SEC Division of Corporation Finance no-action letter: Gen Probe Inc/Chugai Pharmaceutical Co., Ltd.

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Securities Act of 1933 Rule 144(a)(3)

No Action, Interpretive and/or Exemptive Letter:

April 30, 2002

Response of the Office of International Corporate Finance Division of Corporation Finance

Re:

Chugai Pharmaceutical Co., Ltd. Incoming letter dated March 29, 2002

Based on the facts presented, and noting that shareholders ("Chugai shareholders") of Chugai common stock will receive the Japanese Disclosure Documents and the Information Statement (each as defined in your letter) containing information substantially similar to that required in a proxy or information statement complying with the requirements of Regulation 14A or 14C under the Securities Exchange Act of 1934("Exchange Act"), and that a registration statement on Form 10 under the Exchange Act with respect to the common stock ("Gen-Probe shares") of Gen-Probe Incorporated ("Gen-Probe") will be filed with the Commission and effective before the Distribution (as defined in your letter), the Division will not recommend enforcement action to the Commission if Chugai, in reliance on your opinion as counsel that registration is not required, distributes the Gen-Probe shares in accordance with the Distribution without registration under the Securities Act of 1933 ("Securities Act"). We are also of the view that the Gen-Probe shares received by Chugai shareholders in accordance with the Distribution would not be "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act. However, sales of Gen-Probe shares by Gen-Probe's affiliates would be subject to Securities Act Rule 144, except for the holding period requirement, absent registration or another appropriate exemption. Finally, while not necessarily agreeing with your analysis in this regard, the Division will not recommend enforcement action to the Commission if an independent agent sells Gen-Probe shares without registration under the Securities Act in order to provide cash for the elimination of fractional share interests in Gen-Probe shares that otherwise would have been distributed in the Distribution. These positions are based on the representations made to the Division in your letter. Any different facts or conditions might require the Division to reach different conclusions. Furthermore, the responses regarding registration under the Securities Act express the Division's positions on enforcement action only and do not express any legal conclusions on the questions presented. Sincerely, Mark W. Green Senior Special Counsel