Girard Gibbs & De Bartolomeo, LLP Announce Notice of Dismissal of Lawsuit Involving Former...

Business Editors

SAN FRANCISCO--(BUSINESS WIRE)--Aug. 22, 2003

To: All Persons Who Held DNA Plant Technology Corporation ("DNAP") $2.25 Convertible Exchangeable Preferred Stock That Was Exchanged For Common Stock of Bionova U.S., Inc, In The September 1996 Merger Of

This is a notice that a lawsuit brought on your behalf, In re DNAP Securities Litigation, Case No. C-99-0048-WHA, pending in the United States District Court for the Northern District of California, is being voluntarily dismissed by the plaintiffs who filed the case. The suit, which was filed in January 1999, alleges that Bionova, DNAP's former directors, and certain Bionova affiliates misrepresented and concealed information in the September 1996 concerning activities covertly engaged in by DNAP to develop high-nicotine tobacco. The suit originally asserted claims under the Securities Act of 1933 and the Securities Exchange Act of 1934. The District Court dismissed all claims in September 2000. In September 2002, the Ninth Circuit Court of Appeals partly reversed the judgment, allowing plaintiffs to proceed with their Securities Act claims.

The above class has not yet been certified for the lawsuit. The parties have been engaging in discovery. Plaintiffs have reached a settlement of their own claims for $250,000, and seek to dismiss the case. Thirty percent of the amount, or $75,000, will be deducted for the contingent fee payable to plaintiffs' counsel, and a further $28,000 will be deducted for expenses that counsel have incurred in the case. The remaining $147,000 will go to compensate the named plaintiffs for their claimed losses of over $1.5 million from investing in DNAP preferred stock.

The following is a summary of the reasons given by plaintiffs and their counsel for dismissing the case. Bionova is in weak financial condition, and has publicly disclosed substantial doubt about its ability to continue as a going concern. Defendants have told plaintiffs that their insurers are contesting coverage. Plaintiffs' counsel have previously reviewed thousands of pages of documents produced by defendants in a related case, Aaron v. Empresas La Moderna, Case No. C-97-0233-WHA (which ended in a defense judgment on all claims in December 2000), and deposed DNAP's former directors concerning the merger and DNAP's tobacco-related activities. The evidence developed so far suggests that substantially more resources will be needed to prepare this lawsuit for trial and that even with additional discovery, sufficient evidence may not exist to enable plaintiffs to meet their burden of proof at summary judgment or trial. Plaintiffs and their counsel have concluded that the prospects for recovery, considered in relation to the anticipated cost of prosecuting the case to judgment, are insufficient to justify further class action proceedings in this matter.

If the Court dismisses the case as requested by the named plaintiffs, then federal securities claims arising out of the September 1996 merger of DNAP will no longer be pursued on your behalf in this lawsuit. If you wish to pursue such claims, you may seek to intervene and take over prosecution of the case on a class basis or initiate a separate lawsuit. On November 19, 2003, at 2:00 p.m., a hearing will be held before the Honorable William Alsup, United States District Judge, in the United States District Court for the Northern District of California, Courtroom 9, 19th Floor, 450 Golden Gate Avenue, San Francisco, California 94102, to determine whether the case should be dismissed with prejudice to the named plaintiffs' claims and without prejudice as to yours. The dismissal may take place as early as the conclusion of the hearing. If you do not intervene in the present case or file your own lawsuit before the dismissal, the statute of limitations will have run on all claims you might have arising from the September 1996 merger of DNAP and Bionova, and you will be forever barred from asserting those claims. Therefore, if you wish to pursue the dismissed claims, you should take appropriate action immediately upon receipt of this notice.

Plaintiffs' $250,000 individual settlement will be paid by Defendants' insurers, and will likely result in a release of certain claims Defendants may have to further insurance coverage. Thus, the settlement will likely deplete the resources available to pay a settlement or judgment to any putative class member who pursues his or her own claims after dismissal of the case. If, however, any putative class member intervenes in the case to take over its prosecution, or files a separate lawsuit before the dismissal, then the named plaintiffs will not proceed with their individual settlement, so as not to deplete sources of recovery for any putative class member who takes the initiative to pursue these claims. In order for counsel and the Court to be aware of any attempt to intervene in this case or to file a separate lawsuit before the dismissal, any putative class member must inform the Court and counsel of such action by October 31, 2003, at the addresses below.

If you wish to object to or otherwise comment on the named plaintiffs' individual settlement or the proposed dismissal, you may do so by mailing or delivering your written comments, such that they are received on or before October 31, 2003 by the Court and plaintiffs' counsel at the following addresses:

The Court:

Clerk of the Court
United States District Court for the Northern District of California
450 Golden Gate Avenue
San Francisco, California 94102

Plaintiffs' counsel:

A. J. De Bartolomeo
Girard Gibbs & De Bartolomeo LLP
601 California Street, Suite 1400
San Francisco, California 94108

Your written comments must contain your name, address, telephone number; be signed by you; and include the reference In re DNAP Securities Litigation, Case No. C-99-0048-WHA.

If you wish to appear and present your comments orally at the above hearing, you may do so by mailing or delivering the following information in writing, such that it is received on or before October 31, 2003, by the Court and the named plaintiffs' counsel at the addresses listed above: a notice of your intention to appear and be heard, a statement of the position you intend to present at the hearing, and any supporting arguments. You may combine this information in a single document, or you may submit the information in a single packet of separate documents. This document or documents must contain your name, address, telephone number; be signed by you; and include the reference In re DNAP Securities Litigation, Case No. C-99-0048-WHA.

This is only a summary of the dismissal, the settlement, and the surrounding circumstances. More information is contained in a detailed Notice Of Voluntary Dismissal Of Putative Class Action, which is being mailed to putative class members, and which can be obtained from plaintiffs' counsel.