further irreparable harm, unless Barker’s activities are enjoined by the Court and Barker is required to cease any and all disclosure of Diamond information, to return Diamond’s documents and information and to provide a complete accounting of all Diamond’s documents and information (both hard and electronic copies) that he removed or obtained from Diamond and/or disclosed to third parties. 61.

Diamond has been damaged and continues to be damaged by the

misappropriation, use, and/or disclosure of its trade secrets by Barker. COUNT III: BREACH OF CONTRACT 62.

Diamond realleges and restates paragraphs 1-61 as if fully restated herein.

63.

Barker’s executed Offer Letter, Acknowledgment and Code of Conduct and

Ethics constitute valid and enforceable contracts.

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Diamond has fully performed all of its obligations to Diamond under these

agreements. 65.

Barker breached these agreement by, among other wrongful acts: (i) retaining

Diamond property and confidential information following his resignation from Diamond; (ii) obtaining additional Diamond confidential information after his employment with Diamond ceased; and (iii) purposefully and disclosing confidential and trade secret Diamond information to third parties, both during and after his employment with Diamond. 66.

Diamond has no adequate remedy at law and will suffer irreparable harm unless

Barker’s activities are enjoined by the Court and Barker is required to immediately cease disclosing other otherwise using Diamond’s information to third parties, to return Diamond’s documents and information and to provide a complete accounting of all Diamond’s documents and information (both hard and electronic copies) that he removed or obtained from Diamond. COUNT IV: CONVERSION 67.

Diamond realleges and restates paragraphs 1-66 as if fully restated herein.

68.

The property at issue is Diamond’s confidential and trade secret information in

any form, such as the electronic documents or files containing such information that are currently possessed by Barker. 69.

Diamond is the rightful owner of this property. Diamond is lawfully entitled to

the possession thereof, and it has an absolute and unconditional right to the immediate possession of the property. 70.

Barker has wrongfully and without authorization obtained and retained control,

dominion, and/or ownership of this property. After his employment was terminated, Barker no longer had any right to possess or obtain this property.

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71.

Diamond has demanded the return of this property, and Barker has failed to return

72.

Barker’s possession and retention of this property now constitutes conversion and

it.

has harmed Diamond. COUNT V: BREACH OF FIDUCIARY DUTY 73.

Diamond realleges and restates paragraphs 1-72 as if fully restated herein.

74.

Barker, as an employee and high-ranking executive of Diamond, owed fiduciary

duties to Diamond. These fiduciary duties include the obligation not to disclose Diamond’s confidential information to third parties without Diamond’s authorization. 75.

Barker breached his fiduciary duties to Diamond by, inter alia, disclosing

Diamond’s confidential information to Mr. Ramey and, upon information and belief, to other analysts and third parties. 76.

By reason of the foregoing, Barker has directly and proximately caused injury to

Diamond, and Diamond has suffered, and continues to suffer, substantial injury as a result of Barker’s actions. COUNT VI: INDUCING BREACH OF FIDUCIARY/LOYALTY DUTY 77.

Diamond realleges and restates paragraphs 1-76 as if fully restated herein.

78.

Barker, being fully aware and in complete disregard of another employee’s

employment with Diamond, and fiducial and loyalty duties to Diamond, actively encouraged, induced, and persuaded that employee to breach his fiduciary duties to Diamond. 79.

By reason of the foregoing, Barker has directly and proximately caused injury to

Diamond, and Diamond has suffered, and continues to suffer, substantial injury as a result of Barker’s actions. 15

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PRAYER FOR RELIEF WHEREFORE, Diamond requests that judgment be granted in its favor and against Barker, and that Diamond be granted: (a) a preliminary and permanent injunction against Barker and anyone acting in concert with him, prohibiting them from using or disclosing Diamond’s confidential and proprietary information (including trade secrets); (b) an order mandating that Barker: (i) immediately return any and all copies, reproductions, summaries, or notes made from any confidential or proprietary information (including trade secrets) that came into his possession through his employment with Diamond, or obtained by him thereafter; and (ii) immediately produce for inspection his personal computer(s) and any other electronic storage media in Barker’s possession, custody, or control, so that they may be inspected for Diamond information; (c) compensatory and punitive damages; (d) reasonable attorneys’ fees and court costs; and (e) such other relief as this Court deems just and proper.

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Dated: December 3, 2009

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Respectfully submitted,

DIAMOND FOODS, INC. By: __/s/ John M. Dickman______________ One of Its Attorneys John M. Dickman ([email protected]) Shane W. Blackstone ([email protected]) Marlén Cortez Morris ([email protected]) WINSTON & STRAWN LLP 35 West Wacker Drive Chicago, Illinois 60601 (312) 558-5600 (312) 558-5700 (fax)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION DIAMOND FOODS, INC., a Delaware corporation, Plaintiff, vs. JAMES M. BARKER, Defendant.

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Case No.

INDEX OF EXHIBITS TO PLAINTIFF’S VERIFIED COMPLAINT FOR INJUNCTIVE AND OTHER RELIEF Description

Exhibit No.

Offer Letter Signed by James M. Barker ............................................................................A Acknowledgment of Obligation Agreement Signed by James M. Barker..........................B Diamond Foods, Inc.’s Code of Conduct and Ethics..........................................................C Acknowledgment Signed by James M. Barker of Diamond Foods, Inc.’s Code of Conduct and Ethics ...............................................................................................D E-mail from James M. Barker dated November 30, 2009, sent at 1:32 PM....................... E Email from James M. Barker dated November 30, 2009, sent at 1:28 PM ........................ F

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Exhibit A

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Exhibit B

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Exhibit C

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DIAMOND FOODS, INC. CODE OF CONDUCT AND ETHICS FOR EMPLOYEES, OFFICERS AND DIRECTORS 1.

Introduction

Diamond Foods, Inc., a Delaware corporation (“Diamond” or “Company”) has adopted this Code of Conduct and Ethics (this “Code”) to set high standards of ethical business conduct and provide guidance applicable to every employee, including every officer, and director of the Company. 1.1

Scope

This Code shall apply to all Diamond employees and directors. This Code is intended to supplement and not to replace existing Company policies and procedures. Diamond may modify or update these more specific policies and procedures from time to time and adopt new company policies and procedures in the future. Nothing in this Code is intended to alter the existing legal rights and obligations of Diamond or any of its employees or directors, including “at will” employment arrangements or the terms of any employment-related agreements. 1.2

Responsibility

It is every employee’s and director’s responsibility to read and understand this Code, and to use it as a guide to the performance of his or her responsibilities for the Company. This Code cannot address every ethical issue or circumstance that may arise, so, in complying with the letter and spirit of this Code, employees and directors must apply common sense, together with high personal standards of ethics, honesty and accountability, in making business decisions where this Code has no specific guideline. In complying with this Code, employees and directors should also consider the conduct of their family members and others who live in their household. Diamond expects all of its directors, executives, managers and other supervisory personnel to help foster a sense of commitment to this Code among all of its employees, and to foster a culture of fairness, honesty and accountability within the Company. Diamond also expects such personnel to ensure that Diamond’s agents and contractors conform to Code standards when working on Diamond’s behalf. 1.3

Compliance

Any employee that needs help understanding this Code, or how it applies to conduct in any given situation should contact his or her supervisor or the Compliance Officer designated by the Company. In addition, employees should be alert to possible violations of this Code by others and should report suspected violations, without fear of any form of retaliation, as described in Section 13. 2.

Applicable Documents

24579/00018/DOCS/1506861.3

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This Code is intended to supplement and not to replace existing Company policies and procedures, including without limitation those set forth in the Company’s Employee Handbook, as it may exist from time to time. 3.

General Legal and Ethical Obligations

Diamond’s success depends upon each employee and director performing his or her Company duties in compliance with applicable laws and in cooperation with governmental authorities. It is essential that employees and directors know and understand the legal and regulatory requirements that apply to Diamond’s business and to their specific area of responsibility. While employees and directors are not expected to have complete mastery of these laws, rules and regulations, they are expected to be able to recognize situations that require them to consult with others to determine the appropriate course of action. To address questions in the area of legal compliance, employees should approach their supervisor or the Compliance Officer immediately. Legal compliance is only a part of Diamond’s ethical responsibility, however, and should be viewed as the minimum acceptable standard of conduct. Diamond strives to act with the utmost integrity, not just in its most important corporate decisions, but also in the actions taken every day by its employees and directors. Ethical conduct is a high ideal, but often just means exercising common sense and sound judgment. Acting ethically will help Diamond become a better company, a better commercial partner for other companies, and a better corporate citizen. 3.1

International Business Laws

Employees and directors are expected to comply with all applicable laws wherever they travel on Company business, including laws prohibiting bribery, corruption or the conduct of business with specified individuals, companies or countries. Diamond also expects employees and directors to continue to comply with U.S. laws, rules and regulations governing the conduct of business by U.S. citizens and corporations outside the United States. These U.S. laws, rules and regulations, which extend to all of Diamond’s activities outside the United States, include: x

The Foreign Corrupt Practices Act, which prohibits any corrupt offer, payment, promise to pay, or authorization to pay any money, gift, or anything of value (made directly or through intermediaries) to any foreign official, or foreign political party, candidate or official, in order to obtain or retain business for anyone or direct business to anyone, and requires the maintenance of accurate books of account, with all company transactions being properly recorded;

x

U.S. embargoes, which restrict or, in some cases, prohibit U.S. persons, corporations and, in some cases, foreign subsidiaries from doing business with certain countries, groups or individuals;

x

Export controls, which restrict travel to designated countries or prohibit or restrict the export of goods, services and technology to designated countries, identified

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persons or entities from the United States, or the re-export of U.S.-origin goods from the country of original destination to such designated countries or identified companies or entities; and x

Anti-boycott compliance, which prohibits U.S. companies from taking any action that has the effect of furthering any unsanctioned boycott of a country friendly to the United States.

Employees and directors who have questions as to whether an activity is restricted or prohibited should contact the Compliance Officer before taking any action. 4.

Conflicts of Interest

Although employees and directors are generally free to engage in personal financial and business transactions, this freedom is not without constraints. Every employee and director must avoid situations where loyalties may be divided between Diamond’s interests and the employee's or director’s own interests. Employees and directors should also seek to avoid the appearance of a conflict of interest. If an employee is considering engaging in a transaction or activity that may present a conflict of interest or the appearance of a conflict of interest, the employee should disclose the matter to the Compliance Officer, so that, if appropriate, the Compliance Officer may disseminate such information and/or obtain approvals before the employee engages in such transaction or activity. In evaluating whether an actual or contemplated activity may involve a conflict of interest, an employee or director should consider: 

Whether the activity would appear improper to an outsider;



Whether the activity could interfere with the job performance or morale of a Company employee;



Whether the employee or director involved in the activity has access to confidential Company information or influence over significant Company resources or decisions;



The potential impact of the activity on the Company’s business relationships, including relationships with customers, suppliers and service providers; and



The extent to which the activity could benefit the employee or director or his or her relative, directly or indirectly.

A few examples of activities that could involve conflicts of interests include: 

Aiding Diamond’s competitors. Aiding Diamond’s competitors can include without limitation passing confidential Company information to a competitor or accepting payments or other benefits from a competitor.



Participating in any company that does business with Diamond or seeks to do business with Diamond. Employment by or service on the board of a customer, 3 24579/00018/DOCS/1506861.3

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distributor, supplier or vendor is generally discouraged and employees and directors must seek approval in advance if they plan to have such a relationship. 

Owning a significant financial interest in a competitor or a company that does business with Diamond or seeks to do business with Diamond. In evaluating such interests for conflicts, both direct and indirect interests that an employee or director may have should be considered, along with factors such as the following: ¾ The size and nature of the interest; ¾ The nature of Diamond’s relationship with the other entity; ¾ Whether the employee or director has access to confidential Company information; and ¾ Whether the employee or director has an ability to influence Company decisions that would affect the other entity. Any employee or director who has or wishes to acquire a significant financial interest in a competitor; or in a customer, supplier or vendor with which he or she has direct business dealings (or approval responsibilities) must consult with the Compliance Officer. Similarly, any employee or director who experiences a change of position or seniority that results in direct business dealings with a customer, supplier or vendor in which he or she already has a significant financial interest must consult with the Compliance Officer.



Having authority on behalf of Diamond over a co-worker who is also a family member, or transacting business on behalf of Diamond with a family member. Any employee who may be involved in such a situation should consult with his or her supervisor and the Compliance Officer to assess the situation and an appropriate resolution.



Soliciting or accepting payments, gifts, loans, favors or preferential treatment from any person or entity that does or seeks to do business with Diamond. See Section 4.1 for further discussion of the issues involved in this type of conflict.



Taking personal advantage of corporate opportunities. See Section 4.2 for further discussion of the issues involved in this type of conflict.

Employees must avoid these situations (and others like them), whenever their loyalty to Diamond could be compromised. Employees who believe they are involved in a potential conflict of interest are expected to discuss it with the Compliance Officer. Like employees, members of the Board of Directors should also seek to avoid conflicts of interest with their obligations to Diamond. To that end, any director who confronts a conflict of interest in connection with a decision to be made by the Board, or otherwise, should take such steps as are necessary to avoid the conflict of interest, including notifying the Chairman of the

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Board and Chief Executive Officer and, if appropriate, recusing himself or herself from discussions by the Board which could be perceived to create such a conflict. 4.1

Gifts and Entertainment.

Building strong relationships with customers, distributors and suppliers is essential to Diamond’s business. Socializing with customers, distributors and suppliers is an integral part of building those relationships. However, good judgment should be exercised in providing or accepting business meals and entertainment or inexpensive gifts, so that all such conduct is consistent with customary and prudent business practices. While individual circumstances differ, the overriding principle concerning gratuities is not to give or accept anything of value that could be perceived as creating an obligation on the part of the recipient (whether a Diamond employee, a customer, a distributor or a supplier) to act other than in the best interests of his or her employer or otherwise to taint the objectivity of the individual's involvement. It is the responsibility of each employee to ensure that providing or accepting a gratuity is appropriate under the circumstances. This principle applies to Diamond’s transactions everywhere in the world, even if it conflicts with local custom. Under some statutes, such as the United States Foreign Corrupt Practices Act, giving anything of value to a government official to obtain or retain business or favorable treatment is a criminal act subject to prosecution and conviction. Employees should discuss any uncertainties about proposed entertainment or gifts with the Compliance Officer. 4.2

Corporate Opportunities

Employees and directors may not compete with Diamond or take personal advantage of business opportunities that Diamond might want to pursue. Employees and directors who are interested in the use of Company property or information, or in pursuing an opportunity that they discovered through their Company position should consult with the Compliance Officer to determine an appropriate course of action. Even opportunities that are acquired through independent sources may be questionable if they are related to the Company’s existing or proposed lines of business. Employees and directors owe a duty to Diamond to advance its legitimate business interests when opportunities arise. Accordingly, participation in an outside business opportunity that is related to Diamond’s existing or proposed lines of business is prohibited. 4.3

Employee Loans

Loans to employees or their family members by Diamond, or guarantees of their loan obligations, could constitute an improper personal benefit to the recipients of such loans or guarantees. Accordingly, Company loans and guarantees for executive officers and directors are expressly prohibited by law and Company policy. Any loans to employees require the prior approval of the Board of Directors.

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Related Party Transactions

A related party transaction includes any transaction, or series of similar transactions, since the beginning of the Company’s last fiscal year, or any currently proposed transaction or series of similar transactions, where: (i) the Company or its subsidiary is a party, (ii) the amount involved exceeds $60,000 in aggregate, and (iii) in which any of the following persons had or will have a direct or indirect material interest: any director or director nominee; any executive officer; any holder of more than five percent of the Company’s common stock; or any member of the immediate family of such persons. Through its Compliance Officer, Diamond will conduct a review of all related party transactions for potential conflicts of interest situations. All related party transactions must be approved by the Audit Committee of the Board of Directors or another independent body of the Board of Directors. 5.

Insider Trading

In the course of doing business for Diamond, or in discussions with one of its customers, distributors or suppliers, Diamond employees and directors may become aware of material nonpublic information about Diamond or another organization. Information is considered “material” if it might be used by an investor to make a decision to trade in the public securities of the company. Employees may only use such information for the purpose of conducting Company business. Federal law and Company policy prohibit employees and directors, directly or indirectly through their families or others, from purchasing or selling Company stock while in the possession of material, non-public information concerning Diamond. This same prohibition applies to trading in the stock of other publicly held companies on the basis of material, nonpublic information. If an employee or director is considering buying or selling a stock because of inside information he or she possesses, he or she should assume that such information is material. It is also important for the employee or director to keep in mind that if any trade he or she makes becomes the subject of an investigation by the government, the trade will be viewed after-thefact with the benefit of hindsight. Consequently, employees and directors should always carefully consider how their trades would look from this perspective. If an employee's or director’s family or friends ask for advice about buying or selling Diamond stock, the employee or director should not provide it. Federal law and Company policy also prohibit the employee or director from “tipping” family or friends regarding material, nonpublic information that the employee or director learns about Diamond or any other publicly traded company in the course of employment or service on the Board. The same penalties apply, regardless of whether the employee or director derives any benefit from the trade. Because of the sensitive nature of and severe penalties associated with insider trading and tipping, employees and directors must exercise the utmost care when in possession of material inside information. All employees and directors shall follow the guidelines and policies on securities trading issued by Diamond and should review Diamond’s insider trading policy.

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Competition and Fair Dealing

Diamond strives to compete vigorously and to gain advantages over its competitors through superior business performance, not through unethical or illegal business practices. No employee may through improper means acquire proprietary information from others, possess trade secret information, or induce disclosure of confidential information from past or present employees of other companies. Employees that have obtained information of this variety by mistake or have any questions about the legality of future actions must consult the Compliance Officer, as described in Section 13. All employees are expected to deal fairly and honestly with Diamond customers, suppliers, employees and anyone else with whom they have contact in the course of performing their Company duties. Making false or misleading statements about Diamond’s competitors is prohibited by this Code, inconsistent with Diamond’s reputation for integrity and harmful to Diamond’s business. Employees may not take unfair advantage of anyone through misuse of confidential information, misrepresentation of material facts or any other unfair business practice. 6.1

Policies Specific to Procurement

Employees involved in procurement have a special responsibility to adhere to principles of fair competition in the purchase of products and services by selecting suppliers based exclusively on normal commercial considerations, such as quality, cost, availability, service and reputation, and not on the receipt of special favors. 6.2

Policies Specific to Sales

Employees involved in sales have a special responsibility to abide by all Company policies regarding selling activities, including policies relevant to revenue recognition by the Company. 6.3

Antitrust Laws

Antitrust laws are designed to protect customers and the competitive process. These laws generally prohibit the Company from establishing: 

Price fixing arrangements with competitors;



Arrangements with competitors to share pricing information or other competitive marketing information, or to allocate markets or customers;



Agreements with competitors or customers to boycott particular suppliers, customers or competitors; and



A monopoly or attempted monopoly through anticompetitive conduct.

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even where no formal arrangement exists, merely exchanging information can create the appearance of an improper arrangement. Noncompliance with the antitrust laws can have extremely negative consequences for Diamond, including long and costly investigations and lawsuits, substantial fines or damages, and adverse publicity. Understanding the requirements of antitrust and unfair competition laws of the jurisdictions where Diamond does business can be difficult, so employees and directors are urged to seek assistance from the Compliance Officer whenever they have a question relating to these laws. 7. Maintenance of Corporate Books, Records and Accounts; Financial Integrity; Public Reporting Diamond strives to maintain complete integrity of its records and public disclosure. Diamond’s corporate and business records, including all supporting entries to its books of account, must be completed honestly, accurately and intelligibly. Company records are important to investors and creditors. They serve as a basis for managing Company business and are important in meeting its obligations to customers, suppliers, creditors, employees and others with whom Diamond does business. Diamond depends on its books, records and accounts accurately and fairly reflecting, in reasonable detail, its assets, liabilities, revenues, costs and expenses, as well as all transactions and changes in assets and liabilities. To help ensure the integrity of its records and public disclosure, Diamond requires that: 

No entry be made in Diamond books and records that is intentionally false or misleading;



Transactions be supported by appropriate documentation;



The terms of sales and other commercial transactions be reflected accurately in the documentation for those transactions and all such documentation be reflected accurately in Company books and records;



Employees comply with Diamond’s system of internal controls and be held accountable for their entries;



Any off-balance sheet arrangements of the Company be clearly and appropriately disclosed;



No cash or other assets be maintained for any purpose in any unrecorded or “off-thebooks” fund;



Assets and liabilities of the Company shall be recognized and stated in accordance with Diamond’s standard practices and generally accepted accounting principles (“GAAP”); and



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Diamond’s disclosure controls and procedures are designed to help ensure that Diamond’s public disclosures are full, fair and accurate, that they fairly present its financial condition and results of operations, and that they are timely and understandable. Employees who collect, provide or analyze information for or otherwise contribute in any way to preparing or verifying these reports should adhere to all disclosure controls and procedures and generally assist the Company in producing financial disclosures that contain all of the information about the Company that is required by law and would be important to enable investors to understand Diamond’s business and its attendant risks. In particular: x

No employee may take or authorize any action that would cause Diamond’s financial records or financial disclosures to fail to comply with GAAP, the rules and regulations of the SEC or other applicable laws, rules and regulations;

x

All employees must cooperate fully with Diamond’s finance department, as well as Diamond’s independent public accountants and counsel, respond to their questions with candor and provide them with complete and accurate information to help ensure that the Company’s books and records, as well as its reports filed with the SEC, are accurate and complete; and

x

No employee shall knowingly make (or cause or encourage any other person to make) any false or misleading statement in any of the Company’s reports filed with the SEC or any third party or knowingly omit (or cause or encourage any other person to omit) any information necessary to make the disclosure in any of such reports accurate in all material respects.

If any employee becomes aware that Diamond’s public disclosures are not full, fair and accurate, or if any employee becomes aware of a transaction or development that he or she believes may require disclosure, he or she should report the matter immediately to the Compliance Officer. 8.

Records Management

The Compliance Officer has companywide responsibility for developing, administering and coordinating the record management program, and issuing retention guidelines for specific types of documents. Records should be maintained to comply with applicable statutory, regulatory or contractual requirements, as well as those pursuant to prudent business practices. Employees can contact the Compliance Officer for specific information on record retention 9.

Political Contributions and Gifts

Diamond reserves the right to communicate its position on important issues to elected representatives and other government officials. It is Diamond’s policy to comply fully with all local, state, federal, foreign and other applicable laws, rules and regulations regarding political contributions. Accordingly, it is Company policy that no corporate funds may be used to make political contributions of any kind to any candidate, political party or to intermediary organizations such as a political action committee (“PAC”), provided that this policy does not prohibit the formation of a PAC sponsored by Diamond and the use of corporate funds to defray

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the administrative expenses of the operation of such a PAC in accordance with appropriate federal and state laws. This general prohibition covers not only direct contributions but also indirect assistance or support of candidates or political parties through the purchase of tickets to special dinners or other fund-raising events, and the furnishing of any other goods, services or equipment to political parties or committees. Political contributions or activities by individuals on their own behalf are, of course, permissible. Employees should not make such contributions in a way that might appear to be an endorsement or contribution by Diamond. No person may be reimbursed directly or indirectly by the Company for any political contribution either to a candidate or a PAC or for the cost of attending any political event. 10.

Confidentiality

As a condition of employment with Diamond, each employee is required to sign a confidentiality agreement. This agreement imposes an obligation upon each and every employee to protect Diamond’s proprietary information, which includes such things as business, financial, research and development, engineering marketing and personnel information. Confidential information also includes any proprietary information shared with Diamond by its customers and business partners, or information that has been acquired by an employee during the course of working for a former employer. Diamond employees have an equal obligation to protect against the unauthorized disclosure or misuse of such third party confidential information. Anyone who has had access to confidential Company information must keep it confidential at all times, both while working for Diamond and after employment ends. 10.1

Sharing Information with Third Parties

Employees must not share confidential Company information, or any confidential information of a customer, distributor, supplier, service provider or business partner, with anyone who has not been authorized to receive it, except when disclosure is authorized or legally mandated. An employee’s unauthorized use or distribution of this information is extremely serious; it would violate his or her Confidential Information and Invention Assignment Agreement and could be illegal, resulting in civil liability or criminal penalties. 10.2

Precautions

Employees must take precautions to prevent unauthorized disclosure of confidential information. Accordingly, employees should also take steps to ensure that business-related paperwork and documents are produced, copied, faxed, filed, stored and discarded by means designed to minimize the risk that unauthorized persons might obtain access to confidential information. Employees should not discuss sensitive matters or confidential information in public places, and they should avoid discussing confidential information on cellular phones to the extent practicable. Employees may not discuss Company business in any Internet “chat room,” regardless of whether they use their own name or a pseudonym, or otherwise post Company information on the Internet. All Company emails, voicemails and other communications are presumed confidential and should not be forwarded or otherwise disseminated outside of the Company, except where required for legitimate business purposes.

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Employees are required to observe the provisions of any other specific policy regarding privacy and confidential information that the Company may adopt from time to time. 11.

Protection and Proper Use of Company Assets

All employees and directors are expected to protect Diamond’s assets and ensure their efficient use for legitimate business purposes. Theft, carelessness and waste have a direct impact on Diamond’s profitability. Company property, such as computer equipment, buildings, furniture and furnishings, office supplies and products and inventories, should be used only for activities related to employment, although incidental personal use is permitted. Employees should bear in mind that Diamond retains the right to access, review, monitor and disclose any information transmitted, received or stored using Company electronic equipment, with or without an employee’s or third party’s knowledge, consent or approval. Employees must immediately report any misuse or suspected misuse of Company assets to their supervisor or the Compliance Officer. 12.

Media Contacts and Public Communications

It is Diamond’s policy to disclose material information concerning Diamond to the public only in accordance with its communications and disclosure guidelines and policies, in order to avoid inappropriate publicity and to ensure that all such information is communicated in a way that is reasonably designed to provide broad, non-exclusionary distribution of information to the public. All inquiries or calls from the press, investors and financial analysts should be referred to the Chief Financial Officer (“CFO”). Diamond has designated its Chief Executive Officer (“CEO”), CFO, Chief Operating Officer (“COO”) and investors relations staff as its official spokespersons for financial matters and for marketing, technical and other related information. These persons are the only ones who are authorized to communicate with the press, investors or financial analysts on behalf of the Company, unless a specific exception has been made by the CEO, CFO or COO. 13.

Compliance Standards and Procedures 13.1

Compliance Resources

Diamond has an obligation to promote ethical behavior. Every employee is encouraged to talk to his or her supervisor, managers and other appropriate personnel when in doubt about the application of any provision of this Code. In addition to fielding questions with respect to interpretation or potential violations of this Code, the Compliance Officer is responsible for: x

Investigating possible violations of this Code;

x

Training new employees in Code policies;

x

Conducting annual training sessions to refresh employees’ familiarity with this Code;

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x

Updating this Code as needed, with approval of the Board of Directors, to reflect changes in the law, Company operations and recognized best practices, and to reflect Company experience with this Code; and

x

Otherwise promoting an atmosphere of responsible and ethical conduct.

The most immediate resource available to employees for matters related to this Code is their supervisor. The supervisor may have the information requested or may be able to refer the question to another appropriate source. There may, however, be times when employees prefer not to go to their supervisor. In these instances, employees should feel free to discuss their concerns with the Compliance Officer. If an employee is uncomfortable speaking with the Compliance Officer because he or she works in that employee’s department or is one of his or her supervisors, the employee may contact the Chairperson of the Audit Committee of the Board of Directors. 13.2

Clarifying Questions and Concerns; Reporting Possible Violations (a)

Employee Reporting

If an employee becomes aware of or suspects that unethical or illegal conduct has occurred or is about to occur, the employee should discuss the matter promptly with his or her supervisor or the Compliance Officer; even the appearance of impropriety could be very damaging to the Company. Employees that are aware of a suspected or actual violation of Code standards by others have a responsibility to report it. All information regarding suspected ethical violations or unlawful activity will be received on a confidential basis. While complete confidentiality cannot be guaranteed, confidentiality will be maintained to the extent possible in conducting internal investigations and, where action is warranted, in carrying out disciplinary measures. Employees are assured that they may report unethical conduct without fear of retribution. Diamond will not tolerate adverse actions being taken against an employee for reporting violations of law or Company policies, or for participating in internal investigations. (b)

Compliance Officer Investigation

Supervisors must promptly report any complaints or observations of Code violations to the Compliance Officer. The Compliance Officer will investigate all reported possible Code violations promptly and with the highest degree of confidentiality that is possible under the specific circumstances. Employee cooperation in the investigation will be expected. As needed, the Compliance Officer will consult with outside counsel, the Human Resources department, the Audit Committee, and the full Board of Directors if necessary. (c)

Response to Violations

If the investigation indicates that a violation of this Code may have occurred, Diamond will take such action as it deems appropriate under the circumstances. If Diamond determines that an employee is responsible for a Code violation, he or she will be subject to disciplinary action up to, and including, termination of employment and, in appropriate cases, civil action or 12 24579/00018/DOCS/1506861.3

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referral for criminal prosecution. Appropriate action may also be taken to deter any future Code violations. 13.3

Identification of Responsible Parties; Anonymous Reporting Procedures

Employees are responsible for promptly reporting any issue or concern that they believe in good faith may constitute a violation of this Code or any other Company policy. To report a violation of this Code, or of any other Company policy, employees should contact the Compliance Officer, who is the Company’s General Counsel, at [email protected] or (209) 932-5640. Anonymous letters may be sent to: Attn: General Counsel, 1050 South Diamond Street, Stockton, CA 95201. To address any concerns regarding accounting, internal accounting controls or auditing matters relating to Diamond or other issues that should be brought to the attention of the Audit Committee, employees may contact the Audit Committee of the Board of Directors directly:

14.

x

By email to [email protected] or

x

Employees that prefer to maintain anonymity may send correspondence to the Audit Committee at the following outside mailing address: c/o Steve Neil, 1855 Gateway Boulevard, Suite 700, Concord, CA 94520. Waiver and Amendment

Any waiver or amendment of this Code that applies to any of Diamond’s directors or executive officers must be in writing, must be authorized only by the Board of Directors and must be promptly disclosed to stockholders, along with the reasons for the waiver. Any such amendment or waiver will be disclosed as required by applicable laws, rules and regulations. 15.

No Rights Created

This Code is a statement of fundamental principles, policies and procedures that govern Diamond employees, officers and directors in the conduct of Diamond business. It is not intended to and does not create any legal rights for any customer, supplier, competitor, stockholder or any other person or entity. 16.

Modifications

This Code shall be reviewed periodically by the Board of Directors and the Nominating and Governance Committee of the Board of Directors and shall be updated as deemed appropriate or necessary by the Board and/or the Nominating and Governance Committee. Company management shall obtain written acceptance of this Code and maintain records thereof from each employee and director. A copy of this Code and any subsequent updates hereto shall be made available to the public on the Company’s website.

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REDACTED

From: Jim Barker [mailto:[email protected]] Sent: Monday, November 30, 2009 1:32 PM To: Tim Ramey Subject: FW: Diamond Sales Reports Through 11/20/09

 Tim  YoumayormaynotwantthisdatabutIwillletyoudecide.Thisisnotpublicdatabutafriendinsidesentittome.Ifyouuseitpleasekeepyoursource confidential.Thisisaninternaldocumentthatshowsgrosssalesrevenuebycustomerasfollows:  NorthAmericanTopCustomerSalesThrough11/20/09 NorthAmericanRetailDailySalesforEachregionThrough11/20/09  Thefirstfilecontainsthefollowinginformation: x YTDgrosssalesrevenuedataforthetop27customersandentireretailcustomerbaseasanaggregate o ThisisbrokendownbyYTD,QTDandMTDwith%changeversussameperiodpreviousyear x TheFY2010forecastforeachcustomerbrokendownbybrandforyear,quarterandcurrentmonth

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Herearesomehighlights:             

REDACTED





               Thesecondfilesjustgivesthistoyoubydifferentbusinessunitsandregions  Acoupleofquestionstoaskmayinclude:      

REDACTED

 

     Justtryingtobehelpful.Letmeknowifyouneedanythingelse.JMB  JimBarker VicePresidentSales VitaFoodProducts,Inc. 

This email and any attachments thereto may contain private, confidential, and privileged material for the sole use of the intended recipient. Any review, copying, or distribution of this email (or any attachments thereto) by anyone other than the intended recipient is strictly prohibited. If you are not the intended recipient, please contact the sender immediately and permanently delete the original and any copies of this email and any attachments thereto.

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Exhibit F

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REDACTED

From: Jim Barker [mailto:[email protected]] Sent: Monday, November 30, 2009 1:28 PM To: Tim Ramey Subject: FW: Analysis -- Snack Nut Baking Nut and MWPC Categories on Diamond Importance: High Sensitivity: Confidential

Tim, It was good speaking to you today. As a follow-up to our call a few minutes ago, here is updated consumption sales data from Nielsen you can review. Here are some toplines comments by brand and category. These are all pulled from the excel file “Nielsen Exec Team Monthly Updates 10-31-09. For more in depth information down to the customer level, please refer to the other attached files.

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REDACTED

 

    

I would like to keep in touch and if your company allows it, possibly setup some type of consulting arrangement for an agreed upon fee where I can be helpful. Let me know what else I can provide to you for the category, brand or company as you prepare for the earnings call.

Jim Barker Vice President Sales Vita Food Products, Inc. This email and any attachments thereto may contain private, confidential, and privileged material for the sole use of the intended recipient. Any review, copying, or distribution of this email (or any attachments thereto) by anyone other than the intended recipient is strictly prohibited. If you are not the intended recipient, please contact the sender immediately and permanently delete the original and any copies of this email and any attachments thereto.

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