As filed with the Securities and Exchange Commission on May 2, 1995
Registration No. 33-_______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
______________________
DNA PLANT TECHNOLOGY CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 22-2395856
(State or other jusisdiction of (I.R.S. Employer Notification
Incorporation or organization) Number)
6701 San Pablo Avenue
Oakland, California 94608
(510) 547-2395
(Address of principal executive offices) (Zip code)
DNA Plant Technology Corporation 401(k) Savings and Retirement Plan
(Full title of the Plan)
Chris Braunlich
Vice President and Chief Financial Officer
DNA Plant Technology Corporation
6701 San Pablo Avenue
Oakland, California 94608
(510) 547-2395
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
_________________________________
Copies to:
Lynn E. Usdan
Proskauer Rose Goetz & Mendelsohn LLP
1585 Broadway
New York, New York 10036
(212) 969-3000
_________________________________
<PAGE>
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Title of Amount to be Proposed maximum Proposed maximum Amount
securities registered (1) offering price aggregate of
to be per share (2) offering Regist-
registered price ration
fee
______________________________________________________________________________
<S> <C> <C> <C> <C>
Common Stock,
par value $.01
per share 200,000 shares $2.375 $475,000 $163.79
</TABLE>
(1) The maximum number of shares which may be granted under the DNA Plant
Technology Corporation 401(k) Savings and Retirement Plan.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h).
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference.
The following documents filed with the Securities and Exchange Commission
by DNA Plant Technology Corporation, a Delaware corporation (the "Company" or
the "Registrant"), are incorporated herein by reference:
(1) the Company's Annual Report on Form 10-K for the year ended
December 31, 1994; and
(2) the description of the Company's Common Stock, par value $.01
per share, contained in the Company's Registration Statement filed on
Form 8-A pursuant to Section 12 of the Securities Exchange Act of 1934.
All documents subsequently filed by the Company pursuant to Section
13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934, prior to
the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be part thereof from the date of filing such documents. Any
statement in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for the purposes of this
Registration Statement to the extent that a statement contained herein or in
any other subsequently filed document which also is or is deemed to be
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. Interest of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The General Corporation Law of the State of Delaware permits the Company
and its stockholders to limit directors' exposure to liability for certain
breaches of the directors' fiduciary duty, either in a suit on behalf of the
Company or in an action by stockholders of the Company.
The Certificate of Incorporation, as amended, of the Company (the
"Charter") eliminates the liability of directors to stockholders or the
Company for monetary damages arising out of the directors' breach of their
fiduciary duty of care. The Charter also authorizes the Company to indemnify
its directors, officers, incorporators, employees, and agents with respect to
certain costs, expenses, and amounts incurred in connection with an action,
suit, or proceeding by reason of the fact that such person was serving as a
director, officer, incorporator, employee, or agent of the Company. In
addition, the Charter permits the Company to provide additional
indemnification rights to its officers and directors and to indemnify them to
the greatest extent possible under the Delaware General Corporation Law. The
Company has entered into indemnification agreements with each of its officers
and directors and intends to enter into indemnification agreements with each
of its future officers and directors. Pursuant to such indemnification
agreements, the Company has agreed to indemnify its officers and directors
against certain liabilities, including liabilities arising out of the offering
made by this Registration Statement.
The Company maintains a standard form of officers' and directors'
liability insurance policy which provides coverage to the officers and
directors of the Company for certain liabilities, including certain
liabilities which may arise out of this Registration Statement.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Certificate of Designation of the Company's Series A Convertible
Preferred Stock (incorporated by reference to Exhibit 4.1 to the Company's
Registration Statement on Form S-3 (Registration No. 33-73086))
4.2 Form of certificate representing the Company's Series A Convertible
Preferred Stock (incorporated by reference to Exhibit 4.2 to the Company's
Registration Statement on Form S-3 (Registration No. 33-73086))
4.3 Certificate of Designation of the Company's $2.25 Convertible
Exchangeable Preferred Stock (incorporated by reference to Exhibit 4.3 to the
Company's Registration Statement on Form S-2 (Registration No. 33-41178))
4.4 Indenture with respect to the Company's 9% Convertible Subordinated
Debentures, due August 1, 2016 between the Company and The Bank of New York,
as Trustee, including form of Debenture (incorporated by reference to Exhibit
4.4 to the Company's Registration Statement on Form S-2 (Registration No. 33-
41178))
4.5 Form of certificate representing the Common Stock (incorporated by
reference to Exhibit 4.5 to the Company's Registration Statement on Form S-2
(Registration No. 33-41178))
4.6 Form of certificate representing the Company's $2.25 Convertible
Exchangeable Preferred Stock (incorporated by reference to Exhibit 4.6 to the
Company's Registration Statement on Form S-2 (Registration No. 33-41178))
5 Opinion of Proskauer Rose Goetz & Mendelsohn LLP
23.1 Consent of KPMG Peat Marwick L.L.P.
23.2 Consent of Proskauer Rose Goetz & Mendelsohn LLP (included in
Exhibit 5).
24 Powers of Attorney.
Item 9. Undertakings.
(a) The undersigned Registrant 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 material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment therof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement;
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
do not apply if the registration statement is on Form S-3, Form S-8 or
Form F-3, and the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the Registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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 the 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 undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
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 of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant 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 Registrant 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 Act
and will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant 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 Oakland, State of California, on May
1, 1995.
DNA PLANT TECHNOLOGY CORPORATION
By: /s/ Robert Serenbetz
Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
<S> <C> <C>
/s/ ROBERT SERENBETZ Chairman of the Board and May 1, 1995
Robert Serenbetz Chief Executive Officer
(Principal Executive
Officer)
/s/ CHRIS BRAUNLICH Vice President and May 1, 1995
Chris Braunlich Chief Financial
Officer (Principal
Financial Officer
and Principal Accounting
Officer)
/s/ EVELYN BEREZIN* Director May 1, 1995
Evelyn Berezin
/s/ JAMES L. FERGUSON* Director May 1, 1995
James L. Ferguson
/s/ GERALD D. LAUBACH* Director May 1, 1995
Gerald D. Laubach
/s/ DOUGLAS S. LUKE* Director May 1, 1995
Douglas S. Luke
/s/ SOMCHIT SERTTHIN* Director May 1, 1995
Somchit Sertthin
</TABLE>
* By Robert Serenbetz
Attorney-in-Fact
/s/ ROBERT SERENBETZ
Robert Serenbetz
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
The Board of Directors
DNA Plant Technology Corporation:
We consent to the incorporation by reference herein of our report dated March
10, 1995, relating to the consolidated balance sheets of DNA Plant Technology
Corporation and subsidiaries as of December 31, 1994 and 1993, and the related
consolidated statements of operations, stockholders' equity, and cash flows
for each of the years in the three-year period ended December 31, 1994, and
the related schedule, which report appears in the December 31, 1994 annual
report on Form 10-K of DNA Plant Technology Corporation.
KPMG Peat Marwick LLP
San Francisco, California
May 1, 1995
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints Robert Serenbetz and Chris Braunlich, and each
of them, his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, to act, without the other, for him and in his
name, place, and stead, in any and all capacities, to sign a Registration
Statement on Form S-8 of DNA Plant Technology Corporation, and any or all
amendments (including post-effective amendments) thereto, relating to the
registration, under the Securities Act of 1933, as amended, of shares of
Common Stock of the Company to be issued pursuant to the Company's 401(k)
Savings and Retirement Plan and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents 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 full to all intents and
purposes as he might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents, or any of them, their substitute
or substitutes may lawfully do or cause to be done by virtue hereof.
/S/ EVELYN BEREZIN
Evelyn Berezin
March 23, 1995
/S/ JAMES L. FERGUSON
James L. Ferguson
/S/ GERALD D. LAUBACH
Gerald D. Laubach
/S/ DOUGLAS S. LUKE
Douglas S. Luke
/S/ SOMCHIT SERTTHIN
Somchit Sertthin
EXHIBIT 5
May 1, 1995
DNA Plant Technology Corporation
6701 San Pablo Avenue
Oakland, California 94608
Dear Sirs:
We are acting as counsel to DNA Plant Technology Corporation, a Delaware
corporation (the "Company"), in connection with the Registration Statement on
Form S-8 with exhibits thereto (the "Registration Statement") filed by the
Company under the Securities Act of 1933, as amended, and the rules and
regulations thereunder, relating to the registration of 200,000 shares (the
"Shares") of Common Stock, par value $.01 per share, of the Company. The
Shares are to be issued by the Company pursuant to the Company's 401(k)
Savings and Retirement Plan (the "Plan").
As such counsel, we have participated in the preparation of the
Registration Statement and have reviewed the corporate minutes relating to the
issuance of the Shares pursuant to the Plan and have also examined and relied
upon originals or copies, certified or otherwise authenticated to our
satisfaction, of all such corporate records, documents, agreements, and
instruments relating to the Company, and certificates of public officials and
of representatives of the Company, and have made such investigations of law,
and have discussed with representatives of the Company and such other persons
such questions of fact, as we have deemed proper and necessary as a basis for
rendering this opinion.
Based upon, and subject to, the foregoing, we are of the opinion that the
Shares are duly authorized and, upon issuance of the Shares in accordance with
the terms of the Plan and upon compliance with applicable securities laws,
will be, assuming no change in the applicable law or pertinent facts, validly
issued, fully paid, and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement. In giving the foregoing consent, we do not admit that
we are in the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission promulgated thereunder.
Very truly yours,
Prokauer Rose Goetz and Mendelsohn LL
By /s/ Arnold S. Jacobs
