Exhibit 4.1


EXECUTION COPY


 


 


 


HUMANA INC.,


Issuer


 


THE BANK OF NEW YORK TRUST COMPANY, N.A.,


Trustee


 


SECOND SUPPLEMENTAL INDENTURE


Dated as of May 31, 2006






 


6.450% Senior Notes due 2016






 


 


Supplemental to Indenture dated as of August 5,
2003
















THIS SECOND SUPPLEMENTAL INDENTURE (the “Second
Supplemental Indenture”) is made the 31st day of May, 2006, between HUMANA
INC., a corporation duly incorporated and existing under the laws of Delaware
and having its principal executive office at 500 West Main Street, Louisville,
Kentucky 40202 (hereinafter called “the Company”), and THE BANK OF NEW YORK
TRUST COMPANY, N.A. (as successor to The Bank of New York), a national banking
association, as Trustee (hereinafter called the “Trustee”).


RECITALS OF THE COMPANY


WHEREAS, the Company entered into an Indenture, dated
as of August 5, 2003 with the Trustee (the “Original Indenture,” and
together with this Second Supplemental Indenture, referred to herein as the “Indenture”)
(all capitalized terms used in this Second Supplemental Indenture and not
otherwise defined herein have the meanings assigned to such terms in the
Original Indenture), for the purposes of issuing its Securities, evidencing its
senior unsecured indebtedness, unlimited as to principal amount, to bear such
rates of interest, to mature at such time or times, to be issued in one or more
series and to have such other provisions as authorized by or pursuant to the
authority granted in one or more resolutions of the Board of Directors of the
Company; and


WHEREAS, Section 901 of the Original Indenture
provides that without the consent of the Holders of the Securities of any
series issued under the Original Indenture, the Company, when authorized by a
Board Resolution, and the Trustee may, in certain circumstances, enter into one
or more indentures supplemental to the Original Indenture; and


WHEREAS, the Company proposes to issue a series of
Securities designated as its 6.450% Senior Notes due 2016, the terms of which
shall be set forth in, or determined in the manner provided in, an Officers’
Certificate of the Company as provided in Section 301 of the Original
Indenture (such senior notes being referred to herein as the “2006 Senior Notes”
and all references to Securities in the Original Indenture shall be deemed to
refer also to the 2006 Senior Notes unless the context otherwise provides); and


WHEREAS, the entry into this Second Supplemental
Indenture by the parties hereto is in all respect authorized by the provisions
of the Original Indenture; and


WHEREAS, all conditions necessary to authorize the
execution and delivery of this Second Supplemental Indenture and to make it a
valid and binding obligation of the Company have been done or performed; and


NOW, THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE WITNESSETH:


For and in consideration of the premises and the
purchase of the 2006 Senior Notes by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all Holders
of the 2006 Senior Notes, as follows:


Section 1.   The
Original Indenture is hereby amended solely with respect to the 2006 Senior
Notes as follows:









 



(A)                              By
amending Section 101 to insert the following definitions in their entirety
in the appropriate alphabetical order as follows:


“Common Stock” means, with respect to any Principal
Subsidiary, Capital Stock of any class, however designated, except Capital
Stock which is non-participating beyond fixed dividend and liquidation
preferences and the holders of which have either no voting rights or limited
voting rights entitling them, only in the case of certain contingencies, to
elect less than a majority of the directors (or persons performing similar
functions) of such Principal Subsidiary, and also includes securities of any
class, however designated, which are convertible into Common Stock.


“Indebtedness” means, with respect to any Person
(without duplication):


(1)           any liability of that Person (A) for
borrowed money, or under any reimbursement obligation relating to a letter of
credit or similar instrument; (B) evidenced by a bond, note, debenture or
similar instrument; (C) to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business; or (D) for the payment of money relating to any obligations
under any capital lease of real or personal property which has been recorded as
a capitalized lease obligation;


(2)           any liability of others described in
the preceding clause (1) that the Person has guaranteed or that is
otherwise its legal liability or which is secured by a lien on that Person’s
Property; and


(3)           any amendment, supplement,
modification, deferral, renewal, extension or refunding of any liability of the
types referred to in clauses (1) or (2) above.


“Principal Subsidiary” means a consolidated subsidiary
of the Company that, as of the relevant time of determination, is a “significant
subsidiary” as defined under Rule 405 under the Securities Act of 1933, as
amended (as that Rule is in effect on May 25, 2006, without giving
effect to any further amendment of that Rule).


(B)                                By
replacing the definition of “Notice of Default” in Section 101 of the
Original Indenture in its entirety as follows:


“Notice of Default” has the meaning specified in
Sections 501(3) and 501(4).


(C)                                By
replacing Section 105(2) of the Original Indenture in its entirety as
follows:


(2)           the
Company by such Trustee or by any Holder shall be sufficient for every purpose
hereunder (except as provided in paragraphs (3) and (4) of Section 501)
if furnished in writing and mailed, first class postage prepaid, addressed to
it, to the attention of the Chief Financial Officer, at the address of its
principal office



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specified in the first paragraph of this instrument or
at any other address previously furnished in writing to such Trustee by the
Company, or if sent by facsimile transmission, to a facsimile number provided
to the Trustee by the Company, with a copy mailed, first class postage prepaid,
to the Company addressed to it as provided above.


(D)                               By
replacing Section 403 of the Original Indenture in its entirety as
follows:


Section 403.   Covenant Defeasance


Upon the Company’s exercise under Section 401 of
the option applicable to this Section 403, the Company shall be released
from any obligations under the covenants contained in Sections 704, 801 and
1007 hereof with respect to the Outstanding 2006 Senior Notes, on and after the
date the conditions set forth in Section 404 are satisfied (hereinafter, “Covenant
Defeasance”), and the 2006 Senior Notes and any coupons appertaining thereto
shall thereafter be deemed not “Outstanding” for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed “Outstanding”
for all other purposes hereunder (it being understood that such 2006 Senior
Notes shall not be deemed outstanding for accounting purposes). For this
purpose, such Covenant Defeasance means that, with respect to the Outstanding
2006 Senior Notes and any coupons appertaining thereto, the Company may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such covenant or by reason of
any reference in any such covenant to any other provision herein or in any
other document and such omission to comply shall not constitute a default or
Event of Default under subsection 501(3) but, except as specified above,
the remainder of this Indenture and the 2006 Senior Notes shall be unaffected
thereby.


(E)                                 By
replacing Section 404(d) of the Original Indenture in its entirety as
follows:


(d)           no
Event of Default or event which with the giving of notice or the lapse of time,
or both, would become an Event of Default with respect to the 2006 Senior Notes
shall have occurred and be continuing on the date of such deposit and no Event
of Default under Section 501(5) or Section 501(6) shall
have occurred and be continuing on the 123rd day after such date;


(F)                                 By
replacing Section 405(ii)(B) of the Original Indenture in its
entirety as follows:


(B)           no
Event of Default or event which with the giving of notice or the lapse of time,
or both, would become an Event of Default shall have occurred and be continuing
on the date of such deposit and no Event of Default under Section 501(5) or
Section 501(6) shall have occurred and be continuing on the 123rd day
after such date;



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(G)                                By
replacing Section 501 of the Original Indenture in its entirety as
follows:


“Event of Default” wherever used herein with respect
to the 2006 Senior Notes means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law pursuant to any judgment, decree
or order of any court or any order, rule or regulation of any
administrative or governmental body):


(1)           default in the
payment of any installment of interest upon any 2006 Senior Note and any
related coupon when it becomes due and payable, and continuance of such default
for a period of 30 days; or


(2)           default in the
payment of the principal of (or premium, if any, on) any 2006 Senior Note at
its Maturity; or


(3)           default in the
performance of, or breach of, any covenant or warranty of the Company in
respect of any 2006 Senior Note contained in this Indenture or in such 2006
Senior Notes (other than a covenant or warranty a default in whose performance
or whose breach is elsewhere in this Section specifically dealt with) and
continuance of such default or breach for a period of 60 days after there has
been given, by registered or certified mail, to the Company by the Trustee for
the 2006 Senior Notes or to the Company and such Trustee by the Holders of at
least 25% in principal amount of the Outstanding 2006 Senior Notes a written
notice specifying such default or breach and requiring it to be remedied and
stating that such notice is a “Notice of
Default” hereunder; or


(4)           (A) the Company
or any of its Subsidiaries fails to pay indebtedness for money borrowed by the
Company or any of its Subsidiaries in an aggregate principal amount of at least
$40,000,000, at the later of final maturity or the expiration of any related
applicable grace period and such payment shall not have been made, waived or
extended within 30 days after written notice from the Trustee or the Holders of
at least 25% in principal amount of the Outstanding 2006 Senior Notes as
provided below or (B) acceleration of maturity of Securities of another
series or any other indebtedness for borrowed money of the Company or any of
its Subsidiaries, in an aggregate principal amount exceeding $40,000,000, under
the terms of the instrument or instruments under which such indebtedness arises
or is secured, if such indebtedness has not been discharged in full or such
acceleration is not rescinded or annulled within 30 days after there has been
given, by registered or certified mail, to the Company by the Trustee or to the
Company and such Trustee by the Holders of at least 25% in principal amount of
the Outstanding 2006 Senior Notes a written notice specifying such default and
requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or



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(5)           the Company or any
of its Principal Subsidiaries shall commence any case or proceeding seeking to
have an order for relief entered on its behalf as debtor or to adjudicate it as
bankrupt or insolvent or seeking reorganization, liquidation, dissolution,
winding-up, arrangement, composition or readjustment of its debts or any other
relief under any bankruptcy, insolvency, reorganization, liquidation,
dissolution, arrangement, composition, readjustment of debt or other similar
act or law of any jurisdiction, domestic or foreign, now or hereafter existing;
or the Company or any of its Principal Subsidiaries shall apply for a receiver,
custodian or trustee (other than any trustee appointed as a mortgagee or
secured party in connection with the issuance of indebtedness for borrowed
money of the Company) of it or for all or a substantial part of its property;
or the Company or any of its Principal Subsidiaries shall make a general
assignment for the benefit of creditors; or the Company or any of its Principal
Subsidiaries shall take any corporate action in furtherance of any of the
foregoing; or


(6)           an involuntary case
or other proceeding shall be commenced against the Company or any of its
Principal Subsidiaries with respect to it or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect seeking the
appointment of a trustee, receiver, liquidator, custodian or similar official
of the Company or any of its Principal Subsidiaries or any substantial part of
either’s property; and such case or other proceeding (A) results in the
entry of an order for relief or a similar order against either the Company or
any of its Principal Subsidiaries or (B) shall continue unstayed and in
effect for a period of 60 consecutive days.


(H)                               By replacing the first
and second paragraphs of Section 502 of the Original Indenture in their
entirety as follows:


If an Event of Default with respect to the 2006 Senior
Notes and any related coupons occurs and is continuing (other than an Event of
Default described in Section 501(5) or 501(6) with respect to
the Company), then and in every such case either the Trustee for the 2006
Senior Notes or the Holders of not less than 25% in principal amount of the
Outstanding 2006 Senior Notes may declare the entire principal amount of all
the 2006 Senior Notes, to be due and payable immediately, by a notice in
writing to the Company (and to such Trustee if given by Holders), and upon any
such declaration of acceleration such principal, together with accrued interest
and all other amounts owing hereunder, shall become immediately due and
payable, without presentment, demand, protest or notice of any kind, all of
which are hereby expressly waived.


If any Event of Default specified in Section 501(5) or
501(6) occurs with respect to the Company, all of the unpaid principal
amount and accrued interest on all Securities of each series then outstanding
shall ipso facto become and be



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immediately due and
payable without any declaration or other act by the Trustee or any Holder.


(I)                                    By replacing the
last paragraph of Section 607 of the Original Indenture in its entirety as
follows:


When the Trustee incurs expenses or renders services
in connection with an Event of Default specified in Section 501(5) or
Section 501(6) the expenses (including the reasonable charges and
expenses of its counsel) and the compensation for the services are intended to
constitute expenses of administration under any applicable Federal or state
bankruptcy, insolvency or other similar law.


(J)                                   By replacing Section 1007
of the Original Indenture in its entirety as follows:


Section 1007.   Limitation on Liens


The Company shall not, and shall not permit any of its
Principal Subsidiaries to, issue, assume, Incur or guarantee any Indebtedness
secured by a mortgage, pledge, lien or other encumbrance, directly or
indirectly, on any of the Common Stock of a Principal Subsidiary owned by the
Company or any of its Principal Subsidiaries, unless the Company’s obligations
under the 2006 Senior Notes and, if the Company so elects, any other
Indebtedness of the Company ranking on a parity with, or prior to, the 2006
Senior Notes, shall be secured equally and ratably with, or prior to, such
secured Indebtedness so long as it is outstanding and is so secured.


(K)                               By replacing Section 1008
of the Original Indenture in its entirety as follows:


Section 1008.   Waiver of Certain Covenants.


The Company may omit in any particular instance to
comply with any covenant or condition set forth in Sections 1005 to 1007,
inclusive, if before or after the time for such compliance the Holders of more
than 50% in principal amount of the Outstanding Securities of each series of
Securities affected by the omission shall, in each case by Act of such Holders,
either waive such compliance in such instance or generally waive compliance
with such covenant or condition, but no such waiver shall extend to or affect
such covenant or condition except to the extent so expressly waived, and, until
such waiver shall become effective, the obligations of the Company and the
duties of the Trustee for the Securities of each series with respect to any
such covenant or condition shall remain in full force and effect.


Section 2.   The recitals and statements in
this Second Supplemental Indenture are made by the Company only and not by the
Trustee, and the Trustee makes no representation as to the validity or
sufficiency of this Second Supplemental Indenture (other than with respect to
the due authorization, execution and delivery of this Second Supplemental
Indenture by the Trustee). All of the provisions contained in the Original
Indenture in respect of the rights, privileges,



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immunities, powers
and duties of the Trustee shall be applicable in respect of the 2006 Senior
Notes and of this Second Supplemental Indenture as fully and with like effect
as if set forth herein in full.


Section 3.   As supplemented hereby, the
Original Indenture is in all respects ratified and confirmed, and the Original
Indenture and this Second Supplemental Indenture shall be read, taken and
construed as one and the same instrument and all references to Securities in
the Original Indenture shall be deemed to refer also to the 2006 Senior Notes
unless the context otherwise provides.


Section 4.   This Second Supplemental
Indenture shall be governed by, and construed in accordance with, the laws of
the State of New York.


Section 5.   In the event of a conflict
between the terms and conditions of the Original Indenture and the terms and
conditions of this Second Supplemental Indenture, then the terms and conditions
of this Second Supplemental Indenture shall prevail; provided that if and to
the extent that any provision of this Second Supplemental Indenture limits,
qualifies or conflicts with another provision which is required to be included
herein or in the Original Indenture by the Trust Indenture Act of 1939, as
amended, such required provision shall control.


Section 6.   All covenants and agreements in
this Second Supplemental Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.


Section 7.   In case any provision in this
Second Supplemental Indenture shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired hereby.


Section 8.   Nothing in this Second
Supplemental Indenture, expressed or implied, shall give to any Person, other
than the parties hereto and any Paying Agent, any Security Registrar and any
Authenticating Agent for the 2006 Senior Notes and their successors under the
Indenture, and the Holders of the 2006 Senior Notes any benefit or any legal or
equitable right, remedy or claim under this Second Supplemental Indenture.


Section 9.   This Second Supplemental Indenture may be
simultaneously executed in several counterparts, each of which shall be deemed
to be an original, and such counterparts shall together constitute but one and
the same instrument.


(signature page follows)



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IN WITNESS WHEREOF, the parties hereto have caused
this Second Supplemental Indenture dated as of May 31, 2006 to be duly
executed, all as of May 31, 2006.


HUMANA INC.,

Issuer


By:  /s/ James H. Bloem_________________

Name:               James
H. Bloem

Title:       Senior Vice President and
                Chief Financial Officer


THE BANK OF NEW YORK
TRUST COMPANY, N.A.,

Trustee


By:  /s/ L.
Garcia_______________________

Name: L. Garcia                                      

Title:   Assistant Vice President


 



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