<PAGE>
Registration No.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
_______________________
DNA PLANT TECHNOLOGY CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 22-395856
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) No.)
6701 San Pablo Avenue
Oakland, California 94608-1239
(510) 547-2395
(Address, including zip code, and telephone number,
including area code of registrant's principal executive offices)
Robert Serenbetz
6701 San Pablo Avenue
Oakland, California 94608-1239
(510) 547-2395
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
___________________________________
Copies to:
Henry O. Smith III, Esq.
Proskauer Rose Goetz & Mendelsohn LLP
1585 Broadway
New York, New York 10036
(212) 969-3000
__________________________________
Approximate date of commencement of proposed sale to public: As soon as
practicable after the Registration Statement becomes effective.
If the only securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box [X]
<PAGE>
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Proposed
Title of each Proposed maximum
class of maximum aggregate Amount of
securities to Amount to be offering price offering registration
be registered registered per unit <F1> price <F1> fee
_____________ ____________ ______________ _________ _____________
<S> <C> <C> <C> <C>
Common Stock,
par value $.01
per share 750,000 shares $1.71875 $1,289,063 $444.50
<FN>
<F1> Based on the average of the high and low prices reported in the NASDAQ
National Market System on June 14, 1995. Estimated solely for the purpose
of calculating the registration fee pursuant to Rule 457.
</FN>
</TABLE>
<PAGE>
<TABLE>
CROSS REFERENCE SHEET
(Pursuant to Item 501(b) of Regulation S-K)
<CAPTION>
Registration Statement Item and Headings Location in Prospectus
________________________________________ ______________________
<C> <S> <S>
1. Forepart of the Registration Statement and Outside Front Cover Page
Outside Front Cover Page of Prospectus of Prospectus
2. Inside Front and Outside Back Cover Pages of Inside Front and Outside
Prospectus . . . . . . . . . . . . . . . Back Cover Pages of
Prospectus
3. Summary Information, Risk Factors, and Ratio
of Earnings to Fixed Charges . . . . . . Risk Factors
4. Use of Proceeds . . . . . . . . . . . . . . Not Applicable
5. Determination of Offering Price . . . . . . Outside Front Cover Page
of Prospectus; Risk
Factors; Underwriting
6. Dilution . . . . . . . . . . . . . . . . . Dilution
7. Selling Security Holders . . . . . . . . . Selling Stockholder
8. Plan of Distribution . . . . . . . . . . . Selling Stockholder
9. Description of Securities to be Registered Not Applicable
10. Interests of Named Experts and Counsel . . Not Applicable
11. Material Changes . . . . . . . . . . . . . Not Applicable
12. Incorporation of Certain Information by Incorporation by
Reference . . . . . . . . . . . . . . . Reference
13. Disclosure of Commission Position on
Indemnification for Securities Act
Liabilities . . . . . . . . . . . . . . Not Applicable
</TABLE>
<PAGE>
SUBJECT TO COMPLETION, DATED JUNE 15, 1995
PROSPECTUS
750,000 Shares of Common Stock
DNA PLANT TECHNOLOGY CORPORATION
_________________________
All of the 750,000 shares of common stock, par value $.01 per share
("Common Stock"), of DNA Plant Technology Corporation, a Delaware corporation
(the "Company"), are being sold by a stockholder of the Company (the "Selling
Stockholder"). The Company will not receive any proceeds from the sale of
shares by the Selling Stockholder. See "Selling Stockholder."
__________________________
See "Risk Factors" for a discussion of certain factors to be considered
by prospective investors.
___________________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
__________________________
No dealer, salesperson, or any other person has been authorized to give any
information or make any representations not contained in this Prospectus and,
if given or made, such information or representations must not be relied upon
as having been authorized by the Company or the Selling Stockholder. This
Prospectus does not constitute an offer of any securities other than those to
which it relates or an offer to sell, or a solicitation of an offer to buy, to
any person in any jurisdiction where such an offer or solicitation would be
unlawful. Neither the delivery of this Prospectus nor any sale made hereunder
shall, under any circumstance, create any implication that the information
contained herein is correct as of any time subsequent to the date hereof.
June 15, 1995
<PAGE>
<TABLE>
TABLE OF CONTENTS
Page
<S> <C>
The Company . . . . . . . . . . . . 2
Available Information . . . . . . . 2
Incorporation by Reference . . . . 3
Risk Factors . . . . . . . . . . . 4
Selling Stockholder . . . . . . . . 9
Legal Opinions . . . . . . . . . . 10
Experts . . . . . . . . . . . . . . 10
</TABLE>
THE COMPANY
DNA Plant Technology Corporation is a leading agribusiness biotechnology
company focused on the development and marketing of premium, fresh and
processed, branded fruits and vegetables developed through advanced breeding,
genetic engineering, and other biotechniques. The Company uses these
technologies to achieve improvements in the taste, texture, product form,
color, and shelf life of produce and to improve production characteristics,
such as disease resistance and production or processing yields. The Company,
through its subsidiary FreshWorld Farms, Inc., is engaged in the production
and marketing of branded, premium fruits and vegetables. It currently is
marketing its first generation of products developed through advanced
biotechnological techniques to supermarkets and institutions. The Company is
developing its second generation products using genetic engineering.
The Company was incorporated in Delaware in 1981 and its principal offices
are located at 6701 San Pablo Avenue, Oakland, California 94608-1239
(telephone number (510) 547-2395).
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") a Registration Statement (of which this Prospectus is a part) on
Form S-3 (the "Registration Statement") under the Securities Act of 1933, as
amended (the "Securities Act"), with respect to the securities offered hereby.
This Prospectus does not contain all of the information set forth in the
Registration Statement, certain portions of which have been omitted as
permitted by the rules and regulations of the Commission. For further
information with respect to the Company and the Common Stock, reference is
hereby made to the Registration Statement, to the documents incorporated by
reference therein, and to the schedules and exhibits thereto.
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports and other information with the Commission.
Such Registration Statement, reports, and other information filed by the
Company can be inspected and copied at the public reference facilities of the
Commission at its principal office at Judiciary Plaza, 450 Fifth Street, N.W.,
Room 1024, Washington, D.C. 20549, and at the Commission's regional offices at
Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661, and at 7 World Trade Center, 13th Floor, New York, New York
10048. Copies of each such document may be obtained at prescribed rates from
the Public Reference Section of the Commission at its principal office at
Judiciary Plaza, 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549.
<PAGE>
INCORPORATION BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated in this Prospectus by reference:
(a) the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1994;
(b) the Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1995;
(c) the Company's Proxy Statement, dated April 7, 1995; and
(d) the description of the Common Stock contained in the Prospectus,
dated January 20, 1994, included in the Company's registration
statement on Form S-3 (Registration Number 33-73086), as filed
pursuant to Rule 424(b) under the Securities Act.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14,
or 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of this offering shall be deemed to be incorporated
by reference in this Prospectus and to be a part hereof from the date of
filing such documents. Any statement contained herein or in a document
incorporated or deemed to be incorporated by reference herein shall be
modified or superseded, for purposes of this Prospectus, to the extent that a
statement contained herein or in any subsequently filed document which 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 Prospectus.
The Company hereby undertakes to provide without charge to each person to
whom a copy of this Prospectus has been delivered, on the written or oral
request of any such person, a copy of any or all of the documents referred to
above which have been or may be incorporated in this Prospectus by reference,
other than exhibits to such documents unless such exhibits are specifically
incorporated by reference into such documents. Such requests should be
directed to DNA Plant Technology Corporation, 6701 San Pablo Avenue, Oakland,
California 94608-1239, Attention: Chief Financial Officer, telephone number
(510) 547-2395.
<PAGE>
RISK FACTORS
The shares being offered hereby are speculative and involve a high degree
of risk. Prospective investors should carefully consider, among other things,
the following factors concerning the business of the Company.
Cash Requirements
As of March 31, 1995, the Company had cash and temporary investments of
$1.1 million. In view of the Company's continuing losses since that date, the
Company will have to generate sufficient funds to meet its cash requirements
through operations, the sale of assets or securities, or other financing
arrangements, or it will be required to curtail certain of its activities.
The Company has announced that it is engaged in discussions with several
parties relating to securing additional capital and is hopeful that it will be
able to successfully conclude negotiations in the near future in order to
obtain sufficient funds for its operating needs.
Historical Losses and Accumulated Deficits
The Company has sustained losses in each year since its incorporation in
1981. It is likely that such losses will continue until the Company's
products are successfully established and profitability is achieved through
increased sales, economies of scale, and reduction in costs, of which there
can be no assurance.
Recent Litigation Affecting the Endless Summer Tomato
The Company is a defendant in a lawsuit brought by Monsanto Company
("Monsanto") in May 1995 in the United States District Court for the District
of Delaware. Monsanto has alleged that the Company is infringing two of
Monsanto's United States patents relating to the use of promoter and gene
marker technology in plants. Monsanto is seeking unspecified damages. The
Company intends to defend this suit vigorously and has filed a counterclaim
seeking to invalidate the Monsanto patents and prove that the Company is not
infringing such patents. The Company is also negotiating with Monsanto to
resolve this dispute.
If the Company does become involved in extended litigation with Monsanto,
the Company may be required to incur substantial litigation expenses, and such
litigation could consume substantial management time, which could have a
material adverse effect on the Company even if it were successful in the
litigation. If the Company is unable to prevail in the litigation, it expects
to market a second generation of its Endless Summer tomato which falls outside
the scope of Monsanto's patents. The marketing of such second generation
Endless Summer tomato may be delayed by regulatory requirements and other
problems frequently encountered in the development and commercialization of a
new product.
Stage of Product Development and Marketing
Marketing of several products developed by the Company is in the
relatively early stages, and there can be no assurance that any of these
products will be successful or will produce significant revenues or profits
for the Company. In addition, a number of the Company's product development
projects are in the early stages, and there can be no assurance that these
projects will be successful or that any resulting products will be well
received or profitable. In particular, although the Company has produced and
sold a limited amount of its branded produce, there can be no assurance that
<PAGE>
it will be able to produce or market such products on a larger scale. The
production, distribution, and sale of branded, premium quality, fresh market
tomatoes and other fruits and vegetables which the Company is currently
marketing or proposes to market in the future involve many variables and
uncertainties, including consumers' willingness to pay higher prices for such
fruits and vegetables and retailers' willingness to carry such fruits and
vegetables. Even if consumer acceptance is achieved for the Company's fresh
fruits and vegetables, the Company's fresh market fruit and vegetable business
will not achieve profitability until the Company increases sales, establishes
economies of scale, and realizes reductions in the unit costs currently being
incurred in certain of its product lines, of which there can be no assurance.
Public Acceptance of Genetically Engineered Products
The Company's second generation products are being developed through
genetic engineering. The commercial success of these products will depend in
part on public acceptance of the cultivation and consumption of genetically
engineered products. There is no assurance that such products will gain
public acceptance, even if such products obtain the required regulatory
approvals.
Agribusiness Risks
Certain of the Company's present and future products may be subject to
various hazards including disease, frost, drought, flood, hail, and other
causes of crop failure. Although the Company contracts with growers in
different regions of the United States, there can be no assurance that these
growers will be able to produce sufficient crops of suitable quality or in
sufficient quantity to satisfy the Company's requirements.
Certain of the Company's present and future products may be affected by
changes in United States government agricultural policy. There can be no
assurance that changes in United States government agricultural policy will
not have a material adverse effect on the Company.
No Assurance of Proprietary Protection
The Company's success will depend, in part, on its ability to obtain
patents, maintain trade secret protection, and conduct its business without
infringing the proprietary rights of others. Although the Company possesses
certain patents and has filed patent applications with respect to certain of
its products and technologies, there can be no assurance that others will not
develop and market competing technologies and products or that the Company
will be able to enforce the patents which it currently possesses or will be
able otherwise to obtain or enforce any patents for which it has filed an
application. The Company also relies upon unpatented proprietary and trade
secret technology. There can be no assurance that others have not developed
or will not independently develop such proprietary technology or otherwise
obtain access to the Company's proprietary technology. The extent to which
the Company in the future may be required or may desire to obtain licenses
with respect to patents obtained by others and the availability and cost of
any such licenses are currently unknown. If the Company does not obtain
necessary licenses, the development, production, use, or sale of the Company's
products could be delayed or prevented. In addition, the Company could incur
substantial costs in defending any patent infringement suits or in asserting
any patent rights, including those granted by third parties. The United
States Patent and Trademark Office could institute interference proceedings
involving the Company in connection with one or more of the Company's patents
<PAGE>
or patent applications, and such proceedings could result in an adverse
decision as to priority of invention. Reexamination proceedings could be
instituted against the Company in connection with one or more of the Company's
patents, and such proceedings could result in an adverse decision as to the
validity or scope of the patents.
Competition
The segments of the agricultural biotechnology industry and industrial
and consumer product industries in which the Company participates are highly
competitive. Competitors include specialized biotechnology firms, as well as
major food and chemical companies, some of which have biotechnology divisions,
and many of which have considerably greater financial, technical, and
marketing resources than the Company. The agricultural biotechnology industry
is undergoing, and is expected to continue to undergo, rapid and significant
technological change, and the Company expects competition to intensify as
technical advances in the field are made and become more widely known.
Governmental Regulation
The present and future activities of the Company are, or may be, subject
to extensive regulation by the United States Food and Drug Administration (the
"FDA"), the United States Department of Agriculture (the "USDA"), the United
States Environmental Protection Agency, and other United States and state
regulatory agencies. In addition, the Company's products may also be subject
to regulation by agencies of foreign countries in which the products are
tested, used, or sold.
The Company's first generation products are currently being marketed.
The Company's second generation tomato has received clearance from the FDA and
from the USDA. The Company's other second generation products may require
regulatory approval or notification. The regulatory process may delay
research, development, production, or marketing and require costly and time
consuming procedures, and there can be no assurance that requisite regulatory
approvals or registration of certain of the Company's products will be granted
on a timely basis. Delays in obtaining, or the failure to obtain, any
necessary regulatory approvals could have a material adverse effect on the
Company's ability to develop, produce, and sell such products.
Product Liability
Certain of the products being marketed and developed by the Company
entail a risk of product liability. While the Company has taken and will
continue to take what it believes are adequate precautions, there can be no
assurance that it will avoid significant product liability exposure. The
Company maintains limited product liability insurance. If the Company seeks
to maintain or expand such coverage in the future, there can be no assurance
that adequate coverage would be available at acceptable costs. The obligation
to pay any product liability claim may have a material adverse effect on the
business or financial condition of the Company.
Key Personnel
The success of the Company will depend, in large part, on its ability to
continue to attract and retain qualified scientific and management personnel.
Competition for such personnel is intense and there can be no assurance that
<PAGE>
the Company will be able to attract and retain such persons. The loss of the
Company's key management or scientific personnel could have a material adverse
effect on the Company.
Shares Available for Future Sale
E. I. du Pont de Nemours and Company ("Du Pont") owns 5,750,000 shares of
Common Stock currently representing approximately 16.8% of the outstanding
shares (after giving effect to the assumed conversion of the Company's Series
A Convertible Preferred Stock, par value $.01 per share (the "Series A
Convertible Preferred Stock"), owned by Du Pont into 2,750,000 shares of
Common Stock). Du Pont has agreed, in general, that prior to March 1996, it
will not sell publicly any of the shares which it owns and that, subsequent to
March 1996 and prior to March 1997, it will not sell publicly more than
1,000,000 shares of Common Stock. The sale by Du Pont of a significant number
of shares of Common Stock may adversely affect the market price of the Common
Stock.
Volatility of Common Stock Price
There has been significant volatility in the market prices for publicly
traded shares of biotechnology companies, including the Company. There can be
no assurance that the price of the Common Stock will remain at or exceed
current levels. Factors such as announcements of technical or product
developments by the Company or its competitors, governmental regulation, or
patent or proprietary rights developments may have a significant impact on the
market price of the Common Stock.
Anti-Takeover Effects of the Special Conversion Rights and the Delaware
Business Combination Statute
Upon the occurrence of a business combination or the acquisition by a
person of more than 50% of the outstanding Common Stock other than pursuant to
a business combination or a transaction in which such person acquires from the
Company at least one-half of the Common Stock owned by him, holders of the
Company's $2.25 Convertible Exchangeable Preferred Stock, par value $.01 per
share (the "$2.25 Convertible Preferred Stock"), or the debentures for which
such shares are exchangeable, will have special conversion rights for a 45-day
period, subject to cash redemption at the option of the Company. Such special
conversion rights may, under certain circumstances, render more difficult or
tend to discourage attempts to acquire the Company. In addition, Section 203
of the Delaware General Corporation Law which prohibits for a period of time
certain "business combinations" between interested stockholders and
corporations (including the Company) which are subject to the statute, could
prohibit or delay the consummation of mergers or other takeover or change in
control attempts with respect to the Company. Such special conversion rights
and provisions of Delaware law may have an adverse effect on the market price
of the Common Stock and may discourage bids at prices above the then existing
market prices for the Company's securities.
Dividends on Common Stock Unlikely
The Company does not, in the foreseeable future, anticipate paying any
dividends on the Common Stock. The terms of the $2.25 Convertible Preferred
Stock restrict the payment of cash dividends on the Common Stock. In
addition, payment of dividends on the $2.25 Convertible Preferred Stock will
reduce the amount of funds which might otherwise be available for the payment
of dividends on the Common Stock, and any payment of dividends on the Common
Stock must also be paid on the Series A Convertible Preferred Stock.
<PAGE>
SELLING STOCKHOLDER
The following table sets forth certain information as of the date of this
Prospectus with respect to the Selling Stockholder. All of the shares to be
sold by the Selling Stockholder represent shares acquired by it from the
Company in a private transaction. The Company will not receive any of the
proceeds from the sale of such shares. Beneficial ownership after the
offering will depend on the number of shares sold by the Selling Stockholder.
<TABLE>
<CAPTION>
Percentage of
Number of Shares Outstanding Shares Number
Owned Prior to Owned Prior To of Shares
Selling Stockholder Offering (1) Offering Offered
___________________ ________________ __________________ _________
<S> <C> <C> <C>
GFL Advantage Fund Limited 750,000 2.4% 750,000
c/o CITCO
Kaya Flamboyan 9
Curacao Netherlands Antilles
</TABLE>
The sale of the shares by the Selling Stockholder may be effected from
time to time in transactions (which may include block transactions by or for
the account of the Selling Stockholder) in the over-the-counter market or in
negotiated transactions, through the writing of options on such shares, a
combination of such methods of sale, or otherwise. Sales may be made at fixed
prices which may be changed, at market prices prevailing at the time of sale,
or at negotiated prices.
The Selling Stockholder may effect such transactions by selling their
shares directly to purchasers, through broker-dealers acting as agents for the
Selling Stockholder, or to broker-dealers who may purchase shares as
principals and thereafter sell the shares from time to time in the over-the-
counter market, in negotiated transactions, or otherwise. Such broker-
dealers, if any, may receive compensation in the form of discounts,
concessions, or commissions from the Selling Stockholder and/or the purchasers
for whom such broker-dealers may act as agents or to whom they may sell as
principals or both (which compensation as to a particular broker-dealer may be
in excess of customary commissions).
The Selling Stockholder and broker-dealers, if any, acting in connection
with such sale might be deemed to be "underwriters" within the meaning of
Section 2(11) of the Securities Act and any commission received by them and
any profit on the resale of such shares might be deemed to be underwriting
discounts and commissions under the Securities Act.
<PAGE>
LEGAL OPINION
The validity of the shares of Common Stock offered hereby will be passed
upon for the Company by Proskauer Rose Goetz & Mendelsohn LLP, New York, New
York.
EXPERTS
The financial statements of DNA Plant Technology Corporation as of
December 31, 1994 and 1993, and for each of the years in the three year period
ended December 31, 1994, have been incorporated by reference herein in
reliance upon the report of KPMG Peat Marwick LLP, independent certified
accountants, incorporated by reference herein, and upon the authority of said
firm as experts in accounting and auditing.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
An estimate of the fees and expenses of issuance and distribution (other
than discounts and commissions) of the Common Stock offered hereby (all of
which will be paid by the Company as follows:
<TABLE>
<S> <C>
SEC registration fee . . . . . . . . . . . $444.50
NASD registration fee . . . . . . . . . . $15,000.00
Legal fees and expenses . . . . . . . . . $8,900.00
Accounting fees and expenses . . . . . . . $2,800.00
Miscellaneous expenses . . . . . . . . . $1,000.00
__________
Total . . . . . . . . . . . . . . . $28,144.50
</TABLE>
Item 15. 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 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.
<PAGE>
Item 16. Exhibits and Financial Statement Schedules
Exhibit No. Exhibit Description
5 -- Opinion of Proskauer Rose Goetz & Mendelsohn LLP regarding
legality of securities
23.1 -- Consent of KPMG Peat Marwick LLP
23.2 -- Consent of Proskauer Rose Goetz & Mendelsohn LLP (included
in the opinion filed as Exhibit 5)
24 -- Powers of Attorney (included on page II-4)
Item 17. Undertakings
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 prospectus required by section 10(a)(3) of
the Securities Act of 1933;
(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 thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in 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 registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section 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 section 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 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.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers, and controlling persons of the
registrant pursuant to the provisions described in Item 15 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
Securities Act and is, therefore, unenforceable. In the event that a claim
<PAGE>
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 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.
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 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of New York, State of New York, on
June 15, 1995.
DNA PLANT TECHNOLOGY CORPORATION
By: /S/ ROBERT SERENBETZ
Robert Serenbetz
Chairman of the Board and
Chief Executive Officer
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-3 of DNA Plant Technology Corporation, and any or all
amendments (including post-effective amendments) thereto, relating to the
offering of shares of its Common Stock, 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.
Pursuant to the requirements of the Securities Act of 1933, 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 June 15, 1995
Robert Serenbetz Board and Chief
Executive Officer
(Principal
Executive Officer)
/S/ CHRIS BRAUNLICH Chief Financial June 15, 1995
Chris Braunlich Officer and
Treasurer
(Principal
Financial Officer
and Principal
Accounting Officer
/S/ EVELYN BEREZIN Director June 15, 1995
Evenlyn Berezin
/S/ JAMES L. FERGUSON Director June 15, 1995
James L. Ferguson
/S/ GERALD D. LAUBACH Director June 15, 1995
Gerald D. Laubach
/S/ DOUGLAS S. LUKE Director June 15, 1995
Douglas S. Luke
</TABLE>
EXHIBIT 5
June 15, 1995
DNA Plant Technology Corporation
6701 San Pablo Avenue
Oakland, California 94608-1239
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-3 with exhibits thereto (the "Registration Statement") filed by the
Company under the Securities Act of 1933 (the "Act"), relating to the
registration of 750,000 shares (the "Shares") of Common Stock, par value $.01
per share, of the Company.
As such counsel, we have participated in the preparation of the
Registration Statement and have reviewed the corporate proceedings in
connection with the issuance of the Shares. We 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
the rendering of this opinion.
Based upon, and subject to, the foregoing, we are of the opinion that the
Shares are duly authorized, 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 Act, or the rules and regulations of the Securities and Exchange
Commission promulgated thereunder.
Very truly yours,
/S/ Proskauer Rose Goetz & Mendelsohn LLP<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTS
The Board of Directors
DNA Plant Technology Corporation
We consent to incorporation by reference in the registration statement on
Form S-3 of our report dated March 10, 1995, related to the consolidated
balance sheets of DNA Plant Technology Corporation 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, which report appears in the December 31, 1994 annual report
on Form 10-K of DNA Plant Technology Corporation and to the reference of our
firm under the heading "Experts" in the prospectus.
KPMG PEAT MARWICK LLP
San Francisco, California
June 14, 1995
