SecProbe.io

CORRESP
1
filename1.htm

HCA INC.

J. Allen Overby

phone:(615) 742-6211

fax: (615) 742-2711

e-mail: aoverby@bassberry.com

BASS, BERRY & SIMS PLC

Attorneys at Law

A PROFESSIONAL LIMITED LIABILITY COMPANY

315 Deaderick Street, Suite 2700

Nashville, Tennessee 37238

(615) 742-6200

November 2, 2005

Via EDGAR and Facsimile (202) 772-9203

Jeffrey B. Werbitt

Attorney-Advisor

Office of Mergers and Acquisitions

Securities and Exchange Commission

Washington, DC 20549-0303

    Re:

    HCA Inc.

    Schedule TO-I

    Filed on October 14, 2005

    File No. 005-41652

Dear Mr. Werbitt:

On behalf of HCA Inc. (the “Company”), and in response
to the Staff’s comments contained in your letter dated
October 27, 2005 (the “Comment Letter”), I submit
this letter containing the Company’s responses to the
Comment Letter. The Company’s responses to the Comment
Letter correspond to the numbered comments in the Comment
Letter. Amendment No. 2 to the Schedule TO-I (the
“Amendment”) was filed today with the Securities and
Exchange Commission via EDGAR.

OFFER TO PURCHASE

    General

    1.

    Please provide a brief statement of the accounting treatment of
    the offer. See Item 1004(a)(l)(xi) of Regulation M-A.

Jeffrey B. Werbitt

Securities and Exchange Commission

November 2, 2005

Page 2

    RESPONSE:

    The disclosure has been revised in accordance with the
    comment.

    2.

    We note that HCA’s common stock has traded at a premium to
    the base price for the past year, and during that time the stock
    has also traded at a premium to the maximum offer price. Revise
    the filing to highlight this fact to security holders. Also
    highlight the risk that security holders who tender into this
    offer, particularly those who tender at the price to be
    determined in the offer, may receive less than they might
    receive in an open market sale.

    RESPONSE:

    The disclosure has been revised in accordance with the
    comment.

Summary Term Sheet, page 1

Once I have tendered Shares in the Offer, can I withdraw my
tendered Shares?, page 4

    3.

    You disclose that if not accepted for payment, the Shares
    tendered may also be withdrawn at any time after 5:00 p.m., New
    York City time on December 13, 2005.
    Rule 13e-4(f)(2)(ii) Rule 13e-4(a)(3) defines
    “business day” as the time period between 12:01 a.m.
    and 12:00 midnight Eastern Time, other than Saturday, Sunday, or
    a Federal holiday. Since your offer began on October 14,
    2005, it does not appear that your offer complies with the time
    period for additional withdrawal rights mandated by
    Rule 13e-4(f)(2)(ii) and must be changed. Please revise
    your Offer to Purchase here and throughout your document or
    advise.

    RESPONSE:

    The disclosure has been revised in accordance with the
    comment.

Forward Looking Statements. page 7

    4.

    The offer states that HCA “undertake[s] no obligation to
    make any revision to the forward-looking statements contained in
    this Offer to Purchase or to update them to reflect events or
    circumstances occurring after the date of this Offer to
    Purchase.” This disclosure appears to be inconsistent with
    your obligation under

Jeffrey B. Werbitt

Securities and Exchange Commission

November 2, 2005

Page 3

Rules 13e-4(c)(3) and 13e-4(e)(3) to
    amend the Schedule to reflect a material change in the
    information previously disclosed. Please revise and confirm your
    understanding.

    RESPONSE:

    The Company acknowledges the Staff’s position, and the
    disclosure has been revised in accordance with the comment.

6. Conditions of the Offer, page 25

    5.

    We note that you will terminate the offer in the event a
    condition is triggered, “regardless of the circumstances
    giving rise to the event or events (including any actions or
    omissions to act by us).” Allowing acts or omissions by the
    company to trigger a condition to the offer may render the offer
    illusory in that the circumstances giving rise to the existence
    of a condition are within the control of the company. Please
    revise and confirm your understanding of our position.

    RESPONSE:

    The Company acknowledges the Staff’s position, and the
    disclosure has been revised in accordance with the comment.

    6.

    A tender offer may only be subject to conditions that are not
    within the direct or indirect control of the bidder and are
    drafted with sufficient specificity to allow for objective
    verification that the conditions have been satisfied. Please
    make the following changes to satisfy these requirements:

    •

    Revise the bullet points to avoid the reference to
    “threatened” or “proposed” actions, as it is
    unclear how this could be objectively determined;

    •

    Revise the bullet points to quantify the term “delay,”
    as this term is problematic because of its breadth and lack of
    specificity;

    •

    Avoid use of the term “could,” as this terms is too
    vague to allow the shareholder to judge the scope of this
    condition;

    •

    Revise the third and fourth bullet points to describe the
    “contemplated benefits” or “contemplated future
    conduct,” or cross-reference a specific section of the
    document that discloses this information;

    •

    Clarify the language “any limitation, whether or not
    mandatory” in bullet point 5(d) or otherwise revise to
    provide a qualifier for the language;

Jeffrey B. Werbitt

Securities and Exchange Commission

November 2, 2005

Page 4

    •

    Revise bullet point 5(e) to clarify the “significant
    decrease” in the market price of shares of your common
    stock.

    RESPONSE:

    The disclosure has been revised in accordance with the
    comment.

9. Source and Amount of Funds, page 28

    7.

    Confirm to us that when the financing is complete, you will
    amend the Schedule TO to include the definitive terms of
    and conditions to the financing pursuant to Item 1007(b)
    and (d) of Regulation M-A and file any additional
    relevant agreements as exhibits in accordance with
    Item 1016(b) of Regulation M-A.

    RESPONSE:

    We supplementally advise the Staff that the Company currently
    intends to amend its existing revolving credit facility and to
    enter into definitive documentation for a new term facility on
    the terms set forth in the Term Facility Commitment Letter (as
    defined on page 30 of the Offer to Purchase) at least five
    business days prior to the expiration of the offer. The Company
    also currently intends to file an amendment to the
    Schedule TO disclosing these events.

    8.

    See our last comment above. Be advised that it is our position
    that a material change in the offer occurs when the offer
    becomes financed, e.g., financing is obtained or the financing
    condition is otherwise satisfied, and that, accordingly, five
    days must remain in the offer or the offer must be extended upon
    the satisfaction of the financing condition. In addition, this
    information must be disseminated to shareholders. Please advise
    of your intent in this regard.

    RESPONSE:

    See response to Comment No. 7 above.

11. Certain Information Concerning Us, page 35

    9.

    Your disclosure under “Incorporation by Reference”
    suggests that you are attempting to forward incorporate by
    reference. Please be advised that Schedule

Jeffrey B. Werbitt

Securities and Exchange Commission

November 2, 2005

Page 5

TO does not
    specifically allow you to forward incorporate disclosure in
    subsequently filed documents. In fact, doing so is inconsistent
    with the technical requirements of General Instruction F of
    Schedule TO and your obligation under
    Rules 13e-4(c)(3) and 13e-4(e)(3) to amend the Schedule to
    reflect a material change in the information previously
    disclosed. Please revise your document to clarify.

    RESPONSE:

    The disclosure has been revised in accordance with the
    comment.

13. Certain U.S. Federal Income Tax Consequences, page 42

    10.

    You are required to furnish a description of all of the
    “material” federal tax consequences of the
    transaction, rather than “certain” federal tax
    consequences. Revise the heading and the first sentence of this
    section to delete the word “[c]ertain” from the
    heading, and to clarify that this section addresses the material
    tax consequences of this transaction. See Item 1004(a)(xii)
    of Regulation M-A.

    RESPONSE:

    The disclosure has been revised in accordance with the
    comment.

    11.

    We note that you refer security holders to “consult [their]
    own tax advisor to determine the federal, state, local, foreign
    and other tax consequences” of participating in the offer.
    Because security holders are entitled to rely on your tax
    disclosure, it is inappropriate to include this apparent
    disclaimer. Similar disclaimers should be revised throughout
    your Offer to Purchase.

    RESPONSE:

    The disclosure has been revised in accordance with the
    comment.

14. Extension of Offer; Termination; Amendments, page 46

    12.

    We note your disclosure that that you may “postpone”
    payment for shares upon the occurrence of any conditions in this
    section and in Section 7. Be advised that HCA may not
    postpone acceptance or cancellation other than as a result of an

Jeffrey B. Werbitt

Securities and Exchange Commission

November 2, 2005

Page 6

    extension of the offer. All conditions to the offer, other than
    those conditions dependent upon the receipt of government
    approvals, must be satisfied or waived prior to expiration of
    the offer. Please revise your disclosure.

    RESPONSE:

    The disclosure has been revised in accordance with the
    comment.

Letter of Transmittal

    13.

    We note your request that the security holder acknowledge that
    they “understand” certain terms of the offer. It is
    not appropriate to require security holders to attest to the
    fact that they “understand” the terms of the offer as
    such language may effectively operate as a waiver of liability.
    Please delete this and other similar language throughout these
    materials. To the extent that you have already circulated the
    Election Form to security holders, please confirm that you will
    not utilize the referenced language set forth in this form as a
    waiver of liability against security holders.

    RESPONSE:

    The Company confirms that it will not utilize the referenced
    language as a waiver of liability against security holders. In
    addition, the disclosure has been revised in accordance with the
    comment.

Please do not hesitate to contact me at the above telephone
number if you have any questions or further comments. Thank you
in advance for your prompt attention to this matter.

    Sincerely,

    /s/ J. Allen Overby