July 24, 2006
Exhibit
(d)(2)
July 24, 2006
To:
|
Hercules Holding II, LLC | |
Re:
|
HCA Inc. |
Gentlemen:
Reference is made to the Agreement and Plan of Merger, dated as of the date hereof (as it may
be amended from time to time, the “Merger Agreement”), by and among Hercules Holding II,
LLC, a Delaware limited liability company (“Parent”), Hercules Acquisition Corporation, a
Delaware corporation (“Merger Sub”) and HCA Inc., a Delaware corporation (the
“Company”), pursuant to which Merger Sub, or a permitted assignee of Merger Sub, will be
merged into the Company (the “Merger”). Capitalized terms used but not defined herein have
the meanings ascribed to them in the Merger Agreement. The undersigned and the parties to the
Equity Financing Commitments are collectively referred to herein as the “Investors”. This
letter is being delivered to Parent in connection with the execution of the Merger Agreement by
Parent, Merger Sub and the Company.
This letter confirms the commitment of the undersigned, subject to the conditions set forth
herein, to transfer, contribute and deliver to Parent 15,686,275 Shares in the aggregate (the
“Rollover Contribution Shares”) immediately prior to the Effective Time in exchange for a
pro rata (in kind and amount) share of the equity of Parent based on the value of the aggregate
equity commitments of all of the Investors and assuming that the value of each Rollover
Contribution Share is equal to the Merger Consideration (such share of the equity of Parent, the
“Subject Equity Securities”), provided that the undersigned shall not, under any
circumstances, be obligated to contribute to Parent a number of Shares in excess of the Rollover
Contribution Shares. The undersigned’s obligation to transfer, contribute and deliver the Rollover
Contribution Shares to Parent is subject to the satisfaction or waiver by Parent (in the manner
agreed by the Investors) of the conditions precedent to Parent’s and Merger Sub’s obligation to
effect the Closing and the terms of this letter, and will occur contemporaneous with the Closing
and immediately prior to the Effective Time and the simultaneous issuance to the undersigned of the
Subject Equity Securities. The number of Shares to be contributed to Parent under this Agreement
will be reduced in the manner agreed by the Investors in the event Parent does not require all of
the equity with respect to which the Investors have made commitments.
The undersigned’s obligation to transfer, contribute and deliver the Rollover Contribution
Shares will terminate automatically and immediately upon the earliest to occur of (a) termination
of the Merger Agreement, (b) if the Requisite Investors (as defined herein) agree to terminate this
letter and the corresponding letters delivered by each of the Investors, and (c) the Company or any
of its Affiliates asserts in any litigation or other proceeding any claim under any limited
guarantee of even date herewith of any Investor (each, a “Limited Guarantee”) or otherwise
against any Investor or any Affiliate thereof in connection with the Merger Agreement or any of the
transactions contemplated hereby or thereby (other than any claim relating to a breach or seeking
to prevent a breach of a Confidentiality Agreement between the Company and any Investor or any
Affiliate thereof).
The undersigned’s obligation to transfer, contribute and deliver the Rollover Contribution
Shares may not be assigned, except as permitted in this paragraph. The undersigned may assign all
or a portion of its obligations to transfer, contribute and deliver the Rollover Contribution
Shares to its Affiliates or any heir, legatees, beneficiaries and or/devisees of any individual who
is an Affiliate of the undersigned; provided, however that, except to the extent otherwise agreed
to by Parent, any such assignment shall not relieve the undersigned of its obligations under this
letter.
This letter shall be binding solely on, and inure solely to the benefit of, the undersigned
and Parent and their respective successors and permitted assigns, and nothing set forth in this
letter shall be construed to confer upon or give to any person other than the undersigned and
Parent and their respective successors and permitted assigns any benefits, rights or remedies under
or by reason of, or any rights to enforce or cause Parent to enforce, the obligation to transfer,
contribute and deliver the Rollover Contribution Shares or any provisions of this letter.
Notwithstanding anything that may be expressed or implied in this letter, Parent, by its
acceptance of the benefits of this equity commitment, covenants, agrees and acknowledges that no
person other than the undersigned and its successors and permitted assigns shall have any
obligation hereunder and that, notwithstanding that the undersigned or its successors or permitted
assigns may be a partnership or limited liability company, no recourse hereunder or under any
documents or instruments delivered in connection herewith shall be had against any former, current
or future director, officer, agent, Affiliate, employee, general or limited partner, member,
manager or stockholder of the undersigned or any of its successors or permitted assigns or any
former, current or future director, officer, agent, Affiliate, employee, general or limited
partner, member, manager, stockholder, heir, legatee, beneficiary, devisee or estate of any of the
foregoing, whether by the enforcement of any assessment or by any legal or equitable proceeding, or
by virtue of any statute, regulation or other applicable Law, it being expressly agreed and
acknowledged that no personal liability whatsoever shall attach to, be imposed on or otherwise be
incurred by any former, current or future director, officer, agent, Affiliate, employee, general or
limited partner, member, manager or stockholder of the undersigned or any former, current or future
director, officer, agent, Affiliate, employee, general or limited partner, member, manager,
stockholder, heir, legatee, beneficiary, devisee or estate of any of the foregoing, as such, for
any obligations of the undersigned or any of its successors or permitted assigns under this letter
or any documents or instrument delivered in connection herewith or for any claim based on, in
respect of, or by reason of such obligation or their creation. For purposes of this letter,
“Affiliate” shall have the meaning ascribed thereto in the Merger Agreement but shall also
include, with respect to the undersigned, any of (i)(A) Xx. Xxxxxx X. Xxxxx, Xx., (B) Xx. Xxxxxx X.
Xxxxx III, (C) Xx. Xxxxxxx Xxxxxx Xxxxx or (D) Xx. Xxxxxxxx Xxxxx Elcan (such individuals
identified in clauses (A)-(D), the “Family Investors”), (ii) any other Person that is
controlled, directly or indirectly, by one or more of the Family Investors or (iii) any foundation
or trust established directly or indirectly by or for any one or more of the Family Investors.
This letter may only be enforced by Parent at the direction of the Requisite Investors in
their sole discretion. Parent shall have no right to enforce this letter unless directed to do so
by the Requisite Investors in their sole discretion. Parent’s creditors shall have no right to
enforce
this letter or to cause Parent to enforce this letter. “Requisite Investors” shall
mean any combination of at least three of the following: (i) Frisco, Inc. and Frisco Partners, (ii)
Xxxx Capital Fund IX, L.P., (iii) ML Global Private Equity Fund, L.P. and (iv) Kohlberg Kravis
Xxxxxxx & Co. L.P. on behalf of affiliated investment funds.
Concurrently with the execution and delivery of this letter, the undersigned is executing and
delivering to the Company a Limited Guarantee related to Parent’s and Merger Sub’s obligations
under the Merger Agreement. The Company’s remedies against the undersigned under the Limited
Guarantee shall, and are intended to be, the sole and exclusive direct or indirect remedies
available to the Company and its Affiliates against the undersigned and any former, current or
future director, officer, employee, agent, general or limited partner, manager, member,
stockholder, Affiliate or assignee of the undersigned or any former, current or future director,
officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate,
assignee, heir, legatee, beneficiary, devisee or estate of any of the foregoing in respect of any
liabilities or obligations arising under, or in connection with, the Merger Agreement and the
transactions contemplated thereby, including in the event Parent or Merger Sub breaches its
obligations under the Merger Agreement, whether or not Parent’s or Merger Sub’s breach is caused by
the undersigned’s breach of its obligations under this letter. Nothing in this letter, express or
implied, is intended to or shall confer upon any person, other than Parent and the undersigned, any
right, benefit or remedy of any nature whatsoever under or by reason of this letter.
This letter may be executed in counterparts. This letter and any related dispute shall be
governed by, and construed and interpreted in accordance with, the laws of the State of New York
applicable to contracts executed in and to be performed in that State. Each of the parties hereto
(i) consents to submit itself to the personal jurisdiction of any state or federal court located in
the Borough of Manhattan of The City of New York in the event any dispute arises out of this letter
or any of the transactions contemplated by this letter, (ii) agrees that it will not attempt to
deny or defeat such personal jurisdiction or venue by motion or other request for leave from any
such court and (iii) agrees that it will not bring any action relating to this letter or any of the
transactions contemplated by this letter in any court other than such courts sitting in the Borough
of Manhattan of The City of New York.
EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS LETTER OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
[Remainder of page intentionally left blank]
| Very truly yours, | ||||||||
| FRISCO, INC. | ||||||||
| By: | /s/ Xxxxxx X. Xxxxx, Xx. | |||||||
| Title: Authorized Person | ||||||||
| FRISCO PARTNERS | ||||||||
| By: | /s/ Xxxxxx X. Xxxxx, Xx. | |||||||
| Title: Authorized Person | ||||||||
| Accepted and Acknowledged as of the date first written above: |
||||||
| HERCULES HOLDING II, LLC | ||||||
By: |
/s/ Xxxxx Xxxxxx | |||||
| Title: President and Assistant Secretary | ||||||
[Equity Rollover letter Signature Page]
