OLSHAN OLSHAN GRUNDMAN FROME ROSENZWEIG & WOLOSKY LLP PARK AVENUE TOWER 65 EAST 55TH STREET NEW YORK, NEW YORK 10022 TELEPHONE: 212.451.2300 April 20, 2006 FACSIMILE: 212.451.2222 WWW.OLSHANLAW.COM DIRECT DIAL: 212-451-2333 EMAIL: SWOLOSKY@OLSHANLAW.COM BY FACSIMILE AND FEDERAL EXPRESS Securities and Exchange Commission Division of Corporation Finance 100 F Street, N.E. Washington, D.C. 20549 Attn: Mara L. Ransom Re: LIFEPOINT HOSPITALS, INC. PREC14A FILED BY ACCIPITER LIFE SCIENCES FUND, LP ET AL FILED ON APRIL 12, 2006 FILE NO. 0-51251 Dear Ms. Ransom: We acknowledge receipt of the letter of comment dated April 18, 2006 from the Staff (the "Comment Letter") with regard to the above-referenced matter. We have reviewed the Comment Letter with Accipiter Life Sciences Fund, LP ("Accipiter") and provide the following supplemental response on its behalf. Unless otherwise indicated, the page references below are to the marked version of the enclosed paper copy of the Preliminary Schedule 14A filed on the date hereof. Capitalized terms used herein and not separately defined have the meanings given to them in the Preliminary Schedule 14A. Our responses are numbered to correspond to your comments. SCHEDULE 14A GENERAL 1. The Staff has asked Accipiter to advise on a supplemental basis how the group was formed. Each of ALSF II, ALSF Offshore, ALSF II Offshore, ALSF II QP, Accipiter Management, Candens and Mr. Hoffman are members of the group by virtue of their affiliation with Accipiter as further discussed in the Proxy Statement. Mr. Meghi, Mr. Holland and Ms. Viglucci are members of the group by virtue of their oral agreement with Accipiter to serve as its director nominees. Ms. Viglucci is an employee of Accipiter Management as discussed in the Proxy Statement. Messrs. Meghji and Holland have no affiliation with any other member of the group and were identified by Accipiter as potential nominees NEW JERSEY OFFICE 2001 ROUTE 46 / SUITE 202 PARSIPPANY, NEW JERSEY 07054 TELEPHONE: 973.335.7400 FACSIMILE: 973.335.8018April 20, 2006 Page 2 through its industry contacts. To Accipiter's knowledge, other than serving in the past on the Board of Directors of Mariner Health Care Inc., Messrs. Meghji and Holland are not affiliated with one another. 2. All correspondence sent by Accipiter or its affiliates to LifePoint that have been made publicly available, other than the March 24 letter, were filed earlier today with the Securities and Exchange Commission as soliciting materials under Rule 14a-12. The March 24 letter was not filed as solicitation materials as Accipiter had not made a determination whether or not it would nominate directors for election at the Annual Meeting at the time the letter was delivered to LifePoint. BACKGROUND TO SOLICITATION 3. The disclosure has been revised as requested in response to this comment. See page 4 of Proxy Statement. 4. The disclosure has been revised as requested in response to this comment. See page 4 of Proxy Statement. PROPOSAL NO. 1 - ELECTION OF DIRECTORS REASONS WHY ACCIPITER IS CHALLENGING THE INCUMBENT DIRECTORS 5. The disclosure has been revised as requested in response to this comment. See page 6 of Proxy Statement. WE BELIEVE THAT INADEQUATE DUE DILIGENCE OF AND POOR EXECUTION ON RECENT MERGERS . . . 6. Attached hereto as Exhibit 1, please find factual support for the statement that "population growth is not expected to dramatically expand over the near term." The disclosure has also been revised as requested in response to this comment. See page 7 of Proxy Statement. 7. The statements that LifePoint failed to receive certification "due to inappropriate staffing levels" and that "another CMS inspection that was scheduled for February 2006 was cancelled by the Company due to a lack of readiness" have been deleted. See page 7 of Proxy Statement. 8. The statements that "management has stated during various healthcare investment conferences that Danville is performing below budget. Revenues have suffered as admitting doctors have been boycotting the hospital in protest of the Company's actions" have been deleted. See page 7 of Proxy Statement. Attached hereto as Exhibit 2, please find factual support for the statement that there was "evidence of rising unemployment in the region prior to the acquisition" and other related statements on page 8 of Proxy Statement. April 20, 2006 Page 3 WE BELIEVE THAT THE PROPOSED ACQUISITION OF HOSPITALS FROM HCA INC. . . . 9. Attached hereto as Exhibit 3, please find factual support for management's statement that the HCA deal "would be accretive to earnings" and that "the performance at these hospitals has deteriorated significantly." 10. The statements that "other well-run for-profit hospital companies have fared poorly in this state and we suspect this is due to the rate setting methodology" and "the average for-profit hospital in West Virginia operates at margins substantially lower than LifePoint's average" have been deleted. See page 8 of Proxy Statement. WE BELIEVE LIFEPOINT SHOULD IMMEDIATELY REDUCE ITS LEVERAGE . . . 11. Attached hereto as Exhibit 4, please find support for the calculations relating to leverage ratios and current trading price ratios. THE NOMINEES 12. Accipiter believes it can nominate substitute nominees without being in conflict with the Company's By-Laws. The disclosure has been revised to state that Accipiter may nominate substitute nominees to the extent this is not prohibited under the Company's By-Laws and applicable law. See page 12 of Proxy Statement. Accipiter intends to disseminate to security holders a supplement to the Proxy Statement regarding any substitute nominees that are lawfully introduced. DISCRETIONARY VOTING 13. The Rules of the New York Stock Exchange ("NYSE Rules") will apply in determining whether brokerage firms have discretionary authority to vote shares held in street name. NYSE Rule 452 generally provides that a member organization may not give a proxy to vote without instructions from beneficial owners when the matter to be voted upon "is the subject of a counter-solicitation, or is part of a proposal made by a stockholder which is being opposed by management (i.e., a contest)." Accipiter has been advised by Automatic Data Processing, Inc. (ADP) that the Annual Meeting will be treated as an "election contest" for purposes of the NYSE Rules if ADP receives Accipiter's proxy materials by this Friday. Accipiter expects to deliver its proxy materials to ADP by this Friday. However, even if the Annual Meeting is treated as an "election contest," brokerage firms will have discretionary authority to vote shares held in street name by stockholders who do not receive Accipiter's proxy materials. Accipiter only plans on mailing proxy materials to stockholders who own 100 or more shares. Accordingly, brokerage firms will not have discretionary authority to vote shares held in street name by stockholders who own 100 or more shares while brokerage firms will have discretionary authority to vote shares held in street name by stockholders who own less than 100 shares. Normally, ADP will issue the discretionary vote on the 15th day before the meeting, or this Friday in this case. As long as Accipiter delivers its proxy materials to ADP by Friday, the discretionary vote that will apply to shares held by beneficial owners of less than 100 shares will not be released by ADP until the day before the Annual Meeting. After the discretionary vote is released the day before the Annual Meeting, April 20, 2006 Page 4 beneficial owners who did not previously instruct brokers on how to vote still have the ability to vote up until the closing of the polls, which such vote will supercede the discretionary vote. The disclosure has been revised to advise stockholders on the foregoing matters. See pages 15-16 of Proxy Statement. LEGAL PROCEEDINGS 14. The disclosure has been revised as requested in response to this comment. See pages 19-20 of Proxy Statement. * * * * * In connection with responding to the Staff's comments, a certificate signed by each of the participants containing the three acknowledgments requested by the Staff is attached hereto. As we discussed with the Staff, the Company did not file preliminary proxy material with the SEC and instead mailed definitive proxy material to stockholders. As we previously advised the Staff, Accipiter will file definitive proxy material shortly on the basis of its compliance with the Staff's comments. If the Staff has additional comments, Accipiter will appropriately respond to such comments. Very truly yours, /s/ Steven Wolosky Steven Wolosky Enclosure cc: Gabe Hoffman ACKNOWLEDGMENT In connection with responding to the comments of the Staff of the Securities and Exchange Commission ("SEC") relating to the preliminary proxy statement on Schedule 14A (the "Proxy Statement") filed by the undersigned on April 12, 2006, each of the undersigned acknowledges the following: o The undersigned is responsible for the adequacy and accuracy of the disclosure in the Proxy Statement. o The Staff's comments or changes to disclosure in response to Staff comments in the Proxy Statement reviewed by the Staff do not foreclose the SEC from taking any action with respect to the Proxy Statement. o The undersigned may not assert Staff comments as a defense in any proceeding initiated by the SEC or any person under the federal securities laws of the United States. [SIGNATURES ON FOLLOWING PAGE] Dated: April 19, 2006 ACCIPITER LIFE SCIENCES FUND, LP By: Candens Capital, LLC its general partner By: /s/ Gabe Hoffman ---------------------------------------- Gabe Hoffman, Managing Member ACCIPITER LIFE SCIENCES FUND II, LP By: Candens Capital, LLC its general partner By: /s/ Gabe Hoffman ---------------------------------------- Gabe Hoffman, Managing Member ACCIPITER LIFE SCIENCES FUND II (QP), LP By: Candens Capital, LLC its general partner By: /s/ Gabe Hoffman ---------------------------------------- Gabe Hoffman, Managing Member ACCIPITER LIFE SCIENCES FUND (OFFSHORE), LTD. By: Accipiter Capital Management, LLC its investment manager By: /s/ Gabe Hoffman ---------------------------------------- Gabe Hoffman, Managing Member ACCIPITER LIFE SCIENCES FUND II (OFFSHORE), LTD. By: Accipiter Capital Management, LLC its investment manager By: /s/ Gabe Hoffman ---------------------------------------- Gabe Hoffman, Managing Member ACCIPITER CAPITAL MANAGEMENT, LLC By: /s/ Gabe Hoffman ---------------------------------------- Gabe Hoffman, Managing Member CANDENS CAPITAL, LLC By: /s/ Gabe Hoffman ---------------------------------------- Gabe Hoffman, Managing Member /s/ Gabe Hoffman -------------------------------------------- GABE HOFFMAN /s/ Mohsin Y. Meghji -------------------------------------------- MOHSIN Y. MEGHJI /s/ Earl P. Holland -------------------------------------------- EARL P. HOLLAND /s/ Nicole Viglucci -------------------------------------------- NICOLE VIGLUCCI
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PRRN14A Filing
Accipiter Capital Management PRRN14ARevised preliminary proxy statement filed by non-management
Filed: 20 Apr 06, 12:00am