<PAGE>
As filed with the Securities and Exchange Commission on April 28, 2000.
Registration No. 333-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BIONOVA HOLDING CORPORATION
(Exact name of Registrant as specified in its charter)
DELAWARE 75-2632242
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
6701 SAN PABLO AVENUE
OAKLAND, CALIFORNIA 94608
(Address of Principal Executive Offices) (Zip Code)
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BIONOVA HOLDING CORPORATION
1998 LONG-TERM INCENTIVE PLAN
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ARTHUR H. FINNEL
6701 SAN PABLO AVENUE
OAKLAND, CALIFORNIA 94608
(Name and address of agent for service)
(510) 547-2395
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==================================================================================================================================
Title of securities to be Amount to be Proposed maximum offering Proposed maximum Amount of
registered registered(1) price per share(2) aggregate offering price(2) registration fee
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock par value 2,000,000 $1.1875 $2,375,000 $627
$.01 per share.............. shares
==================================================================================================================================
</TABLE>
(1) Pursuant to Rule 416, shares issuable upon any stock split, stock
dividend or similar transaction with respect to these shares are also
being registered hereunder.
(2) Estimated pursuant to Rules 457(h) solely for purposes of computing the
registration fee.
===============================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
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* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance
with Rule 428 under the Securities Act of 1933 and the Note to Part I
of Form S-8.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents, which Bionova Holding Corporation (formerly
known as DNAP Holding Corporation) (the "Company") has filed with the
Commission pursuant to the Securities Act or the Securities Exchange Act of
1934, as amended (the "Exchange Act"), are incorporated in this Registration
Statement by reference and shall be deemed to be a part hereof:
(i) The Company's Annual Report on Form 10-K for the year ended
December 31, 1999 as filed with the Commission on March 23,
2000, containing the consolidated financial statements of the
Company and its subsidiaries and certain supplementary data
for the fiscal year ended December 31, 1999, together with the
report thereon of PricewaterhouseCoopers LLP;
(ii) All other reports filed by the Company pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 since
December 31, 1999; and
(iii) The description of the Common Stock of the Company contained
in the Company's Amendment No. 1 to Registration Statement on
Form S-3 (Commission File Number 333-76759) as filed with the
Commission on December 23, 1999, as may be amended, modified
or superseded by any report or amendment filed with the
Commission for the purpose of updating such description.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the
date of this Registration Statement and prior to the filing of a
post-effective amendment to the Registration Statement that indicates that
all securities offered hereby have been sold or that deregisters all
securities then remaining unsold, shall be deemed to be incorporated in this
Registration Statement by reference and to be a part hereof from the date of
filing of such documents.
Any statement contained in this Registration Statement, in an
amendment hereto or in a document incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein, in any
subsequently filed amendment to this Registration Statement, or in any
document that also is incorporated by reference herein modifies or supersedes
such statement. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
DELAWARE GENERAL CORPORATION LAW
Section 145(a) of the Delaware General Corporation Law (the "DGCL")
provides that a corporation may indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that he is or was a director, officer, employee or agent
of the corporation, or is or was serving at the request of the corporation as
a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including
attorney's fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, that such person had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act
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<PAGE>
in good faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his
conduct was unlawful.
Section 145(b) of the DGCL provides that a corporation may indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that he
is or was a director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust
or other enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of
such action or suit if he acted in good faith and in a manner he reasonably
believed to be in, or not opposed to, the best interests of the corporation
and except that no indemnification shall be made in respect of any claim,
issue or matter as to which such person shall have been adjudged to be liable
to the corporation unless and only to the extent that the Court of Chancery
or the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled
to indemnity for such expenses which the Court of Chancery or such other
court shall deem proper.
Section 145(c) of the DGCL provides that to the extent that a
director, officer, employee or agent of a corporation has been successful on
the merits or otherwise in defense of any action, suit or proceeding referred
to in subsections (a) and (b) of Section 145, or in defense of any claim,
issue or matter therein, he shall be indemnified against expenses (including
attorney's fees) actually and reasonably incurred by him in connection
therewith.
Section 145(d) of the DGCL provides that any indemnification under
subsections (a) and (b) of Section 145 (unless ordered by a court) shall be
made by the corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee or
agent is proper in the circumstances because he has met the applicable
standard of conduct set forth in subsections (a) and (b) of Section 145. Such
determination shall be made (1) by a majority vote of the directors who are
not parties to such action, suit or proceeding, even though less than a
quorum, or (2) if there are no such directors, or if such directors so
direct, by independent legal counsel in a written opinion, or (3) by the
stockholders.
Section 145(e) of the DGCL provides that expenses (including
attorney's fees) incurred by an officer or director in defending any civil,
criminal, administrative or investigative action, suit or proceeding may be
paid by the corporation in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf of such
director or officer to repay such amount if it shall ultimately be determined
chat he is not entitled to be indemnified by the corporation as authorized in
Section 145. Such expenses (including attorneys' fees) incurred by other
employees and agents may be so paid upon such terms and conditions, if any,
as the board of directors deems appropriate.
CERTIFICATE OF INCORPORATION
The Certificate of Incorporation of the Company, as amended,
provides that no director of the Company shall be personally liable to the
Company or any of its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Company or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for
any transaction from which the director derived any improper personal
benefit. Any repeal or modification of such provision of the Restated
Certificate of Incorporation by the stockholders of the Company shall not
adversely affect any right or protection of a director of the Company with
respect to events occurring prior to the time of such repeal or modification.
BYLAWS
The Bylaws of the Company, as amended, provide that the Company
shall indemnify any person who was or is a party or is threatened to be made
a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an
action by or in the right of the Company), by reason of the fact that such
person is or was a director, officer, employee or agent of the Company or is
or was serving or has agreed to serve at the request of the Company as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by such person or on such person's behalf in
connection with such action or proceeding, if such person acted in good faith
and in a manner such person reasonably believed to be in or not opposed to
the best interests of the Company, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his or her conduct was
unlawful. The termination of any action, suit or proceeding by judgment,
order,
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<PAGE>
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not meet the
standards of conduct set forth in the Bylaws.
The Bylaws further provide that the Company shall indemnify any
director or officer who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of
the Company to procure a judgment in its favor by reason of the fact that
such person is or was a director, officer, employee or agent of the Company,
or is or was serving at the request of the Company as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust
or other enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection with the defense or
settlement of such action or suit and any appeal therefrom, if such person
acted in good faith and in a manner such person reasonably believed to be in
or not opposed to the best interests of the Company, except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Company unless
and only to the extent that the Court of Chancery of Delaware or the court in
which such action or suit was brought shall determine upon application that,
despite the adjudication of such liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such costs, charges and expenses which the Court of Chancery or
such other court shall deem proper.
Notwithstanding such provisions to the contrary, to the extent that
a director, officer, employee or agent of the Company has been successful on
the merits or otherwise in defense of any action, suit or proceeding or in
the defense of any claim, issue or matter therein, such person shall be
indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection therewith.
The indemnification and advancement of expenses provided by or
granted pursuant to the Bylaws shall not be deemed exclusive of any other
rights to which a person seeking indemnification may be entitled under any
law, agreement, vote of stockholders or disinterested directors or otherwise,
both as to action in his official capacity and to action in another capacity
while holding office.
The Bylaws further provide that the Company may purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the Company or is or was serving at the request of the
Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against any liability
asserted against such person and incurred by such person in any such
capacity, or arising out of such person's status as such, whether or not the
Company would have the power to indemnify such person against such liability
under the applicable provisions of the DGCL.
The foregoing summaries are necessarily subject to the complete text
of the statute, certificate of incorporation and bylaws referred to above and
are qualified in their entirety by reference thereto.
INSURANCE
The Company maintains a directors' and officers' liability insurance
policy insuring its directors and officers against certain liabilities and
expenses incurred by them in their capacities as such and insuring the
Company, under certain circumstances, in the event that indemnification
payments are made by the company to such directors and officers.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DOCUMENT DESCRIPTION
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<S> <C>
4.1 Bionova Holding Corporation 1998 Long-Term Incentive Plan
(filed as an exhibit to the Company's Proxy Statement for the
annual meeting of stockholders held on May 28, 1998 and
incorporated herein by reference.)
5.1 Opinion of Thompson & Knight L.L.P.
23.1 Consent of Thompson & Knight L.L.P. (included in the opinion
filed as Exhibit 5.1 to this Registration Statement).
23.2 Consent of PricewaterhouseCoopers LLP, independent
accountants.
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<PAGE>
24 Powers of Attorney (included on the signature page of this
Registration Statement).
</TABLE>
ITEM 9. UNDERTAKINGS.
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of this Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this
Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in this Registration Statement or any material change in the
information set forth in this Registration Statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the Company pursuant to Section 13 or Section 15(d) of
the Exchange Act that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The Company hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Company's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise,
the Company has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Company of expenses incurred or paid by a director, officer or controlling
person of the Company in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Company will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Bionova
Holding Corporation certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Dallas, State of Texas, on April 25, 2000.
BIONOVA HOLDING CORPORATION
By: /s/ Bernardo Jimenez
-------------------------------------------
Bernardo Jimenez
Chief Executive Officer and Chairman of the
Board (Principal Executive Officer)
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned
directors and officers of Bionova Holding Corporation, a Delaware
corporation, which is filing a Registration Statement on Form S-8 with the
Securities and Exchange Commission under the provisions of the Securities Act
of 1933 hereby constitutes and appoints Bernardo Jimenez and Arthur H.
Finnel, and each of them, his true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for him and in his name,
place and stead, and in any and all capacities, to sign such Registration
Statement and any or all amendments thereto and all other documents in
connection therewith to be filed with the Securities and Exchange Commission,
it being understood that said attorneys-in-fact and agents, and each of them,
shall have full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully
to all intents and purposes as he might or could do in person and that each
of the undersigned hereby ratifies and confirms all that said attorneys-in-fact
as agents or any of them, or their substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons
in the capacities on April 25, 2000.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ BERNARDO JIMENEZ Chief Executive Officer April 25, 2000
- ---------------------------------------- and Chairman of the Board
Bernardo Jimenez (Principal Executive Officer)
/s/ ARTHUR H. FINNEL Chief Financial Officer April 25, 2000
- ---------------------------------------- (Principal Financial
Arthur H. Finnel and Accounting Officer)
/s/ EVELYN BEREZIN Director April 25, 2000
- ----------------------------------------
Evelyn Berezin
Director April __, 2000
- ----------------------------------------
Peter Davis
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<PAGE>
/s/ CARLOS HERRERA Director April 25, 2000
- ----------------------------------------
Carlos Herrera
/s/ EUGENIO NAJERA Director April 25, 2000
- ----------------------------------------
Eugenio Najera
/s/ GERALD LAUBACH Director April 25, 2000
- ----------------------------------------
Gerald Laubach
/s/ ALEJANDRO PEREZ Director April 25, 2000
- ----------------------------------------
Alejandro Perez
/s/ ELI SHLIFER Director April 25, 2000
- ----------------------------------------
Eli Shlifer
Director April __, 2000
- ----------------------------------------
Christopher Somerville
</TABLE>
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<PAGE>
Exhibit 5.1
April 26, 2000
Bionova Holding Corporation
6701 San Pablo Avenue
Oakland, California 94608
Gentlemen and Ladies:
We have acted as counsel for Bionova Holding Corporation, a Delaware corporation
(the "Company"), in connection with the registration under the Securities Act of
1933, as amended (the "Securities Act"), of 2,000,000 shares (the "Shares") of
Common Stock, $.01 par value per share, of the Company for issuance pursuant to
the Bionova Holding Corporation 1998 Long-Term Incentive Plan (the "Plan").
In connection with the foregoing, we have examined the originals or copies,
certified or otherwise authenticated to our satisfaction, of such corporate
records of the Company, agreements and other instruments, certificates of public
officials and of officers of the Company, and other instruments and documents as
we have deemed necessary to require as a basis for the opinion hereinafter
expressed. We have also participated in the preparation of the Company's
Registration Statement on Form S-8 (the "Registration Statement") to be filed
with the Securities and Exchange Commission relating to registration of the
Shares under the Securities Act.
On the basis of the foregoing, it is our opinion the Shares have been duly
authorized by the Company and, when issued in accordance with the terms of the
Plan, will be legally issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to all references to us in the Registration
Statement. In giving this consent, we do not thereby admit that we come within
the category of persons whose consent is required under Section 7 of the
Securities Act or the rules and regulations of the Securities and Exchange
Commission thereunder.
Respectfully submitted,
THOMPSON & KNIGHT L.L.P.
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 14, 2000 relating to the
financial statements of Bionova Holding Corporation, which appears in Bionova
Holding Corporation's Annual Report on Form 10-K for the year ended December 31,
1999.
PricewaterhouseCoopers LLP
San Diego, California
April 26, 2000
