<PAGE>
As filed with the Securities and Exchange Commission on February 24, 2000
Registration No. 333-_________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
____________
DIVERSA CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 22-3297375
(State of Incorporation) (I.R.S. Employer Identification No.
10665 Sorrento Valley Road
San Diego, CA 92121
(858) 623-5106
(Address of principal executive offices)
____________
1994 EMPLOYEE INCENTIVE AND NON-QUALIFIED STOCK OPTION PLAN
1997 EQUITY INCENTIVE PLAN
1999 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
____________
Jay M. Short
Chief Executive Officer
DIVERSA CORPORATION
10665 Sorrento Valley Road
San Diego, CA 92121
(858) 623-5106
____________
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
____________
Copies to:
M. Wainwright Fishburn, Esq.
COOLEY GODWARD LLP
4365 Executive Drive, Suite 1100
San Diego, CA 92121
(808) 550-6000
____________
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=====================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Aggregate Amount of
to be Registered Registered Price per Share(1) Offering Price(1) Registration Fee
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value 5,819,589 shares $.4206 - $89.125 $255,144,056.44 $67,358.03
$0.001 per share
=====================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h)(1) of the Securities Act of 1933,
as amended, (the "Securities Act"). Of the 5,819,589 shares registered
hereby, 31,493 shares are reserved for issuance pursuant to the 1994
Employee Incentive and Non-Qualified Stock Option Plan (the "1994 Plan"),
5,093,798 are reserved for issuance pursuant to the 1997 Equity Incentive
Plan (the "1997 Plan"), 277,719 are reserved for issuance pursuant to the
1999 Non-Employee Directors' Stock Option Plan (the "Directors' Plan") and
416,579 shares are reserved for issuance pursuant to the 1999 Employee
Stock Purchase Plan (the "ESPP"). The price per share and the aggregate
offering price are calculated on the basis of (a) the weighted average of
$.4206 to $.4897, the exercise price for 31,493 shares subject to
outstanding options granted under the 1994 Plan, (b) the weighted average
of $.4206 to $24.00, the exercise price for 2,988,920 shares subject to
outstanding options granted under the 1997 Plan, (c) an exercise price of
$24.00 per share for 83,313 shares subject to outstanding options granted
under the Directors' Plan and (d) the average of the high and low sales
prices of Registrant's Common Stock on February 23, 2000, as reported on
the NASDAQ National Market for the remainder of the shares subject to the
1997 Plan, the Director Plan and the ESPP registered hereunder.
1
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by DIVERSA CORPORATION (the "Registrant") with
the Securities and Exchange Commission (the "Commission") are incorporated by
reference into this Registration Statement:
1. The prospectus contained in the Form S-1 Registration Statement
(No. 333-92853) originally filed by the Registrant pursuant to Rule 424(b) with
the Commission on December 16, 1999, as amended, containing audited financial
statements for the Registrant's latest fiscal year, is hereby incorporated by
reference into this Registration Statement.
2. The description of the Registrant's Common Stock which is contained
in a registration statement filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), including any amendment or report filed for the
purpose of updating such description is hereby incorporated by reference into
this Registration Statement.
The Registrant has not filed, and has not been required to file, any
reports pursuant to Section 13 or 15(d) of the Exchange Act, as of the date
hereof.
All documents filed by the Registrant with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Registration Statement and 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 into this Registration Statement and to be a part hereof from the date
of filing of such documents.
Any statement contained in a document incorporated by reference herein shall
be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein 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.
DESCRIPTION OF SECURITIES
Not Applicable.
INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware General Corporation Law, the Registrant
has broad powers to indemnify its Directors and officers against liabilities
they may incur in such capacities, including liabilities under the Securities
Act.
The Registrant's Certificate of Incorporation and Bylaws include provisions
to (i) eliminate the personal liability of its directors for monetary damages
resulting from breaches of their fiduciary duty to the extent permitted by
Section 102(b)(7) of the General Corporation Law of Delaware (the "Delaware
Law") and (ii) require the Registrant to indemnify its Directors and officers to
the fullest extent permitted by Section 145 of the Delaware Law, including
circumstances in which indemnification is otherwise discretionary. Pursuant to
Section 145 of the Delaware Law, a corporation generally has the power to
indemnify its present and former directors, officers, employees and agents
against expenses incurred by them in connection with any suit to which they are
or are threatened to be made, a party by reason of their serving in such
positions so long as they acted in good faith and in
2
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a manner they reasonably believed to be in or not opposed to, the best interests
of the corporation and with respect to any criminal action, they had no
reasonable cause to believe their conduct was unlawful. The Registrant believes
that these provisions are necessary to attract and retain qualified persons as
Directors and officers. These provisions do not eliminate the Directors' duty of
care, and, in appropriate circumstances, equitable remedies such as injunctive
or other forms of non-monetary relief will remain available under Delaware Law.
In addition, each Director will continue to be subject to liability for breach
of the Director's duty of loyalty to the Registrant, for acts or omissions not
in good faith or involving intentional misconduct, for knowing violations of
law, for acts or omissions that the Director believes to be contrary to the best
interests of the Registrant or its stockholders, for any transaction from which
the Director derived an improper personal benefit, for acts or omissions
involving a reckless disregard for the Director's duty to the Registrant or its
stockholders when the Director was aware or should have been aware of a risk of
serious injury to the Registrant or its stockholders, for acts or omission that
constitute an unexcused pattern of inattention that amounts to an abdication of
the Director's duty to the Registrant or its stockholders, for improper
transactions between the Director and the Registrant and for improper
distributions to stockholders and loans to Directors and officers. The provision
also does not affect a Director's responsibilities under any other law, such as
the federal securities law or state or federal environmental laws.
The Registrant has entered into indemnity agreements with each of its
Directors and executive officers that require the Registrant to indemnify such
persons against expenses, judgments, fines, settlements and other amounts
incurred (including expenses of a derivative action) in connection with any
proceeding, whether actual or threatened, to which any such person may be made a
party by reason of the fact that such person is or was a Director or an
executive officer of the Registrant or any of its affiliated enterprises,
provided such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the Registrant and,
with respect to any criminal proceeding, had no reasonable cause to believe his
conduct was unlawful. The indemnification agreements also set forth certain
procedures that will apply in the event of a claim for indemnification
thereunder.
At present, there is no pending litigation or proceeding involving a
Director or officer of the Registrant as to which indemnification is being
sought nor is the Registrant aware of any threatened litigation that may result
in claims for indemnification by any officer or Director.
The Registrant has an insurance policy covering the officers and Directors
of the Registrant with respect to certain liabilities, including liabilities
arising under the Securities Act or otherwise.
3
<PAGE>
EXHIBITS
EXHIBIT
NUMBER
------
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Ernst & Young, LLP, Independent Auditors.
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement.
24.1 Power of Attorney is contained on the signature pages.
99.1* 1994 Employee Incentive and Non-Qualified Stock Option Plan, as
amended.
99.2* Form of Stock Option Agreement under the 1994 Employee Incentive
and Non-Qualified Stock Option Plan.
99.3* 1997 Equity Incentive Plan.
99.4* Form of Stock Option Grant Notice and Related Stock Option
Agreement under the 1997 Equity Incentive Plan.
99.5* 1999 Non-Employee Directors' Stock Option Plan.
99.6* Form of Stock Option Grant Notice and Related Stock Option
Agreement under the 1999 Non-Employee Directors' Stock Option
Plan.
99.7* 1999 Employee Stock Purchase Plan.
- ----------
* Filed as an exhibit to the Registrant's Registration Statement on Form
S-1 (No. 333-92853) originally filed on December 16, 1999, as amended
through the date hereof, and incorporated herein by reference.
UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of 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 the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) (ss. 230.424(b) of this
chapter) if, in the aggregate, the changes in volume and price represent no more
than a 20%
4
<PAGE>
change in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective 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)(i) and (a)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the issuer pursuant to
section 13 or section 15(d) of the Exchange Act that are incorporated by
reference herein.
(b) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) 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.
2. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. 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 foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the 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 Securities Act and will be governed by the final
adjudication of such issue.
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 San Diego, State of California on February 23, 2000.
DIVERSA CORPORATION
By:/s/ KARIN EASTHAM
-------------------------------
Karin Eastham
Senior Vice President, Finance and
Chief Financial Officer
5
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints JAY M. SHORT and KARIN EASTHAM, and each
or either of them, his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him or her and in his or her name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, 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, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his or her substitutes
or substitute, 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 by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ JAY M. SHORT President, Chief Executive Officer February 23, 2000
- ------------------------------ and Chief Technical Officer
Jay M. Short, Ph.D.
/s/ KARIN EASTHAM Senior Vice President, Finance and February 23, 2000
- ------------------------------ Chief Financial Officer (Principal
Karin Eastham Financial and Accounting Officer)
/s/ JAMES H. CAVANAUGH Director February 23, 2000
- ------------------------------
James H. Cavanaugh, Ph.D.
/s/ DANIEL T. CARROLL Director February 23, 2000
- ------------------------------
Daniel T. Carroll
Director February 23, 2000
- ------------------------------
Patricia M. Cloherty
/s/ DONALD D. JOHNSTON Director February 23, 2000
- ------------------------------
Donald D. Johnston
/s/ MARK LESCHLY Director February 23, 2000
- ------------------------------
Mark Leschly
/s/ MELVIN I. SIMON Director February 23, 2000
- ------------------------------
Melvin I. Simon
/s/ PETER JOHNSON Director February 23, 2000
- ------------------------------
Peter Johnson
</TABLE>
6
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIAL PAGE
NUMBER DESCRIPTION NUMBERS
------ ----------- -------
<S> <C> <C>
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Ernst & Young, LLP, Independent Auditors.
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement.
24 Power of Attorney is contained on the signature pages.
99.1* 1994 Employee Incentive and Non-Qualified Stock Option Plan, as
amended
99.2* Form of Stock Option Agreement under the 1994 Employee Incentive and
Non-Qualified Stock Option Plan.
99.3* 1997 Equity Incentive Plan.
99.4* Form of Stock Option Grant Notice and Related Stock Option Agreement
under the 1997 Equity Incentive Plan.
99.5* 1999 Non-Employee Directors' Stock Option Plan.
99.6* Form of Stock Option Grant Notice and Related Stock Option Agreement
under the 1999 Non-Employee Directors' Stock Option Plan.
99.7* 1999 Employee Stock Purchase Plan.
</TABLE>
---------------
* Filed as an exhibit to the Registrant's Registration Statement on Form
S-1 (No. 333-92853) originally filed on December 16, 1999, as amended
through the date hereof, and incorporated herein by reference.
7
<PAGE>
EXHIBIT 5.1
February 24, 2000
DIVERSA CORPORATION
10665 Sorrento Valley Road
San Diego, CA 92121
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by DIVERSA CORPORATION, a Delaware corporation (the "Company"),
of a Registration Statement on Form S-8 (the "Registration Statement") with the
Securities and Exchange Commission, covering the offering of an aggregate of up
to 5,819,589 shares of the Company's Common Stock, $.001 par value (the
"Shares"), including 31,493 shares issuable pursuant to the Company's 1994
Employee Incentive and Non-Qualified Stock Option Plan (the "1994 Plan"),
5,093,798 shares issuable pursuant to the Company's 1997 Equity Incentive Plan,
277,719 shares issuable pursuant to the Company's 1999 Non-Employee Directors'
Stock Option Plan (the "Directors' Plan") and 416,579 shares issuable pursuant
to the Company's 1999 Employee Stock Purchase Plan (the "ESPP").
In connection with this opinion, we have examined and relied upon the
Registration Statement and related prospectuses, the 1994 Plan, the 1997 Plan,
the Directors' Plan, the ESPP, the Company's Certificate of Incorporation and
Bylaws, as amended, and the originals or copies certified to our satisfaction of
such records, documents, certificates, memoranda and other instruments as in our
judgment are necessary or appropriate to enable us to render the opinion
expressed below. We have assumed the genuineness and authenticity of all
documents submitted to us as originals, the conformity to originals of all
documents submitted to us as copies thereof and the due execution and delivery
of all documents where due execution and delivery are a prerequisite to the
effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when issued and sold in accordance with the 1994 Plan, the 1997
Plan, the Directors' Plan or the ESPP, as applicable, the Registration Statement
and applicable related prospectus, will be validly issued, fully paid and
nonassessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
Cooley Godward LLP
D. Bradley Peck
<PAGE>
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 pertaining to the 1994 Employee Incentive and Non-Qualified Stock
Option Plan, the 1997 Equity Incentive Plan, the 1999 Non-Employee Directors'
Stock Option Plan, and the 1999 Employee Stock Purchase Plan of Diversa
Corporation of our report dated January 12, 2000, except for Note 11, as to
which the date is February 8, 2000, with respect to the financial statements of
Diversa Corporation included in the Registration Statement (Form S-1
No. 333-92853) of Diversa Corporation, as filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
------------------------------
ERNST & YOUNG LLP
San Diego, California
February 23, 2000
