ROBERT KACZAK, On Behalf of Himself and All

Others Similarly Situated,

Plaintiff,

vs.

EMPRESAS LA MODERNA, S.A. de C.V., DNAP HOLDING

CORPORATION, DNA PLANT TECHNOLOGY CORPORATION,

EVELYN BEREZIN, JAMES L. FERGUSON, CARLOS HERRERA,

BERNARDO JIMENEZ, GERALD D. LAUBACH, DOUGLAS S.

LUKE and ROBERT SERENBETZ,

Defendants.

___________________________________

No. C-99-0467-FMS

CLASS ACTION

Plaintiff, on behalf of himself and all others similarly situated, alleges as follows:

NATURE OF THE ACTION

1. Plaintiff brings this action on behalf of himself and a proposed class initially defined as the holders of shares of $2.25 Convertible Exchangeable Preferred Stock ("Preferred Stock") of defendant DNA Plant Technology Corporation ("DNAP") whose stock was exchanged for DNAP Holding Corporation ("DHC") common stock, as a result of the reverse triangular merger in which DNAP became a wholly owned subsidiary of DHC ("Merger").

2. In the Merger, all DNAP Preferred Stock and common stock was converted to DHC common stock. The DNAP common stockholders (but not the holders of Preferred Stock) were allowed to vote on the Merger. In connection with the Merger, DHC (then known as Bionova U.S. Inc.) filed, with the United States Securities and Exchange Commission, a registration statement dated August 13, 1996, for the offering of DHC common stock represented by the contemplated exchange of DNAP stock ("Registration Statement"). The Registration Statement incorporated a combined DNAP Proxy Statement and DHC Prospectus ("Proxy Statement") that was disseminated to DNAP's stockholders in connection with the Merger.

3. The Registration Statement and Proxy Statement were misleading, because they contained material misrepresentations of fact and omitted material facts required to be disclosed.

JURISDICTION AND VENUE

4. Plaintiff asserts claims under the Securities Act of 1933, 15 U.S.C. §§77a, et seq. and the Securities Exchange Act of 1934, 15 U.S.C. §§78a, et seq. This Court has jurisdiction over these claims under 15 U.S.C. §§77v and 78aa.

5. (a) Venue is proper under 28 U.S.C. §1391(b). Defendant DNA and its parent, defendant DHC, have their corporate headquarters and principal place of business in this District. Furthermore, the acts alleged herein occurred in substantial part in this District.

(b) Assignment of this action to the Oakland division is appropriate as a substantial part of the events or omissions identified herein occurred in Alameda County.

THE PARTIES

Plaintiff

6. Plaintiff Robert Kaczak, Custodian, held DNAP Preferred Stock that was exchanged for DHC common stock as a result of the Merger, as detailed in the attached certification.

Defendants

7. Defendant Empresas La Moderna, S.A. de C.V. ("ELM") is a company organized under the laws of the United Mexican States. At all relevant times, it was the leading producer and distributor of cigarettes in Mexico, and the leading vegetable seed company in the world.

8. Defendant DNAP Holding Corporation ("DHC") is a Delaware corporation whose principal place of business is in Oakland, California and this District. DHC is a holding company affiliated with ELM, and is a subsidiary of Bionova S.A. de C.V. ("Bionova"). Immediately before the Merger, DHC was known as Bionova U.S. Inc.

9. Defendant DNA Plant Technology Corporation ("DNAP") is a Delaware corporation whose principal place of business is in Oakland, California and this District. DNAP seeks to improve produce through advanced breeding, genetic engineering, and other techniques.

10. Defendant Evelyn Berezin ("Berezin") was a director of DNAP at the time of the Merger, and became a director of DHC as a result of the Merger. With Berezin's consent, the Registration Statement named her as a person about to become a director of DHC.

11. Defendant James L. Ferguson ("Ferguson") was a director of DNAP at the time of the Merger.

12. Defendant Carlos Herrera ("Herrera") was Chairman of the Board, Chief Executive Officer, and a director of DHC at the time of the Merger, and signed the Registration Statement. He was also the Managing Director and Chief Executive Officer of DHC's parent, Bionova.

13. Defendant Bernardo Jimenez ("Jimenez") was the Chief Operating Officer of the agrobiotechnology division of ELM, and became Chairman of the Board of DHC as a result of the Merger. With Jimenez's consent, the Registration Statement named him as a person about to become a director of DHC.

14. Defendant Gerald D. Laubach ("Laubach") was a director of DNAP at the time of the Merger, and became a director of DHC as a result of the Merger. With Laubach's consent, the Registration Statement named him as a person about to become a director of DHC.

15. Defendant Douglas S. Luke ("Luke") was a director of DNAP at the time of the Merger, and became a director of DHC as a result of the Merger. With Luke's consent, the Registration Statement named him as a person about to become a director of DHC.

16. Defendant Robert Serenbetz ("Serenbetz") was Chairman of the Board, Chief Executive Officer, and President of DNAP at the time of the Merger, and became the Chief Operating Officer and a director of DHC as a result of the Merger. With Serenbetz's consent, the Registration Statement named him as a person about to become a director of DHC.

CLASS ACTION ALLEGATIONS

17. Plaintiff brings this action on behalf of a proposed class initially defined as the holders of DNAP Preferred Stock ("Preferred Stockholders") whose stock was exchanged for DHC common stock as a result of the Merger (the "Class"). This class excludes defendants and their officers and directors, members of their immediate families, and their legal representatives, heirs, successors or assigns, and any entity in which a defendant has a controlling interest.

18. This action has been properly brought and may be maintained as a class action under Rules 23(a)(1)-(4), 23(b)(1), (2) or (3), of the Federal Rules of Civil Procedure.

19. As required by Rule 23(a)(1), members of the Class are so numerous that their individual joinder herein is impracticable. At the time of the Merger, there were more than 1.3 million shares of DNAP Preferred Stock outstanding, held by hundreds of people. The precise number of Class members and their identities are unknown to plaintiff. Class members may be notified of the pendency of this action by mail, supplemented (if deemed necessary or appropriate by the Court) by published notice.

20. As required by Rule 23(a)(2), common questions of law and fact exist as to all members of the Class. Furthermore, these questions predominate over the questions affecting only individual Class members, as required for maintenance of a class action under Rule 23(b)(3). These common legal and factual questions include:

(a) Whether the Registration Statement and the Proxy Statement contained material misrepresentations of fact or omitted material facts required to be disclosed;

(b) Whether defendants violated §§11, 12(a)(2), and 15 of the Securities Act of 1933;

(c) Whether defendants violated §§10(b), 14(a) and 20 of the Securities Exchange Act of 1934 and Rules 10b-5 and 14a-9 thereunder;

(d) Whether the Class is entitled to equitable and/or monetary relief, and if so, the form and amount of such relief.

21. As required by Rule 23(a)(3), plaintiff's claims are typical of those of the Class, because, as did all other class members, plaintiff held DNAP Preferred Stock that was converted to DHC common stock as a result of the Merger.

22. Plaintiff has no interests antagonistic to those of the Class, and has retained counsel competent and experienced in complex class action litigation to prosecute this action. Plaintiff and his counsel will fairly and adequately protect the interests of the Class, as required by Rule 23(a)(4).

23. As required for maintenance of a class action under Rule 23(b)(3), the class action device is superior to other available means for the fair and efficient adjudication of this dispute. The damages suffered by individual Class members do not justify the burden and expense of individual litigation of the complex claims asserted here. Thus, it would be virtually impossible for Class members to obtain, on an individual basis, effective redress for the wrongs done to them. Furthermore, even if the Class members themselves could afford individual litigation, the court system could not. Individual litigation would increase the delay and expense to all parties and the court system presented by the complex issues of this action. By contrast, the class action device presents far fewer management difficulties, and provides the benefits of single adjudication, economy of scale, and comprehensive supervision by a single court.

24. In the alternative, this action may be maintained as a class action under Rule 23(b)(1) and/or 23(b)(2) because:

(a) the prosecution of separate actions by individual Class members would create a risk of inconsistent or varying adjudications with respect to individual Class members that would establish incompatible standards of conduct for defendants;

(b) the prosecution of separate actions by individual Class members would create a risk of adjudications with respect to them which would, as a practical matter, be dispositive of the interests of other Class members not parties to the adjudications, or substantially impair or impede their ability to protect their interests; and

(c) defendants have acted or refused to act on grounds generally applicable to the Class, thereby making appropriate final injunctive relief with respect to the members of the Class as a whole.

SUBSTANTIVE ALLEGATIONS

25. DNAP had lost substantial sums each year since its incorporation in 1981. Throughout its history, DNAP had financed its operations primarily through public and private offerings of common and preferred stock, including an offering of the Preferred Stock in 1991 which raised $34.5 million.

26. Prior to the Merger, DNAP held certain intellectual property rights which it acquired through research and development activity funded by public and private offerings of common and preferred stock.

27. Because DNAP continued to lose substantial sums following its 1991 sale of Preferred Stock, by early 1994 DNAP was searching for a merger partner.

28. Beginning in May 1995, ELM and DNAP held exploratory discussions at DNAP's offices located in California and in this District, and elsewhere, relating to the merits of a potential strategic combination. On July 12, 1995, ELM and DNAP entered into a confidentiality agreement to permit the exchange of confidential information between the companies.

29. In October 1995, as its financial condition worsened, DNAP stopped paying dividends to its Preferred Stockholders.

30. By December 1995, DNAP's management concluded that DNAP would not be able to fund its existing operations during 1996 without significant additional new capital.

31. If DNAP was forced into liquidation, the Preferred Stockholders were entitled to receive $25 per share prior to any distribution to the common stockholders. Because the aggregate value of the Preferred Stockholders' "Liquidation Preference" exceeded the market capitalization of DNAP, the Preferred Stockholders would have received substantially all of the proceeds of a liquidation while the common stockholders would have received nothing.

32. Each member of DNAP's board of directors owned substantial amounts of DNAP common stock but no Preferred Stock.

33. The Preferred Stockholders also enjoyed "Special Conversion Rights" which entitled them to receive $25 in cash or marketable securities per share of Preferred Stock if DNAP merged, consolidated, or sold all or substantially all of its assets and the Preferred Stock was no longer traded on a national exchange. However, under certain circumstances, the Preferred Stockholders' Special Conversion Rights would not be triggered if the only consideration DNAP's common stockholders received in the transaction was "Marketable Stock," which was defined as the stock of any corporation that is the successor to all or substantially all of the business or assets of DNAP, with the further requirement that the Marketable Stock was listed or approved for quotation on a national stock exchange or national market system.

34. Unless DNAP's board of directors was able to obtain a substantial infusion of cash without causing DNAP to undergo a corporate change triggering the Preferred Shareholders' Special Conversion Rights, it was likely that the DNAP directors' common stock would become worthless, and that they would lose their positions, compensation, benefits and the prestige they obtained thereby.

35. On January 15, 1996, a special meeting of the board of directors of DNAP was held to review drafts of several agreements between ELM and DNAP, including a Merger Agreement, a Loan Agreement and a Long Term Research Agreement.

36. Under the Long Term Research Agreement, ELM agreed that DNAP would be paid $30 million over a ten-year period to finance its research. Intellectual property developed by DNAP would belong to ELM. ELM reserved the right to decide which research projects DNAP would undertake, to oversee each project, including reasonable access to the DNAP employees and facilities being used in the project, and the right to terminate any project at any time for any reason.

37. The draft Merger Agreement provided that, subject to a majority vote of DNAP common stockholders only, Bionova Acquisition, Inc., a newly created subsidiary of Bionova U.S., would be merged with and into DNAP, which would continue as the surviving corporation. DNAP's common stock and Preferred Stock would be converted into common stock of Bionova U.S., which would change its name to DHC. When the Merger was complete, DNAP would be a wholly owned subsidiary of DHC; DNAP's former stockholders, as a single group, would own 30% of DHC; and Bionova, the parent of Bionova U.S. and a subsidiary of ELM, would own the remaining 70% of DHC.

38. Pursuant to the Loan Agreement, Bionova U.S. would loan $5 million to DNAP immediately, and an additional $5 million on July 1, 1996. As security for this loan, DNAP assigned to Bionova U.S. all of DNAP's rights, title and interest in patents relating to DNAP's Transwitch gene suppression technology (the "Transwitch Patents"). To terminate the Merger Agreement, DNAP was required to repay ELM its $10 million loan with interest or forfeit all rights to the Transwitch Patents. Assignment of the Transwitch Patents to ELM effectively "locked up" DNAP's most valuable assets.

39. In the event that the Merger was consummated, ELM agreed to contribute capital in an amount equal to the then-outstanding balance of the Bionova U.S. loans. This provision would convert the $10 million loan into a capital contribution, thereby forgiving DNAP's indebtedness.

40. The Merger Agreement contained a "no-shop" clause which precluded DNAP from soliciting or engaging in discussions or negotiations concerning any merger, consolidation, sale of assets, tender offer, sale of shares of capital stock, or similar transaction, with anyone other than ELM.

41. The Merger and Governance Agreement entered into by ELM, Bionova U.S. and DNAP further provided that:

(a) DNAP directors Serenbetz, Laubach, Berezin and Luke would become "independent directors" of DHC and would receive certain remuneration therefor;

(b) Serenbetz, formerly the Chief Executive Officer of DNAP, would become the Chief Operating Officer of DHC; and

(c) DHC would treble the amount of indemnification coverage then provided to DNAP directors Serenbetz, Laubach, Berezin and Luke, thereby increasing the indemnity coverage from $5 million to $15 million, against all financial responsibility resulting from acts done in their capacities as DNAP or DHC directors for five years after the Merger.

42. DNAP retained the investment banking firm Piper Jaffray to provide financial advice and a fairness opinion regarding the Merger, which it delivered on approximately January 26, 1996. In its fairness opinion, Piper Jaffray:

(a) did not express an opinion regarding the Merger;

(b) did not express an opinion on whether the allocation of the merger consideration was fair to the Preferred Stockholders;

(c) did not determine the liquidation value of DNAP; and

(d) did not determine the value of DNAP's Transwitch Patents.

43. On January 26, 1996, the DNAP board of directors unanimously approved the Merger, and ELM, its affiliates and DNAP executed the Merger Agreement.

44. Prior to the Merger, two problems arose. First, as part of the Merger, Bionova U.S. agreed to contribute its subsidiaries to DHC. However, the earnings of Bionova U.S.'s subsidiaries were below the target set forth in the Merger Agreement. Second, NASDAQ advised Bionova U.S. that its common shares were unlikely to qualify for listing on the NASDAQ National Market System because the per-share price thereof would probably not meet the minimum requirements. In order to permit the Merger to go forward, ELM agreed to contribute an additional $8 million to Bionova U.S., resulting in a total capital contribution of $18 million.

45. On or about July 30, 1996, Piper Jaffray further opined that, on a discounted cash flow basis,the present value of DNAP's equity (the aggregate value of DNAP's common stock and Preferred Stock) was approximately $18 million, which was less than the combined market capitalization of $28 million for DNAP's common stock and Preferred Stock, and below the $34.5 million liquidation value to which DNAP's Preferred Stockholders were entitled.

46. On August 12, 1996, the defendants caused the Registration Statement, incorporating the Proxy Statement, to be filed with the Securities and Exchange Commission.

47. Defendants caused the Proxy Statement to be disseminated to DNAP's common and Preferred Stockholders in order to solicit the votes of common stockholders in favor of the Merger and the conversion of the DNAP common and Preferred Stock into the common stock of DHC.

48. DNAP's board of directors improperly refused to allow the Preferred Stockholders to vote on the Merger and, due to the misstatements and omissions of material facts from the Proxy Statement, prevented them from exercising their rights under state law.

49. Consequently, on approximately September 26, 1996, the Merger was consummated, DNAP became a wholly owned subsidiary of Bionova U.S./DHC, and the preferences of DNAP's Preferred Stockholders were eliminated.

MATERIAL MISREPRESENTATIONS AND OMISSIONS

DNAP'S COMPLIANCE WITH LAWS AND REGULATIONS

50. The Proxy Statement represented that DNAP had complied with all applicable laws and regulations:

To date, DNAP to the best of its knowledge, has successfully functioned within the scope of applicable laws and regulations, including rules administered by the FDA, USDA and EPA. The company believes it is in compliance with all applicable laws and regulations pertaining to the development and commercialization of its products.

51. This statement was misleading and false because the Proxy Statement omitted to state material facts required to be stated to make this statement not misleading. Specifically, in light of the circumstances under which this statement was made, it was necessary to disclose that DNAP was concealing the fact that it had lied to federal investigators by falsely denying that for over ten years DNAP and Brown & Williamson Tobacco Corporation conspired to and did violate federal criminal law by secretly exporting tobacco seeds which had been genetically altered to contain increased concentrations of nicotine.

52. Specifically, the Proxy Statement failed to disclose that DNAP had committed the following criminal acts:

(a) Beginning in 1983, DNAP contracted with Brown & Williamson to develop a commercial high-nicotine strain of tobacco;

(b) Between 1983 and 1994, DNAP worked on the breeding, development and agronomic improvement of varieties of tobacco that contained elevated levels of nicotine;

(c) DNAP received from Brown & Williamson a strain of tobacco with a nicotine level of about twice the normal nicotine level of tobacco, which DNAP and Brown & Williamson referred to as Y-1;

(d) During or about 1988, a DNAP employee illegally sent two shipments of tobacco seed, including Y-1 seed, to Brazil; (e) During or about January 1989, a DNAP employee illegally hand carried Y-1 seed into Canada;

(f) During or about July 1989, a DNAP employee illegally shipped 13 pounds of Y-1 seed to Brazil;

(g) On or about May 22, 1990, a DNAP employee provided about 12 pounds of Y-1 seed to an individual knowing and intending that this individual would and did smuggle that seed to Brazil; (h) On or about July 17, 1991, a DNAP employee provided Y-1 seed to an employee of a Brazilian tobacco company who was in the United States, knowing and intending that the employee would and did smuggle that seed back to Brazil. In a cover letter accompanying the seed, the DNAP employee wrote: "Enclosed please find the special materials required for the 1991-1992 winter trials"; and

(i) The goals of the conspiracy included: (i) to further the research into the growth and improvement of Y-1, (ii) to determine which countries were good locations for growing Y-1 tobacco, (iii) to develop a reliable source of supply of high-nicotine tobaccos that Brown & Williamson could use to control and manipulate the nicotine levels in its cigarettes, and (iv) to conceal from the federal government and third parties the fact that the conspirators were illegally exporting tobacco seed.

53. Because these facts were not disclosed, the Proxy Statement's claim that DNAP, to the best of its knowledge, had "successfully functioned within the scope of applicable laws and regulations" was materially misleading and false.

54. The nondisclosure of the pending federal criminal investigation into DNAP's unlawful activities also violated Item 103 of Regulation S-K, 17 C.F.R. §229, which requires companies to disclose legal proceedings "known to be contemplated by governmental authorities."

55. In December 1997, DNAP agreed to and subsequently did plead guilty to conspiracy to violate the Tobacco Seed Export Law.

56. On January 23, 1998, before the Honorable Norma H. Johnson in the United States District Court for the District of Columbia, in Case No. CR-98-007 (NHJ), DNAP pleaded guilty to conspiracy to violate the Tobacco Seed Export Law.

57. On September 22, 1998, immediately before the District Court imposed sentence on DNAP, DNAP's criminal defense attorney assured the United States District Judge that DNAP had provided the government with crucial information to support the government's position that the tobacco industry had knowledge, means and intent with regard to the control of nicotine levels in cigarettes.

58. By failing to disclose that DNAP had violated federal criminal law, DNAP's directors prevented the shareholders from enforcing their rights under Delaware state law. Instead, DNAP's directors were able to have the corporation, instead of themselves, plead guilty, complete the Merger, and obtain indemnification coverage for their own misdeeds.

DNAP Directors' Indemnity Coverage

59. In a section entitled "Conflicts of Interest," the Proxy Statement disclosed that the Merger Agreement required DNAP to provide its present and former directors with liability insurance. The aggregate limits of that coverage were required to be not less than three times the limits in effect at the "Effective Time." Because the limit in effect at the Effective Time was $5 million, the Merger Agreement required that DNAP's directors be provided with indemnity coverage in a total amount of $15 million.

60. In light of the circumstances under which this statement was made, and in order to avoid misrepresenting by understatement the extent of the DNAP directors' conflict of interest in negotiating the sale of the company on behalf of the shareholders while simultaneously negotiating for benefits for themselves such as obtaining director positions with the new company and shielding themselves from financial liability for DNAP's criminal conduct by increasing their own indemnification coverage, it was necessary to disclose that the trebling of their indemnification coverage occurred in the context of a particular and very real threat of liability -- DNAP's criminal liability for violating the Tobacco Seed Export Act. Without disclosure of DNAP's criminal conduct and that DNAP's officers and directors personally faced substantial civil and criminal liability, the Proxy Statement substantially understated and misrepresented the value of this benefit to DNAP's directors and understated the severity of the resulting conflict of interest.

The DNAP Directors' Reasons For The Merger

61. The Proxy Statement summarized ELM's reasons for the merger with DNAP as follows:

ELM believes that DNAP's research capabilities have the potential to provide synergies with other businesses of ELM, such as the seed business and the tobacco business, including a reduction in the research and development cycle in the seed business and the potential to develop new technology and differentiated, genetically engineered products. The Long Term Funded Research Agreement represents one way in which ELM and DNAP will attempt to develop such synergies.

62. The explanation for the Merger was misleading because it overstated the importance of the vaguely described and otherwise unidentified "synergies" and failed to disclose the extent of ELM's interest in obtaining DNAP's Y-1 technology, which would enable ELM's subsidiary to manipulate nicotine levels in its own tobacco products or to transfer the Y-1 technology to third parties.

63. The summary set forth in the Proxy Statement of the reasons for DNAP's board recommending the Merger was misleading and false because it omitted to disclose the full extent to which DNAP's directors personally would benefit from the Merger because the trebling of their indemnification coverage would reduce or eliminate the substantial civil and criminal liability DNAP's board faced because of DNAP's criminal conduct.

The Opinion Of DNAP's Board Of Directors Recommending The Merger

64. The DNAP directors' recommendation in favor of the Merger was misleading and false because it did not disclose the extent to which the board members were acting in furtherance of their personal financial interests.

The Voting Rights Of The Preferred Stockholders

65. The Proxy Statement represented that DNAP's Preferred Stockholders "are entitled to notice of, but not to vote at, the Special Meeting" being held to vote on the Merger Agreement.

66. This statement was erroneous because DNAP's Preferred Stockholders were entitled to vote on the Merger. The Certificate of Designation delineating the rights of the Preferred Stockholders provides that a majority vote of the Preferred Stockholders as a class is necessary for any "amendment, alteration, or repeal, whether by merger or consolidation or otherwise, of the Corporation's Certificate of Incorporation if the amendment, alteration, or repeal adversely affects the powers, preferences, or special rights of the preferred shareholders." Because the Merger eliminated all of the Preferred Stockholders' contractual preferences by forcibly converting DNAP's Preferred Stock into DHC common stock, the Merger effectively abrogated the Preferred Stockholders' Certificate of Designation and adversely affected the powers, preferences, and special rights of the Preferred Stockholders. That action could not be taken without the affirmative vote or consent of a majority of the Preferred Stockholders, voting separately as a class. Consequently, unless DNAP's Preferred Stockholders, voting separately as a class, voted in favor of the Merger, the Merger could not be consummated. The Proxy Statement's statement that the Preferred Stockholders were not entitled to vote was false.

67. Furthermore, the Preferred Stockholders were entitled to vote on the Merger because the merger consideration did not consist of "Marketable Stock" as DHC was not a successor to DNAP.

68. Because the consent of a majority of the Preferred Stockholders, voting separately as a class, was necessary to approve the Merger, the Proxy Statement's misstatement that the Preferred Stockholders were not entitled to vote was material. Considering that liquidation was more favorable to the Preferred Stockholders than the Merger, and that the Merger eliminated the Preferred Stockholders' Liquidation Preference, Special Conversion Rights and all of the other rights guaranteed by the Certificate of Designation, the Preferred Stockholders as a group would have voted against the Merger. Without the misstatement that the Preferred Stockholders were not entitled to vote, the Merger would not have occurred.

BENEFIT TO THE DEFENDANTS

69. By means of these misrepresentations and omissions of material facts, DNAP's directors promoted their own self-interest at the expense of the corporation and the Preferred Stockholders by:

(a) concealing the fact that DNAP had lied to federal investigators by falsely denying that DNAP repeatedly had violated federal criminal law;

(b) increasing their indemnity coverage from $5 million to $15 million at DNAP's expense pursuant to the Merger Agreement, thereby reducing or eliminating their personal financial liability for DNAP's criminal acts; and

(c) preventing the Preferred Stockholders from pursuing their state law rights and remedies to remove them as directors, install new directors free of conflicts of interest, block the Merger, and to obtain control of the company, and from offering DNAP's assistance to federal criminal authorities in determining which individuals were responsible for DNAP's criminal acts.

FIRST CLAIM FOR RELIEF

70. Plaintiff realleges as if set forth in full each allegation set forth above.

71. Defendants participated in reviewing, approving and disseminating the Proxy Statement when they knew it misrepresented and omitted material facts.

72. In connection with the purchase or sale of a security, and by using means or instrumentalities of interstate commerce or of the mails, defendants:

(a) Employed devices, schemes, or artifices to defraud; (b) Made untrue statements of material facts or omitted to state material facts necessary in order to make statements made, in light of the circumstances under which they were made, not misleading; and

(c) Engaged in acts, practices, and a course of business that operated as a fraud and deceit upon plaintiff.

SECOND CLAIM FOR RELIEF

73. Plaintiff realleges ¶¶1-69, as if set forth in full herein.

74. When the Registration Statement became effective, it contained untrue statements of material fact and omitted to state material facts required to be stated therein or necessary to make the statements therein not misleading.

75. Plaintiff suffered damages as a result of defendants' fraudulent conduct.

THIRD CLAIM FOR RELIEF

76. Plaintiff realleges ¶¶1-69 and 73-75, as if set forth in full herein.

77. Defendants offered to sell and did sell to plaintiff and members of the Class securities of Bionova U.S./DHC by means of the Proxy Statement which contained untrue statements of material fact and omitted to state material facts necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading.

78. Plaintiff suffered damages as a result of defendants' conduct.

FOURTH CLAIM FOR RELIEF

79. Plaintiff realleges ¶¶1-69 and 73-78, as if set forth in full herein.

80. Defendants ELM, Berezin, Ferguson, Herrera, Jimenez, Laubach, Luke and Serenbetz at all relevant times acted as control persons of DNAP or Bionova U.S./DHC, and had the power to influence and exercised the same to cause DNAP and Bionova U.S./DHC to engage in the unlawful acts and conduct complained of herein.

81. ELM acted as a control person of DHC within the meaning of §15 of the Securities Act of 1933 ("Securities Act"). By reason of ownership of Bionova and, in turn, of Bionova U.S./DHC leading up to the Merger, ELM had the power to influence and exercised the same to cause Bionova U.S./DHC to engage in the unlawful acts and conduct complained of herein.

82. As a direct and proximate result of the defendants' wrongful conduct, plaintiff and the members of the Class suffered damages in connection with the forced conversion of their DNAP Preferred Stock into Bionova U.S./DHC common shares.

FIFTH CLAIM FOR RELIEF

83. Plaintiff realleges as if set forth in full, each allegation set forth above.

84. This claim is asserted against defendants DNAP, Berezin, Ferguson, Laubach, Luke and Serenbetz.

85. Because defendants distributed to plaintiff and the members of the Class the Proxy Statement which misrepresented and omitted to state material information necessary to make the statements made therein not misleading in light of the circumstances under which they were made, to solicit a proxy or consent or authorization in respect to DNAP's common and Preferred Stock, and used the mails, the means and instrumentalities of interstate commerce, and the facilities of a national securities exchange in contravention of rules and regulations prescribed by the Securities and Exchange Commission for the protection of investors, plaintiff complains and alleges that defendants violated §14(a) of the Securities Exchange Act of 1934 ("Exchange Act") and Rule 14a-9 there under.

86. Defendants knew, or were reckless or negligent in not knowing, that the Proxy Statement contained untrue statements of material fact and omitted to state material facts necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading.

87. Plaintiff and members of the Class relied on the foregoing misrepresentations and omissions of material fact in connection with their acquiescence in the Merger. As a result, plaintiff and members of the Class were denied the opportunity to make an informed decision on the Merger Agreement and have sustained damages.

88. Because plaintiff and members of the Class relied on the foregoing misrepresentations and omissions of material fact and were lulled into not asserting certain rights and remedies available to them under Delaware state law, including the right to seek removal of the directors with or without cause pursuant to Del. Code Ann. Title 8, §141(k) (1996), appointment of a receiver pursuant to Del. Code Ann. Title 8, §226 (1996), to enjoin the Merger for violating Del. Code Ann. Title 8, §251 (1996) or for an appraisal and monetary damages under Del. Code Ann. Title 8, §262 (1996). Now that the Merger has been accomplished, plaintiff and the Class members have lost these Delaware state law remedies, among others.

89. As a direct and proximate result of these defendants' wrongful conduct, plaintiff and the Class have suffered damages in connection with the forced conversion of their shares of DNAP Preferred Stock into DHC common stock.

SIXTH CLAIM FOR RELIEF

90. Plaintiff realleges as if set forth in full, the allegations set forth above.

91. This claim is asserted against defendants ELM, DHC (then known as Bionova U.S.), DNAP, Berezin, Ferguson, Herrera, Jimenez, Laubach, Luke and Serenbetz.

92. ELM acted as a control person within the meaning of §20 of the Exchange Act. By reason of the transactions contemplated by the Merger Agreement, including the Loan Agreement, the terms of which required DNAP to assign its Transwitch Patents to Bionova U.S. and effectively precluded DNAP from considering alternative merger partners, ELM had the power to influence and did influence directly and indirectly Bionova U.S., DHC and DNAP to engage in the unlawful acts and conduct complained of in the Fourth Claim for Relief above and in violation of §14(a) of the Exchange Act.

93. Defendants Berezin, Ferguson, Herrera, Jimenez, Laubach, Luke and Serenbetz acted as controlling persons within the meaning of §20 of the Exchange Act. By reason of their senior management positions and/or directorships in ELM, Bionova U.S./DHC and DNAP, these defendants had the power to influence and did influence directly and indirectly DNAP to engage in the unlawful acts and conduct complained of in the Fourth Claim for Relief above and in violation of §14(a) of the Exchange Act.

PRAYER FOR RELIEF

WHEREFORE, plaintiff prays for the following relief:

1. Determination that the instant action is a proper class action maintainable under Rule 23 of the Federal Rules of Civil Procedure;

2. Awarding money damages against all defendants, jointly and severally, in favor of plaintiff and members of the Class for all losses and damages suffered as a result of the acts and transactions complained of herein, together with pre-judgment interest from the day of the wrongs to the day of judgment herein;

3. An order granting such equitable relief as the Court deems appropriate, including, without limitation, specific performance of plaintiff's Liquidation Preference and Special Conversion Rights as set forth in DNAP's Certificate of Designation of $2.25 Convertible Exchangeable Preferred Stock, and rescission of the Merger;

4. Awarding plaintiff the costs and disbursements of this action, including reasonable attorneys' and experts' fees;

5. Granting such further equitable, injunctive, or other relief as this Court may deem just and proper.

JURY DEMAND

Plaintiff demands a trial by jury.

DATED: January 28, 1999

MILBERG WEISS BERSHAD

HYNES & LERACH LLP

REED R. KATHREIN

______________________________

REED R. KATHREIN

222 Kearny Street, 10th Floor

San Francisco, CA 94108

Telephone: 415/288-4545

MILBERG WEISS BERSHAD

HYNES & LERACH LLP

WILLIAM S. LERACH

ALAN SCHULMAN

600 West Broadway, Suite 1800

San Diego, CA 92101

Telephone: 619/231-1058

SCHIFFRIN & BARROWAY, LLP

ANDREW L. BARROWAY

Three Bala Plaza East

Suite 400

Bala Cynwyd, PA 19004

Telephone: 610/667-7706

Attorneys for Plaintiff