UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
Under the Securities Exchange Act of 1934
(Amendment No. 2)*
HUMANA INC.
(Name of Issuer)
COMMON STOCK, $.16-2/3 PAR VALUE
(Title of Class of Securities)
444859 10 2
(CUSIP Number)
Arthur P. Hipwell, Esq.
Senior Vice President & General Counsel
500 W. Main St.
Louisville, KY 40202
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
03/01/2002
(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box ( ).
NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Section 240.13d-7 for other parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter the disclosures provided in a prior cover page.
The information required in the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
CUSIP No. 444 859 102
1. Names of Reporting Persons.
I.R.S. Identification Nos. of above persons (entities only).
David A. Jones
2. Check the Appropriate Box if a Member of a Group (See Instructions)
(a) ( )
(b) ( X )
3. SEC Use Only
4. Source of Funds (See Instructions) N/A
5. Check if disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e)
N/A
6. Citizenship or Place of Organization: United States of America
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NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7. |
Sole Voting Power |
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8,753,963 |
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8. |
Shared Voting Power |
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-0- |
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9. |
Sole Dispositive Power |
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8,753,963 |
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10. |
Shared Dispositive Power |
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-0- |
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11. Aggregate Amount Beneficially Owned by Each Reporting Person
8,753,963
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
(X)
13. Percent of Class Represented by Amount in Row (11): 5.2%
14. Type of Reporting Person (See Instructions)
IN
Item 1. Security and Issuer.
$0.1667 par value common stock
HUMANA INC.
500 West Main Street
Louisville, KY 40202
Item 2. Identity and Background
(a) Name of Person Filing: David A. Jones
(b) Address of Principal Business Office or, if none, Residence:
500 West Main Street
Louisville, KY 40202
(c) Principal Occupation:
Chairman of the Board
Humana Inc.
500 W. Main St.
Louisville, KY 40202
(d) The Reporting Person has not been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) during the last five years.
(e) The Reporting Person has not been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction as a result of which the Reporting Person was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws during the last five years.
(f) Citizenship:
United States of America
Item 3. Source and Amount of Funds or Other Consideration: N/A
Item 4. Purpose of Transaction
Reporting Person has entered into Section 10b5-1 Trading Plans. The Reporting Person through one of the brokers will sell up to Eighty Thousand (80,000) shares per month. The brokers will alternate months with Merrill Lynch, Pierce, Fenner & Smith beginning in March 2002, and UBS PaineWebber Inc. beginning in April 2002. The Trading Plans cover up to an aggregate of Nine Hundred Sixty Thousand (960,000) shares of Humana Inc. common stock. The 10b5-1 Trading Plans are scheduled to terminate no later than February 28, 2003 subject to earlier termination per the provisions as set out in the Trading Plans. See Exhibits 99.1 and 99.2.
Item 5. Interests in Securities of the Issuer
Provide the following information regarding the aggregate number and percentage of the class of securities of the issuer identified in Item 1.
(a) Reporting Person beneficially owns 8,753,963 shares of Humana Inc. common stock. This represents 5.2% of the 168,902,725 shares outstanding as of March 1, 2002. Reporting Person disclaims ownership of 30,000 shares of Humana Inc. common stock held by his wife and 1,385 shares of Humana Inc. common stock held in a Trust on her behalf. Also excludes 255,000 stock options that are not exercisable within sixty (60) days.
(b) Reporting Person has sole voting and dispositive power over over 8,753,963 shares assuming the exercise of 20,000 options within sixty (60) days.
(c) During the last sixty (60) days the following transactions were effected by the Reporting Person: N/A
(d) N/A
(e) N/A
Instruction. For computations regarding securities which represent a right to acquire an underlying security see Sections 240.13d3(d)(1) and the note thereto.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to
Securities of the Issuer:
Reporting Person has entered into Section 10b5-1 Trading Plans. The Reporting Person through one of the brokers will sell up to Eighty Thousand (80,000) shares per month. The brokers will alternate months with Merrill Lynch, Pierce, Fenner & Smith beginning in March 2002, and UBS PaineWebber Inc. beginning in April 2002. The Trading Plans cover up to an aggregate of Nine Hundred Sixty Thousand (960,000) shares of Humana Inc. common stock. The 10b5-1 Trading Plans are scheduled to terminate no later than February 28, 2003 subject to earlier termination per the provisions as set out in the Trading Plans. See Exhibits 99.1 and 99.2.
In March 2001 Reporting Person entered into a forward sale agreement ("Forward Agreement") relating to up to 451,700 shares (the "Base Amount") of Humana Common Stock ("Common Stock"). In connection with the Forward Agreement, between March 14, 2001 and March 22, 2001, the counterparty sold 451,700 shares of Common Stock into the public market in accordance with paragraphs (f) and (g) of Rule 144 under the Securities Act of 1933, as amended, at an average price of $11.32 per share. The Forward Agreement provides that three business days after March 22, 2004, Reporting Person will deliver a number of shares of Common Stock (or, at the election of Reporting Person, the cash equivalent of such shares) based on the following: (a) if the closing price of the Common Stock on March 22, 2004 (the "Final Price") is less than $11.32 per share, Reporting Person will deliver 451,700 shares; (b) if the Final Price is equal to or greater than $11.32 per share (the "Floor Price"), but less than or equal to $13.92 per sh are (the "Cap Price"), Reporting Person will deliver a number of shares equal to Floor Price/Final Price x 451,700; and (c) if the Final Price is greater than the Cap Price, Reporting Person will deliver a number of shares equal to Floor Price + (Final Price - Cap Price)/(Final Price x 451,700). In consideration therefor, Reporting Person has received a price of $4,381,490.
Item 7. Material to be Filed as an Exhibit:
Exhibit 99.1 Section 10b5-1 Trading Plan with Merrill Lynch, Pierce, Fenner & Smith
Exhibit 99.2 Section 10b5-1 Trading Plan with UBS PaineWebber, Inc.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
March 4, 2002 /s/ David A. Jones David A. Jones, Chairman of the Board Humana Inc. |
The original statement shall be signed by each person on whose behalf the statement is filed or his authorized representative. If the statement is signed on behalf of a person by his authorized representative other than an executive officer or general partner of the filing person, evidence of the representative's authority to sign on behalf of such person shall be filed with the statement, provided, however, that a power of attorney for this purpose which is already on file with the Commission may be incorporated by reference. The name and any title of each person who signs the statement shall be typed or printed beneath his signature.
NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Sections 240.13d-7 for other parties for whom copies are to be sent.
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Attention: |
Intentional misstatements or omissions of fact constitute Federal criminal violations (See 18 U.S.C. 1001) |
David A. Jones
Humana Inc.
Humana Common Stock
Reference number:Acct.xxxxxx
Rule 10b5-1 Sales Plan
I, David A. Jones, have, as of the date set forth below,
established this Sales Plan (the "Plan") in order to sell
shares of Humana Inc. (the "Issuer") common stock pursuant
to the requirements of Rule 10b5-1 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
I request that Merrill Lynch, Pierce, Fenner & Smith Incorporated
("Merrill Lynch") execute the Plan as follows:
1. Starting March 4, 2002, sell:
Eighty Thousand (80,000) shares every other month as follows:
March 2002, May 2002, July 2002, September 2002, November 2002,
and January 2003, beginning with the date set out above, provided
the price per share is at or above Thirteen Dollars ($13.00) on
the New York Stock Exchange (the "Exchange") not to exceed Four
Hundred Eighty Thousand (480,000) shares over the term of the Plan.
2. The Plan shall end on the earliest of:
a. February 28, 2003;
b. the completion of all sales contemplated in paragraph 1 of
the Plan;
c. my or Merrill Lynch's reasonable determination that:
(i) the Plan does not comply with Rule 10b5-1 or other applicable
securities laws;
(ii) I have not, or Merrill Lynch has not, complied with the Plan,
Rule 10b5-1 or other applicable securities laws; or
(iii) I have made misstatements in my Client Representation Letter
to Merrill Lynch;
d. the filing of a bankruptcy petition by the Issuer;
e. the public announcement of a merger, recapitalization,
acquisition, tender or exchange offer, or other business
combination or reorganization resulting in the exchange
or conversion of the shares of the Issuer into shares of
a company other than the Issuer;
f. the public announcement of a public offering of securities
by the Issuer;
g. the conversion of the shares into rights to receive fixed
amounts of cash or into debt securities and/or preferred stocks
(whether in whole or in part);
h. my death, disability or mental incapacity;
i. receipt by Merrill Lynch of written notice of termination
from me pursuant to paragraph 12 below.
3. If Merrill Lynch must suspend sales of shares allocated under
the Plan, pursuant to paragraph 1 above, on a particular day for
any of the following reasons:
a. notice from Issuer's counsel to suspend the Plan;
b. a day specified by the Plan is not a day on which the
shares trade regular way on the Exchange;
c. trading of the shares on the Exchange is suspended for any reason;
d. there is insufficient demand for any or all of the shares at
or above the specified price;
e. Merrill Lynch cannot effect a sale of shares due to legal,
regulatory or contractual restrictions applicable to it or to
me (including without limitation, Regulation M); or
f. if the shares are being sold pursuant to a registration statement,
the termination, expiration, suspension or unavailability of the
registration statement;
then Merrill Lynch will resume sales in accordance with paragraph 1
above on the next day specified in the Plan after the condition
causing the suspension of sales has been resolved to the satisfaction
of Merrill Lynch and me. Shares allocated under the Plan for sale
during the period when sales under the Plan are suspended will remain
unsold.
4. At the discretion of Merrill Lynch, shares allocated under the
Plan for sale on a given day or date may be sold in bulk or in
smaller increments, depending upon market demand and the minimum
price established above in paragraph 1.
5. In the event of a stock split or reverse stock split, the number
of shares sold and the dollar amount at which shares are sold will
be automatically adjusted proportionately.
6. Unless I have indicate otherwise in paragraph 2 above, in the
event of a reincorporation or other corporate reorganization
resulting in an automatic share-for-share exchange of new shares
for the type of shares subject to the Plan, then the new shares
will automatically replace the type of shares originally specified
in the Plan.
7. Rule 144 and Rule 145
a. I, through Issuer's counsel, will complete and file my Forms
144 necessary to effect the Plan, if any;
b. each Form 144 shall state that the sales are being effected in
accordance with a sales plan intended to comply with Rule 10b5-1.
c. Merrill Lynch will conduct sales pursuant to Rule 144 or Rule
145 if appropriate, including applying Rule 144 volume limitations
as if the sales under the Plan were the only sales subject to the
volume limitations. Merrill Lynch has been advised that I have
entered into a Rule 10b5-1 trading plan with UBS Paine Webber Inc.
and that together these sales will be in compliance with Rule 144
volume limitations.
8. Indemnification.
a. I agree to indemnify and hold harmless Merrill Lynch from and
against all claims, losses, damages and liabilities arising out
of inquiries and/or proceedings resulting from assertions that:
(i) the Plan or sales made under the Plan do not comply with
Rule 10b5-1 or with state securities laws or regulations prohibiting
trading while in possession of material nonpublic information and
(ii) Merrill Lynch has not executed any sales pursuant to the
provisions of the Plan.
b. This indemnification will survive termination of the Plan.
9. The Plan may be modified or amended only upon:
a. the written agreement of myself and Merrill Lynch; and
b. the receipt by Merrill Lynch of a certificate that I have
signed to the effect that the representations, warranties and
covenants contained in my Client Representation Letter, dated
the date hereof, are true as of the date of such certificate.
10. The Plan may be signed in counterparts, each of which will
be an original.
11. The Plan and my above-mentioned Client Representation Letter,
dated the date hereof, together constitute the entire agreement
between me and Merrill Lynch and supersede any prior agreements
or understandings regarding the Plan.
12. All notices given by the parties under this Plan will be
as follows:
a. If to Merrill Lynch:
Lane Fentriss, Administration Manager and,
Richard S. Park
Merrill Lynch, Fenner & Smith, Inc.
101 Bullitt Lane, Suite 400
Louisville, KY 40222
b. If to me: With a copy to:
David A. Jones Arthur P. Hipwell
Chairman of the Board Sr. Vice President & General Counsel
Humana Inc. Humana Inc.
500 West Main Street 500 W. Main St.
Louisville, KY 40202 Louisville, KY 40202
This Plan will be governed by and construed in accordance with
the internal laws of the State of New York.
By:___/s/ David A. Jones_ Acknowledged and Agreed:
David A. Jones Merrill Lynch, Pierce, Fenner
& Smith Incorporated
Date: March 4, 2002 By: _/s/Lane A. Fentriss___
Name: Lane A. Fentriss
Title: Resident Vice President
/Manager
3
Rule 10b5-1 Trading Plan
This Trading Plan dated March 4,
2002 (the "Trading Plan") is entered
into between David A. Jones ("Seller")
and UBS PaineWebber Inc. ("UBS
PaineWebber"), acting as agent, for the
purpose of establishing a trading plan
that complies with Rule 10b5-1(c)(1)
under the Securities Exchange Act of
1934, as amended (the "Exchange Act").
Seller and UBS PaineWebber agree as
follows:
1. Specific Plan of Sale. UBS
PaineWebber agrees
to effect sales of common stock, par
value $0.1667 per share, of Humana Inc.
("Issuer") (the "Stock") on behalf of
Seller in accordance with the specific
instructions set forth in Exhibit A
hereto (the "Sales Instructions").
2. Fees/Commissions. Seller shall pay
UBS PaineWebber XXXXXXXX per share of Stock
sold; such amount to be deducted by UBS
PaineWebber from the proceeds of sales
under this Trading Plan.
3. Seller's Representations and
Warranties. As of the date hereof, Seller
represents and warrants that:
(a) Seller is not aware of any material nonpublic
information concerning Issuer or any securities of
Issuer;
(b) Seller is entering into this Trading Plan
in good faith and not as part of a plan or scheme
to evade the prohibitions of Rule 10b5-1;
(c) Seller is not subject to any legal,
regulatoryor contractual restriction or undertaking
that would prevent UBS PaineWebber from
conducting sales in accordance with this
Trading Plan;
(d) This Trading Plan is consistent with
Issuer's insider trading policy;
(e) Seller has informed Issuer of this
Trading Plan, has furnished Issuer with a copy
of this Trading Plan and has been informed by
Issuer that this Trading Plan is consistent with the
Issuer's insider trading policy;
(f) Seller has informed UBS PaineWebber that
he is currently a party to an agreement
with Merrill Lynch, Pierce, Fenner &
Smith Incorporated for the purpose of
establishing a trading plan that complies
with Rule 10b5-1 (the "Merrill Lynch
Plan"). Seller is not currently a party
to and within the 60 days preceding the
date hereof, has not been a party to any
other such agreements or trading plans.
(g) the Stock to be sold under this Trading
Plan is owned free and clear by Seller and is not
subject to any liens, security interests
or other encumbrances or limitations on
dispositions;
(h) to the extent that any Stock is eligible
for sale under Rule 144 or Rule 145 under the
Securities Act of 1933, as amended (the
"Securities Act"), that Stock is not
subject to any liens, security interests
or other encumbrances or limitations on
disposition, other than those imposed by
Rule 144 or Rule 145; and
(i) Seller has had an opportunity to consult
with Seller's own advisors as to the
legal (including this Trading Plan's
compliance with Rule 10b5-1 and
applicable state law), tax, business,
financial, accounting and related aspects
of this Trading Plan, including potential
application of Section 16(b) of the
Exchange Act to any transaction (whether
or not under this Trading Plan) engaged
in by Seller or on Seller's behalf.
Seller has not relied upon UBS
PaineWebber or any person affiliated with
UBS PaineWebber in connection with
Seller's adoption or implementation of
this Trading Plan, and Seller
acknowledges that Seller has not received
or relied on any representations from UBS
PaineWebber concerning this Trading
Plan's compliance with Rule 10b5-1.
4. Agreements by Seller.
(a) Brokerage Account. Seller agrees
that it will open a UBS PaineWebber
brokerage account
prior to the execution of sales
under this Trading Plan and agrees
to comply with its terms and
conditions.
(b) Delivery of Stock.
(i) Seller agrees to deliver
all shares of Stock to be
sold pursuant to this
Trading Plan (with the
amount to be agreed upon
by Seller and UBS
PaineWebber, if the Sale
Amount is designated as an
aggregate dollar amount)
(the "Plan Shares") into
an account at UBS
PaineWebber in the name of
and for the benefit of
Seller (the "Plan
Account") prior to the
commencement of any sales
under this Trading Plan.
Upon notification from UBS
PaineWebber, if any, that
the number of shares of
Stock in the Plan Account
is less than the number of
Plan Shares that UBS
PaineWebber estimates
remain to be sold pursuant
to this Trading Plan,
Seller agrees to deliver
promptly to the Plan
Account the number of
shares of Stock specified
by UBS PaineWebber as
necessary to eliminate
this shortfall.
(ii) Seller agrees that its
failure to make effective
delivery ofshares of Stock
shall relieve UBS
PaineWebber of its
obligations under this
Trading Plan.
(c) Hedging Transactions. While
this Trading Plan is in effect,
Seller agrees to comply with the
prohibition set forth in Rule 10b5
1(c)(1)(C) against entering into or
altering a corresponding or hedging
transaction or position with respect
to the Stock.
(d) Notice to UBS PaineWebber.
Seller agrees to notify UBS
PaineWebber to terminate or suspend
sales, as appropriate, as soon as
practicable upon the occurrence of
any of the events contemplated in
paragraph 8(a), (b), (c) or (d) or
paragraph 9(c).
(e) Communications. Seller agrees
that it shall not, directly or
indirectly, communicate
any material nonpublic information relating to
the Stock or Issuer to any employee of the UBS
PaineWebber 10b5-1 Group or any UBS PaineWebber
Financial Advisor.
(f) Certain Required Exchange Act Filings.
Seller agrees to make all filings, if any,
required under Sections 13(d), 13(g) and 16 of
the Exchange Act in a timely manner, to the
extent any such filings are applicable to
Seller.
(g) Compliance with Applicable Laws. Seller
agrees to comply with all applicable laws,
including, without limitation,
Section 16(a) of the Exchange Act and the rules
and regulations promulgated thereunder.
(h) No Influence. Seller acknowledges and
agrees that Seller does not have, and shall not
attempt to exercise, any influence over how,
when or whether to effect sales of Stock
pursuant to this Trading Plan.
(i) Stock Non-Marginable. The Stock is not
marginable and may not be used by Seller as
collateral for any purpose.
(j) Discretion. Seller acknowledges and agrees
that UBS PaineWebber and its affiliates and any
of their respective officers, employees or other
representatives shall not exercise discretionary
authority or discretionary control in connection
with effecting sales under this Trading Plan,
except pursuant to the Sales Instructions under
this Trading Plan or the express provisions of
this Trading Plan.
(k) Exclusivity. Seller agrees that until this Trading
Plan has been terminated, Seller shall not establish any
other Rule 10b5-1 trading plans with respect to the
Stock, other than the Merrill Lynch Plan.
(l) Acknowledgment of Relief from Obligation to
Effect Sales. Seller acknowledges and agrees
that UBS PaineWebber shall be relieved of its
obligation to sell Stock as otherwise required
by paragraph 1 above at any time when:
(i) UBS PaineWebber has determined that (A)
a material adversechange in the financial
markets, in the market activity in Issuer or
in the internal systems of UBS PaineWebber
or one of its affiliates, an outbreak or
escalation of hostilities or other crisis or
calamity has occurred (in each case, the
effect of which is such as to make it, in
the sole judgment of UBS PaineWebber,
impracticable for UBS PaineWebber to sell
Stock); or (B) a trading suspension with
respect to the Stock by the Securities and
Exchange Commission or New York Stock
Exchange ("Primary Exchange"), a delisting
of the Stock by the Primary Exchange, or a
banking moratorium has occurred;
(ii) UBS PaineWebber determines, in its sole
discretion, that it is prohibited from doing
so by a legal, contractual or regulatory
restriction applicable to it or its affiliates
or to Seller or Seller's affiliates;
(iii) UBS PaineWebber suspends this Trading
Plan in accordance with paragraph 6 below;
(iv) This Trading Plan is terminated in
accordance with paragraph 7 below; or Seller
further acknowledges and agrees that if UBS
PaineWebber cannot effect a sale as required
by paragraph 1 above for any of such
reasons, UBS PaineWebber shall effect such
sale as promptly as practical after the
cessation or termination of such cause,
subject to the restrictions set forth in
paragraph 1 of Exhibit A.
(m) Seller agrees to notify UBS PaineWebber of
any amendment, modification or termination of
the Merrill Lynch Plan.
5. Rule 144 and Rule 145. With respect to sales of
Stock subject to Rule 144 or Rule 145, Seller and UBS
PaineWebber agree to comply with the following
provisions.
(a) Agreements by Seller Regarding Rule 144 and
Rule 145.
(i) Seller agrees not to take, and agrees
to cause any person or entity with
which Seller would be required to
aggregate sales of Stock pursuant to
Rule 144(a)(2) or (e) not to take, any
action that would cause the sales
hereunder not to meet all applicable
requirements of Rule 144 or Rule 145.
(ii) Seller agrees to complete, execute and
deliver to UBS PaineWebber Forms 144
for sales to be effected under the
Trading Plan at such times and in such
numbers as UBS PaineWebber shall
request.
(iii) Seller agrees to complete,
execute and deliver to UBS PaineWebber
Rule 144 Letters (in the form attached
hereto as Exhibit C) for sales to be
effected under the Trading Plan at such
times and in such numbers as UBS
PaineWebber shall request. (iv) Seller
will file such Forms 144 pursuant to
paragraph 5(a)(ii) above as required by
applicable law. Seller shall make one
Form 144 filing at the beginning of
each three-month period, commencing
upon the first Sale Day under the
Trading Plan.
(b) Agreements by UBS PaineWebber Regarding
Rule 144 and Rule 145.
(i) UBS PaineWebber agrees to conduct all
sales pursuant to the Trading Plan in
accordance with the manner of sale
requirement of Rule 144 and/or Rule
145. UBS PaineWebber shall not effect
any sales that it knows would exceed
the then-applicable volume limitation
under Rule 144 or Rule 145. UBS
PaineWebber has been advised that
Seller has entered into a Rule 10b5-1
trading plan with Merrill Lynch and
that together these sales will be in
compliance with Rule 144 volume
limitations.
6. Suspension. Sales under this Trading Plan shall
be suspended as follows:
(a) Promptly after the date on which UBS
PaineWebber receives notice from Seller or
Issuer of legal, contractual or regulatory
restrictions applicable to Seller or
Seller's affiliates that would prevent UBS
PaineWebber from selling Stock for Seller's
account during the Plan Sales Period (as
defined below) (such notice merely stating
that there is a restriction applicable to
Seller without specifying the reasons for
the restriction), including a restriction
based on Seller's awareness of material
nonpublic information in connection with a
tender offer for Issuer's securities
(transactions on the basis of which Rule 14e-
3 of the Exchange Act could be violated).
(b) In the event of a Qualifying Securities
Offering (as defined below), from the
Suspension Date until UBS PaineWebber
receives notice from Issuer of the
Resumption Date (each as defined below);
provided, however, that (i) UBS PaineWebber
has received reasonable notice of such
Qualifying Securities Offering from Seller
or Issuer; and (ii) Seller certifies that
Seller has no control over the date on which
the Preliminary Offering Document or
Underwriting Agreement (each, as defined
below) is filed, used, distributed or
executed, as the case may be.
(c) "Qualifying Securities Offering" means any
offering of securities of Issuer for cash in
which the lead underwriter, lead manager,
initial purchaser, placement agent or other
entity performing a similar function (each,
an "Underwriter") requires Seller to agree
to restrict Seller's ability to effect Sales
pursuant to this Trading Plan. "Suspension
Date" means the earlier of (i) the date on
which a preliminary prospectus, offering
memorandum, offering circular or other
disclosure document (each, a "Preliminary
Offering Document") is first used to market
securities of Issuer by the Underwriter or
(ii) if no such offering document is used in
connection with a Qualifying Securities
Offering, the date on which the underwriting
agreement, purchase agreement, placement
agent agreement or similar agreement (each,
an "Underwriting Agreement") is entered into
by the Underwriter and Issuer. "Resumption
Date" means the day immediately following
the expiration of the time period during
which Seller was restricted from effecting
Sales pursuant to this Trading Plan in
accordance with the Underwriting Agreement.
(d) During any "blackout" period declared
by Issuer ("Blackout Period"); provided,
however, that (i) Seller certifies that
Seller has no control over the timing or
duration o the Blackout Period under which
sales are to be suspended and (ii) UBS
PaineWebber has received reasonable notice
of the timing and duration of such Blackout
Period from Seller or Issuer (such notice
merely stating that there is a restriction
applicable to Seller without specifying the
reasons for the restriction). Sales under
this Trading Plan shall be resumed promptly
following the expiration of the time period
during which Seller was restricted from
effecting Sales pursuant to this Trading
Plan in accordance with such Blackout
Period.
(e) In the event that the UBS PaineWebber 10b51
Group becomes aware of material nonpublic
information concerning Issuer or the Stock,
UBS PaineWebber may be required by
applicable law or, in its sole discretion,
find it advisable, to suspend sales under
this Trading Plan. In such case, UBS
PaineWebber shall promptly notify Seller of
the suspension of sales under this Plan.
7. Effectiveness and Termination. This Trading
Plan is effective as of the date first written above
and will terminateon the earliest to occur of the
following (the "Plan Sales Period"):
(a) On February 28, 2003 ("Termination Date");
(b) promptly after the date on which UBS
PaineWebber receives notice from Seller of the
termination of this Trading Plan; provided,
however, that such notice shall be accompanied by
a certification from Seller that Seller has
notified Issuer in writing of such termination;
(c) upon the determination by UBS PaineWebber,
or promptly after the determination by
Seller and notice to UBS PaineWebber (either
of which determinations must be reasonable),
that this Trading Plan does not comply with
Rule 10b5-1; or
(d) promptly after the date UBS PaineWebber is
notified of the death of Seller.
(e) Promptly after UBS PaineWebber is notified that
the Merrill Lynch Plan has been amended, modified or
terminated.
8. Indemnification; Limitation of Liability.
(a) Indemnification.
(i) Seller agrees to indemnify and hold
harmless UBS PaineWebber and its directors, officers, employees
and affiliates from and against all claims,
losses, damages and liabilities (including, without
limitation, any legal or other expenses reasonably
incurred in connection with defending or investigating
any such action or claim) arising out of or
attributable to UBS PaineWebber's actions taken
or not taken in compliance with this Trading Plan,
arising out of or attributable to any breach by Seller
of this Trading Plan (including Seller's
representations and warranties hereunder), or any
violation by Seller of applicable laws or regulations.
This indemnification shall survive termination of this
Trading Plan.
(ii) UBS PaineWebber agrees to indemnify and hold
harmless Seller from and against all claims, losses,
damages and liabilities(including, without limitation,
any legal or other expenses reasonably incurred in
connection with defending or investigating any such
action or claim) arising out of or attributable to the
gross negligence or willful misconduct of UBS
PaineWebber in connection with this Trading Plan.
(b) Limitation of Liability.
(i) Notwithstanding any other provision
hereof, UBS PaineWebber shall not be
liable to Seller, and Seller shall not
be liable to UBS PaineWebber, for: (A)
special, indirect, punitive, exemplary
or consequential damages, or incidental
losses or damages of any kind, even if
advised of the possibility of such
losses or damages or if such losses or
damages could have been reasonably
foreseen; or (B) any failure to perform
or to cease performance or any delay in
performance that results from a cause
or circumstance that is beyond its
reasonable control, including, but not
limited to, failure of electronic or
mechanical equipment, strikes, failure
of common carrier or utility systems,
severe weather, market disruptions or
other causes commonly known as "acts of
God"
(ii) Notwithstanding any other provision
hereof, UBS PaineWebber shall not be
liable to Seller for (A) the exercise
of discretionary authority or
discretionary control under this
Trading Plan, if any, or (B) any
failure to effect a sale required by
paragraph 1, except for failures to
effect sales as a result of the gross
negligence or willful misconduct of UBS
PaineWebber.
9. Agreement to Arbitrate. Any dispute between
Seller and UBS PaineWebber arising out of, relating to
or in connection with this Trading Plan or any
transaction relating to this Trading Plan shall be
determined only by arbitration as provided in the UBS
PaineWebber brokerage account agreement referred to in
paragraph 4(a) above.
10. Notices.
(a) All notices to UBS PaineWebber under this
Trading Plan shall be provided to Jason
Madden, UBS PaineWebber in the manner
specified by this Trading Plan by facsimile
at 212-821-5536.
(b) All notices to Seller under this Trading Plan
shall be given to David A. Jones in the manner
specified by this Trading Plan by telephone 502-580
3650, by facsimile at 502-580-3698 or by certified
mail to the address below:
David A. Jones
500 W. Main St.
Louisville, KY 40202
11. Amendments and Modifications. This Trading Plan
may be amended by Seller only upon the written
consent of UBS PaineWebber and receipt by UBS
PaineWebber of the following documents, each
dated as of the date of such amendment:
(a) a certificate signed by Seller,
certifying that the representations and
warranties of Seller contained in this
Trading Plan are true at and as of the
date of such certificate as if made at
and as of such date; and
(b) an issuer certificate completed by
Issuer substantially in the form of
Exhibit B hereto.
12. Assignment. Seller's rights and obligations
under this Trading Plan may not be assigned or
delegated without the written permission of UBS
PaineWebber.
13. Inconsistency with Law. If any provision of this
Trading Plan is or becomes inconsistent with any
applicable present or future law, rule or regulation,
that provision will be deemed modified or, if
necessary, rescinded in order to comply with the
relevant law, rule or regulation. All other
provisions of this Trading Plan will continue and
remain in full force and effect.
14. Governing Law. This Trading Plan shall be
governed by and construed in accordance with the
internal laws of the State of New York and may be
modified or amended only by a writing signed by the
parties hereto.
15. Entire Agreement. This Trading Plan, including
Exhibits and the brokerage account agreement referred
to in paragraph 4(a) above, constitutes the entire
agreement between the parties with respect to this
Trading Plan and supercedes any prior agreements or
understandings with regard to this Trading Plan.
16. Counterparts. This Trading Plan may be signed in
any number of counterparts, each of which shall be an
original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
NOTICE: THIS AGREEMENT CONTAINS A PREDISPUTE
ARBITRATION CLAUSE IN PARAGRAPH 9.
IN WITNESS WHEREOF, the undersigned have signed this
Trading Plan as of the date first written above.
/s/ David A. Jones
__________________________________________
Name: David A. Jones
Title: Chairman of the Board
UBS PAINEWEBBER INCORPORATED
/s/ Rick Sommer
__________________________________________
Name: Rick Sommer
Title: Senior Vice President
EXHIBIT A
This Exhibit A may not be amended except in
accordance with the Trading Plan.
SPECIFIC INSTRUCTIONS
1. UBS PaineWebber shall enter a Sell Order for a
specified Sale Amount (as defined below) for the
account of Seller on each specified Sale Day (as
defined below) at the specified Sale Price (as defined
below), subject to the following restrictions:
In no event shall UBS PaineWebber sell any shares
of Stock pursuant to the Trading Plan prior to
April 1, 2002 ("Effective Date").
2. A "Sale Day" shall be any Trading Day during the
months of April 2002, June 2002, August 2002, October
2002, December 2002, and February 2003 ("Plan Sales
Period") that the limit price specified below is met.
UBS PaineWebber shall enter the order before the
opening on the first Trading Day of the month.
3. The "Sale Amount" for any month of the Plan Sales
Period shall be up to Eighty Thousand (80,000) shares
of Common Stock of Humana Inc. not to exceed Four
Hundred Eighty Thousand (480,000) shares over the term
of the Trading Plan.
4. The Sale Price shall be a limit price, such that
sales should only be effected if the market price on
the Sale Day is greater than or equal to Thirteen
Dollars $13.00 per share.
5. If a limit order is entered pursuant to this
Trading Plan it will be entered as a GTC order (good
until cancelled), provided, however, that no GTC
orders will last beyond the close of the last Trading
Day of the calendar month during which the order was
entered, at which time any GTC order that has not been
filled will be cancelled.
6. The Sale Amount and the Sale Price shall be
adjusted automatically on a proportionate basis to
take into account any stock split, reverse stock split
or stock dividend with respect to the Stock or any
change in capitalization with respect to Issuer that
occurs while the Trading Plan is in effect.
7. The term "Stock" as used in the Trading Plan
shall include any class or series of common stock of
Issuer into which the Stock shall be converted whether
pursuant to a reclassification, reorganization,
reincorporation or similar event.
8. A "Trading Day" is any day during the Plan Sales
Period that the Primary Exchange (the "Principal U.S.
Market") is open for business and the Stock trades
regular way on the principal U.S. market; provided,
however, that a "Trading Day" shall mean only that
day's regular trading session of the Principal U.S.
Market and shall not include any extended-hours or
after-hours trading sessions that the Principal U.S.
Market may allow.
9. UBS PaineWebber may sell Stock on any national
securities exchange, in the over-the-counter market,
on an automated trading system or otherwise.
10. UBS PaineWebber may, in its sole discretion,
elect to act as principal in executing sales under
the Trading Plan.
EXHIBIT B
This Exhibit B may not be amended except in
accordance with the Trading Plan.
ISSUER CERTIFICATE
1. Humana Inc. ("Issuer") certifies that it has
approved, and retained a copy of, the Trading Plan dated
March 4, 2002 (the "Trading Plan") between
David A. Jones ("Seller") and UBS PaineWebber
Incorporated ("UBS PaineWebber") relating to the
common stock, par value $0.1667 per share, of Issuer
(the "Stock").
2. The Trading Plan is consistent with Issuer's
insider trading policies, and, to the best of Issuer's
knowledge, there are no legal, contractual or
regulatory restrictions applicable to Seller or
Seller's affiliates as of the date of this
representation that would prohibit either Seller from
entering into the Trading Plan or any sale pursuant to
the Trading Plan.
3. During the Plan Sales Period, Issuer agrees to
provide notice as soon as practicable to UBS
PaineWebber in the event of:
(a) a Qualifying Securities Offering and of the
corresponding Suspension Date and Resumption
Date (each as defined in the
Trading Plan); or
(b) a legal, contractual or regulatory
restriction applicable to Seller or Seller's
affiliates that would prohibit any sale
pursuant to the Trading Plan (such notice
merely stating that there is a restriction
applicable to Seller without specifying the
reasons for such restriction). Such
restrictions shall include, without
limitation, any restriction relating to
Seller's possession of material nonpublic
information in connection with a tender
offer for Issuer's securities, transactions
on the basis of which would violate Rule 14e-
3 of the Exchange Act.
(c) A Blackout Period (as defined in the
Trading Plan).
(d) Issuer learning that the Merrill Lynch Plan
(as defined in this Trading Plan) has been
amended, modified or terminated. Such
notice shall be provided by facsimile to
Jason Madden, UBS PaineWebber, at 212-821
5536 and shall indicate the anticipated
duration of the restriction but shall not
include any other information about the
nature of the restriction or its
applicability to Seller. In any event,
Issuer shall not communicate any material
nonpublic information about Issuer or its
securities to UBS PaineWebber with respect
to the Trading Plan.
4. To avoid delays in connection with transfers of
stock certificates and settlement of transactions
under the Trading Plan, and in acknowledgment of UBS
PaineWebber's agreement in paragraph 5(b) of the
Trading Plan that sales of Stock under the Trading
Plan will be effected in compliance with Rule 144,
Issuer agrees that it will, immediately upon Seller's
directing delivery of Stock into an account at UBS
PaineWebber in the name of and for the benefit of
Seller, instruct its transfer agent to process the
transfer of shares and issue a new certificate to
Seller that does not bear any legend or statement
restricting its transferability to a buyer.
Dated: March 4, 2002
/s/ Arthur P. Hipwell
By:______________________________________
Arthur P. Hipwell
Senior Vice President & General Counsel
EXHIBIT C
This Exhibit C may not be amended except in
accordance with the Trading Plan
RULE 144 LETTER
UBS PaineWebber Incorporated Arthur P. Hipwell
Attn: Jason Madden Sr. Vice President &
299 Park Ave, 26th floor General Counsel
New York, NY 10171 Humana Inc.
500 W. Main St.
Louisville, KY 40202
Ladies and Gentlemen:
In conjunction with my order to sell shares of common
stock, par value $0.1667 per share, of Humana Inc.
("Issuer") ("the Stock"), through you as broker or
dealer for my account pursuant to the Rule 10b5-1
Trading Plan dated March 4, 2002 (the "Trading Plan"),
under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), I advise you as follows:
1.During the next twelve (12) months following the
date of this letter, I intend to sell Stock pursuant
to Rule 10b5-1. I intend for UBS PaineWebber to
adhere to the Trading Plan without alteration or
modification during the above-stated period.
2. I am an affiliate of the Issuer.
3. The number of shares of Stock, which I have ordered
you to sell as broker or dealer for my account, will
conform to the Sales Instructions in Exhibit A of
the Trading Plan.
4. I have verified that Issuer has been subject to the
Securities and Exchange Commission (the "SEC")
information reporting requirements pursuant to the
Exchange Act for at least the preceding 90 days and
has filed all required periodic reports during the
12 months preceding the first sale or during any
shorter period that the SEC may require. As of the
date of the Trading Plan, I did not know of any
material nonpublic information concerning Issuer.
5. I confirm that I have been the beneficial owner for
a period of at least one year as provided in
paragraph (d) of Rule 144.
6. a) I have not solicited or arranged for the
solicitation of any orders to buy in anticipation or
in connection with my proposed sales.
b) I have made no payments to any other person in
connection with your execution of my order.
c) I have not agreed to act in concert with any
other person in connection with my proposed sales.
7. It is my bona fide intention to sell the Stock as
expressly prescribed in the Trading Plan pursuant to
the Plan.
8. I understand that the payment of the proceeds of
the sales will be delayed until the shares of Stock
are transferred and delivered free of restrictions
to UBS PaineWebber.
9. All capitalized terms used in this Rule 144 Letter
shall have the meanings ascribed to them in the
Trading Plan.
The undersigned agrees to notify UBS PaineWebber
immediately if any of the above representations
become inaccurate before the sales are completed.
Very truly yours,
/s/ David A. Jones David A. Jones
Print Name
Signature of the Seller
500 W. Main St.,Louisville, KY 40202 March 4, 2002
Seller's Address Date