- Current report filing (8-K)
November 28 2011 - 4:30PM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 or 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event
reported): November 28, 2011
DIAMOND FOODS, INC.
(Exact Name of Registrant as Specified in Charter)
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Delaware
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000-51439
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20-2556965
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(State or Other Jurisdiction
of Incorporation)
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(Commission
File Number)
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(IRS Employer
Identification No.)
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600 Montgomery Street, 13
th
Floor
San Francisco, California
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94111-2702
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(Address of Principal Executive Offices)
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(Zip Code)
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Registrants telephone number, including area code: (415) 445-7444
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions:
x
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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¨
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Item 7.01.
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Regulation FD Disclosure
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On
November 28, 2011, Diamond Foods, Inc. (Diamond) announced recent market share data for its brands and provided an update on the previously announced Audit Committee investigation. A copy of the press release is furnished as Exhibit
99.1 to this report.
The information contained in this Item 7.01 and in Exhibit 99.1 to this report shall not be incorporated by
reference into any filing, whether made before or after the date hereof, regardless of any general incorporation language in such filing, unless expressly incorporated by specific reference in such filing. The information in this Item 7.01 and
Exhibit 99.1 hereto shall not be deemed to be filed for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, or otherwise subject to the liabilities of that section or Sections 11 and 12(a)(2) of the Securities
Act of 1933, as amended.
Item 8.01.
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Other Information.
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Investigation and
Related Litigation
On November 1, 2011, Diamond announced that the Audit Committee of the Diamond Board of Directors had decided to
perform an investigation of Diamonds accounting for certain crop payments to walnut growers. The Audit Committee has since retained Gibson, Dunn & Crutcher LLP and KPMG LLP to assist the Audit Committee in the investigation.
Beginning on November 7, 2011, the first of a number of putative securities class action suits was filed in the United States District
Court for the Northern District of California against Diamond and certain of its executive officers. These suits allege that defendants made materially false and misleading statements, or failed to disclose material facts, regarding
Diamonds financial results, operations and prospects, including its accounting for payments to walnut growers and the anticipated timing of closing Diamonds proposed acquisition of the Pringles business (the Pringles
Transaction) from The Procter & Gamble Company (P&G). These suits seek compensatory damages, interest thereon, costs and expenses incurred in such actions, as well as equitable or other relief. Diamond
anticipates that further lawsuits making similar allegations may be filed and that all such purported class actions will be consolidated into a single case. Diamond intends to defend the actions vigorously.
Beginning on November 14, 2011, the first of two purported shareholder derivative actions was filed in the Superior Court for the State of
California, San Francisco County, against certain of Diamonds executive officers and the members of its board of directors. These complaints are based on essentially the same allegations as those in the class actions, and purport to set
forth claims for breach of fiduciary duty, unjust enrichment, abuse of control and gross mismanagement. These suits seek the recovery of unspecified damages allegedly sustained by Diamond, which is named as a nominal defendant, corporate
reforms, the recovery of plaintiffs attorneys fees and other relief. Diamond anticipates that further lawsuits making similar allegations may be filed.
Additional Risk Factors
In addition to the risk factors described under Part I
Item 1A. Risk Factors in Diamonds Annual Report on Form 10-K for the fiscal year ended July 31, 2011 and the risk factors described under Risk Factors in Diamonds registration statement on Form S-4
filed with the Securities and Exchange Commission in conjunction with the Pringles Transaction, which registration statement has not yet become effective, the following factors could adversely impact Diamond:
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The time required or outcome of the Audit Committee investigation of Diamonds accounting for certain crop payments to walnut growers could
adversely affect Diamond. Among other things, the investigation could result in a determination that restatement of Diamonds prior period financial statements is required, or a conclusion that there is a material weakness in Diamonds
internal control over financial reporting, or a determination that its disclosure controls and procedures are not effective. The Audit Committee has made no such determinations or conclusions to date. In addition, the time required or outcome of the
investigation could result in the inability of Diamond to timely file required periodic reports under the Securities Exchange Act of 1934, as amended, which could result in the commencement of NASDAQ delisting proceedings for Diamonds common
stock. Diamond expects to incur substantial costs in connection with the Audit Committee investigation; such costs, and any determination by the Audit Committee that further action is required as a result of the conclusions of the investigation,
could adversely impact Diamond.
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As previously announced, as a result of the Audit Committee investigation, Diamond and P&G have delayed the expected closing of the Pringles
Transaction. The time required to complete the Audit Committee investigation, or the results of the investigation, could adversely impact the closing of the Pringles Transaction.
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Litigation and potential governmental investigations or proceedings arising out of or related to Diamonds accounting or financial reporting, or
any financial restatement by Diamond, could adversely affect Diamonds results of operations and financial condition. See Investigation and Related Litigation above. Diamond could face additional litigation or governmental
investigations with respect to these matters, could incur substantial costs to
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defend any such litigation or investigations, and be required to pay damages or incur additional expenses as a result of the outcome of such litigation or investigations. The unfavorable
resolution of one or more matters could adversely impact Diamond.
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Item 9.01.
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Financial Statements and Exhibits.
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(d) Exhibits.
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Exhibit
Number
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Description
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99.1
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Press Release issued by Diamond Foods, Inc., dated November 28, 2011.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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DIAMOND FOODS, INC.
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Date: November 28, 2011
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By:
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/s/ Steven M. Neil
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Name:
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Steven M. Neil
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Title:
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Executive Vice President, Chief Financial
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and Administrative Officer
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