Mail Stop 0303
November 19, 2004
VIA U.S. MAIL AND FACSIMILE
Jeffrey T. Baglio, Esq.
Paul B. Johnson, Esq.
Gray Cary Ware & Freidenrich LLP
4365 Executive Drive, Suite 1100
San Diego, CA 92121-2133
Re: Invitrogen Corporation
Registration Statement on Form S-4
File No. 333-120330
Schedule TO-I; File No. 5-56717
Filed November 9, 2004
Gentlemen:
We have reviewed your filings, and have the following
comments. The scope of our review has been limited to tender
offer and other non-accounting issues. Where indicated, we
think you should revise your documents in response to these
comments. Please understand that the purpose of our review
process is to assist you in your compliance with the applicable
disclosure requirements and to enhance the overall disclosure
in your filing. We look forward to working with you in these
respects.
Form S-4
General
1. We note Invitrogen has concluded that Rule 13e-3 does not apply
to the instant offers due in part because the existing notes are
not publicly traded on a national securities exchange. Please advise
us what consideration has been given to the applicability of Section
12(g) or 15(d) of the Exchange Act to the subject classes of
notes.
Early Commencement
2. Although the requirement to deliver a final prospectus has been
eliminated under Regulation M-A for exchange offers commenced
before effectiveness of the registration statement, offerors still
must file a final prospectus. The obligation to file a final
prospectus is not satisfied by the filing of an amendment to the
registration statement before effectiveness. See, on our website
www.sec.gov, Telephone Interpretation Manual Supplement dated July 2001,
Section I.E.3, for more information. Please confirm to us that
Invitrogen will satisfy its obligations to file a final prospectus,
after effectiveness, in accordance with the above interpretation.
Cover Page of Prospectus
3. We note your legend states "[t]he information in this
prospectus is not complete and may be changed." We also recognize
that a preliminary prospectus used to commence an exchange offer early
under Rule 162 must include the "red herring" legend required by Item
501(b)(10) of Regulation S-K. The sample legend provided in Item
501(b)(10)(iv) that indicates information in the prospectus is
"not complete and may be changed," however, should be appropriately
tailored to explain that the prospectus may be amended. The
legend should not state that the prospectus is not complete or is
otherwise subject to completion. The preliminary prospectus
disseminated to security holders must contain all required
information, including pricing information, in order to effectively
"commence" the exchange offer. Information may not be omitted under
Rules 430 or 430A. Please see Telephone Interpretation Manual
Supplement dated July 2001, Section I.E.2, for an example of a legend
that may be used when an exchange offer is commenced early under
Rule 162.
Summary Consolidated Financial Data, page 10
4. Consolidated financial data does not serve to fully substitute
for summarized financial data. Revise to include complete
summarized financial information required by Item 1010(c) of
Regulation M-A. In the event financial information required by
Item 1010(a) and (b) has been incorporated by reference, all of
the summarized financial information required by Item 1010(c) must
be disclosed in the disclosure document furnished to security holders.
See Instruction 6 to Item 10 of Schedule TO. In addition, refer to
telephone interpretation H.7 in the July 2001 supplement to our "Manual
of Publicly Available Telephone Interpretations" that is available on
the Commission`s website at http://www.sec.gov for additional
guidance.
Conditions to the Exchange Offer/Legal Limitation page 33
5. The conditions to the exchange offer do not appear to contain
specific enough information with respect to the time period over
which the conditions may be raised or asserted. The language in the
opening paragraph with respect to the legal limitation disclosure
improperly suggests that the conditions to the offer may be raised or
asserted following expiration of the offer. While conditions may
be viewed as ongoing rights, the staff objects when offerors reserve
the right to raise the conditions at any time. Please revise this
opening paragraph to expressly indicate that all conditions, other
than those dependent upon the receipt of government approvals, will
be satisfied or waived prior to the expiration date.
6. The disclosure indicates that once a condition is triggered, a
failure to exercise your right to terminate the offer will not
constitute a waiver of that condition. Please note that when a
condition is triggered and the offeror decides to proceed with the
offer, we believe that this decision constitutes a waiver of the
triggered condition. Please revise your disclosure to remove the
implication that Invitrogen reserves the right to conduct an
illusory offer.
Closing Comments
As appropriate, please amend the registration statement
and/or Schedule TO in response to these comments. You may wish to
provide us with marked copies of the amendment(s) to expedite our
review. Please furnish a cover letter with your amendment(s) that
keys your responses to our comments and provides any requested
supplemental information. Detailed cover letters greatly facilitate
our review. If you disagree with a comment, we will consider your
explanation as to why our comment is inapplicable or a revision is
unnecessary. Please be as detailed as necessary in your explanation.
After reviewing this information, we may or may not raise additional
comments.
We urge all persons who are responsible for the accuracy and
adequacy of the disclosure in the filings reviewed by the staff to
be certain that they have provided all information investors require.
Since the filing persons are in possession of all facts relating
to their disclosure, they are responsible for the accuracy and
adequacy of the disclosures they have made.
In connection with responding to our comments, please provide, in
writing, a statement from the filing persons acknowledging that:
* the filing persons are responsible for the adequacy and accuracy
of the disclosure in the filings;
* staff comments or changes to disclosure in response to staff
comments in the filings reviewed by the staff do not foreclose the
Commission from taking any action with respect to the filing; and
* the filing persons may not assert staff comments as a defense in
any proceeding initiated by the Commission or any person under the
federal securities laws of the United States.
In addition, please be advised that the Division of
Enforcement has access to all information you provide to the staff
of the Division of Corporation Finance in our review of your filing
or in response to our comments on your filing.
Please allow adequate time after the filing of any amendment
for further review before submitting a request for acceleration.
We direct your attention to Rules 460 and 461 regarding requesting
acceleration of a registration statement.
You may contact me on any questions regarding the comments at
(202) 942-2948.
Sincerely,
Nicholas P. Panos
Special Counsel
Office of Mergers and Acquisitions