EX-2.1 2 exhibit21.htm EX-2.1 Document
 
 
 
 
2019 ING Group Annual Report on Form 20-F
 
1
 
 
 
DESCRIPTION OF SECURITIES
REGISTERED UNDER SECTION 12 OF THE EXCHANGE
 
ACT
 
As of 31 December 2019 ING Groep N.V.
 
(“
ING
,” the “
Company
,” “
we
,” “
us
,” and “
our
”) had the following series of securities registered pursuant
 
to Section 12(b) of
the Act:
Title of each class
Trading symbols
Name of each exchange on which registered
American Depositary Shares
ING
New York Stock Exchange
Ordinary shares
 
New York Stock Exchange
(i)
6.125% ING Perpetual Debt Securities
ISG
New York Stock Exchange
3.150% Fixed Rate Senior Notes
 
due 2022
ING22
New York Stock Exchange
3.950% Fixed Rate Senior Notes
 
due 2027
ING27
New York Stock Exchange
Floating Rate Senior Notes due 2022
ING22A
New York Stock Exchange
Floating Rate Senior Notes due 2023
ING23A
New York Stock Exchange
4.100% Fixed Rate Senior Notes
 
due 2023
ING23
New York Stock Exchange
4.550% Fixed Rate Senior Notes
 
due 2028
ING28
New York Stock Exchange
3.550% Fixed Rate Senior Notes
 
due 2024
ING24
New York Stock Exchange
4.050% Fixed Rate Senior Notes
 
due 2029
ING29
New York Stock Exchange
 
(i)
 
Not for trading,
 
but only in connection with
 
the registration
 
of American Depositary Shares
 
representing such ordinary
 
shares, pursuant to
 
the requirements of
the Securities and Exchange Commission.
Capitalized terms used but not defined herein
 
have the meanings given to
 
them in ING’s annual report
 
on Form 20-F for the fiscal year ended 31 December 2019.
ORDINARY SHARES
The general meeting of shareholders of ING is referred to as the “
General Meeting
,” which term refers to both the body consisting of shareholders and other persons
entitled to vote as well as the meeting of shareholders and other persons
 
entitled to attend meetings. This section summarizes
 
all the material terms of our ordinary
shares, including summaries of certain provisions of our articles of association
 
and applicable Dutch law in effect on the date
 
hereof. They do not, however,
 
describe
every aspect
 
of the ordinary
 
shares, the
 
articles of association
 
or Dutch law.
 
References
 
to provisions
 
of our articles
 
of association
 
are qualified in
 
their entirety
 
by
reference
 
to the
 
full articles
 
of association,
 
an English
 
translation
 
of which
 
has been
 
filed as
 
an exhibit
 
to our
 
annual report
 
on
 
Form 20-F
 
for the
 
year ended
 
31
December, 2019,
 
as Exhibit 1.1 (incorporated by
 
reference to ING’s
 
Report on Form 6-K furnished on 6 January 2017).
 
General
As at 31
 
December,
 
2019, our authorized
 
share capital
 
was divided
 
into 14,729,000,000
 
ordinary shares,
 
with a nominal
 
value of
 
EUR 0.01 per
 
ordinary share,
 
and
4,571,000,000 cumulative preference
 
shares with a nominal value
 
of EUR 0.01 per cumulative preference
 
share. The ordinary shares and
 
the cumulative preference
shares are each in registered form. The outstanding
 
ordinary shares are fully paid and non-assessable. As at 31 December,
 
2019, 3,896,734,271 ordinary shares were
issued and outstanding. In addition, as at 31 December,
 
2019, no cumulative preference
 
shares were issued and outstanding.
 
Articles of Association
 
ING is a holding
 
company organised
 
under the laws
 
of the Netherlands.
 
Its object and purpose,
 
as set forth
 
in article 3 of its
 
Articles of Association,
 
is to participate
in, manage,
 
finance, furnish
 
personal or
 
real security
 
for the
 
obligations
 
of and
 
provide services
 
to other
 
enterprises and
 
institutions of
 
any kind,
 
but in
 
particular
enterprises and
 
institutions which
 
are active
 
in the field
 
of lending, the
 
financial markets,
 
investment
 
and/or other
 
financial services,
 
and to
 
engage in
 
any activity
which may
 
be related
 
or conducive
 
to the
 
foregoing. ING
 
is registered
 
under file
 
number 33231073
 
with the
 
Trade
 
Register of
 
the Chamber
 
of Commerce
 
and the
Articles of Association are available there
 
and on ING’s website.
 
Certain Powers of Directors
 
The Supervisory
 
Board
 
determines
 
the
 
compensation
 
of
 
the
 
members
 
of the
 
Executive
 
Board
 
within
 
the
 
framework
 
of the
 
remuneration
 
policy
 
adopted
 
by
 
the
General Meeting
 
and the compensation
 
of members
 
of the Supervisory
 
Board is
 
determined by the
 
General Meeting.
 
Without prejudice
 
to their voting
 
rights they
may have if they are a shareholder of ING , neither members of the
 
Executive Board nor members of the Supervisory Board will vote on compensation for themselves
or any other member of their body.
 
During the term of their office,
 
members of the Supervisory Board
 
are not allowed to borrow
 
or to accept guarantees
 
from ING or any
 
of its subsidiaries. Loans that
already exist upon
 
appointment as a member of
 
the Supervisory Board however,
 
may be continued.
 
Subsidiaries of ING however,
 
may in the normal
 
course of their
business and
 
on terms
 
that are
 
customary
 
in the
 
sector,
 
provide other
 
banking and
 
insurance
 
services to
 
members of
 
the Supervisory
 
Board. These
 
services may
include services in which
 
the granting of
 
credit is of a
 
subordinate nature,
 
e.g. credit cards
 
and overdrafts
 
in current accounts.
 
Members of the
 
Executive Board
 
are
empowered to
 
exercise
 
all the powers
 
of ING to
 
borrow money
 
on behalf of
 
ING, subject
 
to regulatory
 
restrictions (if
 
any) and,
 
in the case
 
of the issuance
 
of debt
securities, to the approval of the Supervisory Board.
Members of
 
the Supervisory
 
Board and
 
members of
 
the Executive
 
Board with
 
a conflict
 
of interest
 
may not
 
participate in
 
the decision-making
 
with respect
 
to the
matter or transaction to
 
which the conflict of interest relates,
 
and the votes of such members shall not be taken
 
into account.
The Articles of Association do
 
not contain any age limits for retirement of
 
the members of the Executive Board and
 
members of the Supervisory Board.
 
The retirement
age for members of the Executive
 
Board under the (Dutch) pension plan is the first
 
day of the month that the individual reaches the age of 67.
 
Members of the Executive Board
 
are appointed by the General Meeting for
 
a term of four years and
 
may be reappointed.
 
Supervisory Board members
 
shall be nominated for
 
appointment for
 
a maximum of four
 
years and may
 
be reappointed once
 
for another four
 
-year period. Without
prejudice to any
 
current term
 
of appointment which
 
commenced before
 
1 January 2017,
 
Supervisory Board members
 
may be nominated
 
for reappointment
 
for an
additional period of two years, which period may subsequently be extended by at most two years.
 
In the event of a reappointment after having served for two terms
of four years
 
or more, reasons
 
must be given in
 
the report of the Supervisory
 
Board. The Supervisory Board
 
may deviate from
 
the above in special
 
circumstances at
its discretion.
Both
 
members
 
of the
 
Executive
 
Board
 
and
 
members
 
of the
 
Supervisory
 
Board
 
are
 
appointed
 
from
 
a
 
binding
 
nomination
 
by
 
the Supervisory
 
Board.
 
The General
Meeting may declare the
 
nomination non-binding
 
by a resolution passed
 
by an absolute majority
 
of the votes cast,
 
which majority represents more
 
than half of the
issued share capital. Members of the Executive
 
Board and the Supervisory Board are not required
 
to hold any shares of ING to qualify
 
as such.
 
Restrictions on share ownership
 
As of
 
31 December
 
2019 there
 
were no
 
limitations under
 
Dutch law
 
or the
 
Articles of
 
Association on
 
the right
 
to own
 
Ordinary Shares,
 
including the
 
right of
 
non-
Dutch nationals or residents rights to
 
hold or exercise voting rights.
General Meeting
 
Frequency, notice and agenda
 
of General Meetings
 
ING’s General Meeting is normally held each year in April or May to discuss the course of business in the preceding financial year on the
 
basis of the reports prepared
by the Executive Board and
 
the Supervisory Board, and to decide on:
• The distribution of dividends or other distributions;
 
• The appointment and/or reappointment
 
of members of the Executive Board
 
and the Supervisory Board;
• Any other items requiring shareholder approval
 
pursuant to Dutch law; and
 
• Any other matters proposed
 
by the Supervisory Board, the Executive Board
 
or shareholders in accordance with the Articles
 
of Association.
General Meetings are convened
 
by public notice via the ING website (www.ing.com)
 
at least 42 days before
 
the day of the General Meeting.
 
2019 ING Group Annual Report on Form 20-F
 
2
 
 
 
As provided
 
for in
 
the Dutch
 
Civil Code,
 
implementing the
 
Bank Recovery
 
and Resolution
 
Directive (“
BRRD
”), ING’s
 
Articles of
 
Association permit
 
this convocation
period to be shortened to 10 days if (i) ING meets the criteria for early intervention
 
measures; (ii) resolution can be avoided by means of a capital
 
increase; and (iii) a
General Meeting would be required
 
to enable
 
ING to issue the required number of shares.
 
As of the
 
date of convening a General Meeting,
 
all information relevant for shareholders is made
 
available via the ING
 
website and through its head
 
office. Information
relevant for shareholders includes the notice of the General Meeting,
 
the agenda with instructions on how
 
to participate in the meeting (either
 
in person or by proxy),
the place and time of the meeting, the address of the website of ING, the explanatory notes to the agenda including the verbatim text of the proposals, as well as the
reports of the Executive Board and
 
the Supervisory Board.
 
Proposals by shareholders
 
Proposals to include items
 
on the agenda for
 
a General Meeting that
 
have been adequately
 
substantiated
 
under applicable Dutch law
 
can be made by shareholders
representing together at least
 
one per cent of the issued share capital, subject
 
to a 60 days’ notice period.
Record date
 
Pursuant to
 
Dutch law,
 
the record
 
date for
 
attending a
 
General Meeting and
 
voting on the
 
proposals at
 
that General Meeting
 
is the 28th
 
day before
 
the day of
 
the
General
 
Meeting.
 
Only those
 
who hold
 
shares
 
at
 
the record
 
date
 
are
 
entitled
 
to
 
attend
 
the General
 
Meeting
 
and to
 
exercise
 
other
 
rights
 
related
 
to
 
the General
Meeting in question on the basis of their holding
 
at the record date,
 
notwithstanding any subsequent
 
sale or purchase of shares. The record
 
date is published in the
notice for the
 
General Meeting.
 
If the shortened
 
convocation
 
of 10 days
 
is applicable (see
 
above, paragraph:
 
‘Frequency,
 
notice and agenda
 
of General Meetings’),
the record date is two days
 
after the convocation date.
 
In accordance with US requirements, the
 
depositary sets a record date for
 
the ADRs, which date determines which ADRs
 
are entitled to give voting instructions.
 
This
record date
 
can differ from the record
 
date set by ING for shareholders.
Attending General Meetings
 
Shareholders may
 
attend a
 
General Meeting in
 
person, or may
 
grant a proxy
 
in writing to a
 
third party to
 
attend the meeting
 
and to vote
 
on their behalf.
 
Prior to a
General Meeting, ING will make proxy
 
forms available on its website.
 
For logistical reasons,
 
attendance at the
 
General Meeting by
 
holders of ING’s
 
ordinary shares, either in
 
person or by proxy,
 
is subject to the requirement
 
that ING is
notified in advance. Instructions to that
 
effect are included in the notice for
 
the General Meeting.
 
General Meetings are webcast
 
via ING’s website
 
www.ing.com, so
 
that shareholders who do not
 
attend the General
 
Meeting in person may
 
nevertheless follow the
meeting online.
Voting rights on shares
 
Each share entitles
 
the holder to cast
 
one vote at the
 
General Meeting. The
 
Articles of Association
 
do not restrict the
 
voting rights on
 
any class of shares.
 
ING is not
aware of any agreement pursuant
 
to which voting rights on any class of its shares
 
are restricted.
 
Proxy voting facilities
 
ING provides proxy voting
 
facilities to its investors
 
via its website and solicits proxies from
 
its ADR holders in line with common practice in the US.
Proxy voting
 
forms for shareholders
 
are made available
 
on the website
 
of ING (www.ing.com).
 
By returning the
 
form, shareholders
 
give a proxy
 
to an independent
proxy holder (a public notary registered
 
in the Netherlands) who will vote according
 
to the instructions expressly
 
given on the proxy form.
 
The submission of these forms is subject to additional
 
conditions specified on such forms.
 
To encourage participation at the General Meeting, ING provides the EVO (e-voting) platform, an online facility through which shareholders can register for a
 
meeting
or appoint a proxy.
Main powers of the General Meeting
 
The main powers of the General Meeting are
 
to decide on:
●
 
the appointment of
 
members of the
 
Executive Board
 
and members
 
of the Supervisory
 
Board, subject to
 
a binding nomination
 
of the Supervisory
 
Board as
set forth in the Articles of Association;
●
 
the suspension and dismissal of members of the Executive
 
Board and members of the Supervisory Board;
●
 
the adoption of the financial statements;
●
 
the declaration of dividends,
 
subject to the
 
power of the Executive Board
 
to allocate part or
 
all of the
 
profits to the reserves -
 
with approval of the
 
Supervisory
Board - and the declaration of other distributions,
 
subject to a proposal by the Executive
 
Board and approved by the Supervisory Boar
 
d.
 
●
 
the appointment of the external auditor;
●
 
an amendment of the Articles of Association, a legal merger or division of ING, and winding-up of ING, all subject to a proposal made by the Executive Board
with approval by the Supervisory Board;
●
 
the issuance of shares or rights to subscribe for shares, the restriction
 
or exclusion of pre-emptive rights of shareholders,
 
and delegation of these powers to
the Executive Board, subject to a proposal
 
by the Executive Board that
 
has been approved by the Supervisory Board;
●
 
the authorisation
 
of a
 
repurchase
 
of outstanding
 
shares and/or
 
a cancellation
 
of shares.
 
In addition,
 
the approval
 
of the
 
General Meeting
 
is required
 
for
Executive Board decisions that would
 
be expected to have a material
 
effect on the identity or nature
 
of ING or its enterprise.
 
Reporting
 
Resolutions adopted at a General Meeting are
 
generally published on the website of ING (www.ing.com)
 
within one week following the meeting. In accordance
 
with
the Dutch Corporate Governance
 
Code, the draft minutes of the General
 
Meeting are made available to
 
shareholders on the website
 
of ING (www.ing.com) no
 
later
than three months
 
after the meeting.
 
Shareholders may
 
react to the
 
draft minutes
 
in the following
 
three months,
 
after which the
 
final minutes are
 
adopted by
 
the
chairman of the
 
meeting in question
 
and by a
 
shareholder appointed
 
by that meeting.
 
The final minutes
 
are made available
 
on the website
 
of ING (www.ing.com).
By exception to
 
the provisions of the Dutch
 
Corporate Governance Code,
 
shareholders will not have
 
the opportunity to react to
 
the minutes of a General Meeting
 
if
a notarial report of the meeting is made, as this would
 
be in conflict with laws applicable to such
 
notarial report.
Capital and shares
 
Capital structure
 
The authorised capital of ING
 
consists of ordinary shares
 
and cumulative preference
 
shares. Currently,
 
only ordinary shares are issued,
 
while a call option to acquire
cumulative
 
preference
 
shares
 
has
 
been
 
granted
 
to
 
the
 
ING
 
Continuity
 
Foundation
 
(
Stichting
 
Continuïteit
 
ING
).
 
The
 
acquisition
 
of
 
cumulative
 
preference
 
shares
pursuant
 
to
 
the
 
call
 
option
 
is
 
subject
 
to
 
the
 
restriction
 
that,
 
immediately
 
after
 
the
 
issuance
 
of
 
cumulative
 
preference
 
shares,
 
the
 
total
 
amount
 
of
 
cumulative
preference
 
shares
 
outstanding
 
may not
 
exceed
 
one third
 
of the
 
total
 
issued share
 
capital
 
of ING.
 
The purpose
 
of this
 
call option
 
is to
 
protect
 
the independence,
continuity and
 
identity of
 
ING against
 
influences that
 
are contrary
 
to the
 
interests of
 
ING, its
 
enterprise and
 
the enterprises
 
of its subsidiaries
 
and all stakeholders
(including, but not limited to, hostile takeovers).
 
However,
 
the ordinary shares are not used for protective
 
purposes.
 
The board of
 
the ING Continuity
 
Foundation is
 
comprised of three
 
members who are
 
independent of
 
ING. Under the
 
terms of the
 
articles of association
 
of the ING
Continuity Foundation, the following persons
 
may not be appointed to the board of the ING Continuity Foundation:
 
(i) a current or former Executive Board
 
member,
(ii) a current
 
or former
 
Supervisory Board
 
member,
 
(iii) a spouse
 
or relative
 
by blood
 
or marriage
 
up to
 
the fourth
 
remove of
 
a member
 
of the
 
Executive
 
Board or
Supervisory Board of
 
ING and/or its
 
subsidiaries, (iv) a
 
current or former
 
ING employee, (v)
 
a current permanent
 
adviser to ING,
 
(vi) a former permanent
 
adviser to
ING during
 
the first
 
three years
 
after the
 
termination
 
of his
 
engagement
 
as an
 
adviser,
 
or (vii)
 
a director
 
or employee
 
of a
 
bank with
 
which ING
 
has a
 
lasting and
significant relationship.
 
The board
 
of the
 
ING Continuity
 
Foundation appoints
 
its own
 
members, after
 
consultation
 
with the
 
Supervisory Board
 
of ING, but
 
without
any requirement for approval
 
by ING.
 
ING’s authorised
 
capital is the maximum
 
amount of capital
 
allowed to be issued
 
under the terms of the
 
Articles of Association.
 
New shares in excess
 
of this amount
can only be issued if the Articles of Association are amended. For reasons of flexibility
 
and to meet the requirement as set forth in the Bank Resolution
 
and Recovery
Directive (‘BRRD’)
 
that the
 
amount of
 
authorised share
 
capital should
 
at all times
 
be sufficient
 
to permit
 
the issuance
 
of as many
 
ordinary shares
 
as required
 
for a
potential future
 
bail-in, ING
 
seeks to
 
set the
 
authorised capital
 
in the
 
Articles of
 
Association at
 
the highest
 
level permitted
 
by law,
 
which is
 
five times
 
the actually
issued share capital.
Issuance of shares
 
 
2019 ING Group Annual Report on Form 20-F
 
3
 
 
 
Share issuances are decided
 
by the General
 
Meeting, which may
 
also delegate its authority. Each year, a proposal is
 
made to the
 
General Meeting to delegate
 
authority
to the
 
Executive
 
Board to
 
issue new
 
ordinary shares
 
or to
 
grant
 
rights to
 
subscribe to
 
new ordinary
 
shares, both
 
with and
 
without pre-emptive
 
rights for
 
existing
shareholders.
 
The set-up and content
 
of the currently applicable
 
share issue authorisation have
 
been discussed with many
 
investors, proxy
 
advisors and other stakeholders
 
in the
context of
 
the corporate
 
governance review
 
of 2016
 
and in
 
the general
 
meetings of
 
2016 and
 
subsequent years;
 
their feedback
 
has been
 
taken
 
into account.
 
The
current share issue authorisation
 
enables the Executive Board
 
to issue new ordinary shares (including
 
the granting of rights to
 
subscribe for ordinary shares,
 
such as
warrants or in connection with convertible debt instruments) for
 
a period of 18
 
months, ending on 23
 
October 2020 (or when
 
the authorisation is renewed, whichever
is earlier) subject to the following conditions
 
and limits:
 
●
 
No more than 40 percent of the issued share capital in
 
connection with a rights issue, being a
 
share offering to all shareholders in proportion to their existing
holdings of ordinary shares as nearly as may be practical. However,
 
the Executive Board and Supervisory Board may
 
exclude certain shareholders
 
from such
a share offering for practical or legal reasons such as record dates, fractional
 
entitlements, treasury shares, applicable legal restrictions on share offerings
 
or
in the context of a syndicated
 
rights issue; plus
 
●
 
No more than 10 percent of the issued share
 
capital, with or without pre-emptive rights
 
of existing shareholders.
Specific approval by the General Meeting
 
is required for any
 
share issuance exceeding these limits.
 
The purpose
 
of this
 
share
 
issue authorisation
 
is to
 
delegate
 
the
 
power
 
to
 
issue
 
new
 
ordinary
 
shares
 
to
 
the
 
Executive
 
Board.
 
Accordingly,
 
the
 
Executive
 
Board
 
is
authorised
 
to
 
issue
 
new
 
ordinary
 
shares
 
without
 
first
 
having
 
to
 
obtain
 
the
 
consent
 
of
 
the
 
General
 
Meeting,
 
which
 
in
 
the
 
Netherlands
 
is
 
subject
 
to
 
a
 
statutory
convocation period of at least 42 days. This authorisation
 
gives ING flexibility in managing its capital resources, including regulatory
 
capital, while taking into account
shareholders’
 
interests
 
to
 
prevent
 
dilution
 
of
 
their
 
shares.
 
It
 
particularly
 
enables
 
ING
 
to
 
respond
 
promptly
 
to
 
developments
 
in
 
the
 
financial
 
markets,
 
should
circumstances so require. The
 
Executive Board and the Supervisory Board
 
consider it in the best interest of ING
 
to have the flexibility this authorisation
 
provides.
This authorisation may be used for any
 
purpose, including but not limited to strengthening
 
capital, financing, mergers or acquisitions.
 
However,
 
the authorisation to
issue ordinary
 
shares by
 
way of
 
rights issue
 
cannot be
 
used for
 
mergers
 
or acquisitions
 
on a
 
stock-for-stock
 
basis as
 
this is
 
incompatible
 
with the
 
concept of
 
pre-
emptive rights for existing shareholders.
Shareholders who are
 
not allowed to,
 
do not elect to,
 
or are unable to
 
subscribe to a rights
 
offering, are entitled
 
to sell their rights
 
in the market
 
or receive any
 
net
financial benefit upon completion of a rump offering
 
after the exercise
 
period has ended.
Transfer of shares and transfer restrictions
 
Shares not
 
included in
 
the Securities
 
Giro
 
Transfer
 
Act system
 
(‘
Wet
 
Giraal Effectenverkeer
’ system)
 
are transferred
 
by means
 
of a
 
deed of
 
transfer
 
between the
transferor and the transferee.
 
To become effective,
 
ING has to acknowledge the transfer,
 
unless ING itself is a party to the transfer. The Articles of Association do not
restrict the transfer
 
of ordinary shares, whereas the transfer
 
of cumulative preference
 
shares is subject to prior approval
 
of the Executive Board. ING is
 
not aware of
the existence of any agreement
 
pursuant to which the transfer
 
of ordinary shares or American depositary
 
receipts for such shares is restricted.
 
Shares that are included
 
in the Securities
 
Giro Transfer system are transferred pursuant to the Securities Giro Transfer Act (
Wet Giraal Effectenverkeer
). A shareholder,
who wishes to transfer such
 
shares, must instruct the securities intermediary
 
where his shares are administered
 
accordingly.
Repurchase of shares
 
ING may repurchase issued shares. Although
 
the power to repurchase shares is vested
 
in the Executive Board subject to the approval
 
of the Supervisory Board, prior
authorisation from the General
 
Meeting is required for
 
these repurchases. Under Dutch
 
law, this
 
authorisation lapses after a
 
maximum of 18 months. For
 
ING, each
year,
 
a proposal is made to the General Meeting to authorise
 
the repurchase of shares by the Executive
 
Board subject to the approval of the Supervisory
 
Board for a
period of 18 months (or until the authorisation
 
is renewed, whichever is earlier).
 
Pursuant to the authorisation currently in force,
 
until 23 October 2020 (or until the authorisation is renewed, whichever
 
is earlier), no more than 10 percent of ING’s
issued share capital
 
may be held as
 
treasury shares. When repurchasing
 
shares, the Executive
 
Board must observe
 
the price ranges
 
prescribed in the authorisation.
For the ordinary shares, the authorisation currently in force stipulates
 
a minimum price of one eurocent and a maximum price equal to the highest stock price on the
Amsterdam stock exchange
 
on the date on which the purchase agreement
 
is concluded or on the preceding day of stock
 
market trading.
Special rights of control
 
No special rights
 
of control referred
 
to in Article
 
10 of the directive
 
of the European
 
Parliament and
 
the Council on takeove
 
r
 
bids (2004/25/EC) are
 
attached to
 
any
share.
Obligations of shareholders to disclose holdings
 
Pursuant to Section 5.3 of the Dutch
 
Financial Supervision Act (“
Major Holdings Rules
”), any person who,
 
directly or indirectly,
 
acquires or disposes of an interest
 
in
the voting rights and/or the capital
 
of (in short) a public limited company incorporated
 
under the laws of the Netherlands with an
 
official listing on a stock exchange
within the
 
European Economic
 
Area, as
 
a result
 
of which
 
acquisition or
 
disposal the
 
percentage of
 
voting rights
 
or capital
 
interest,
 
whether through
 
ownership of
ordinary shares, American depositary receipts (“
ADRs
”) or any other financial instrument, whether stock-settled or cash-settled, such as call or
 
put options, warrants,
swaps or any other similar contract,
 
reaches, exceeds or falls
 
below 3%, 5%, 10%, 15%, 20%, 25%, 30%, 40%, 50%,
 
60%, 75% or 95%. With respect to ING, the
 
Major
Holdings Rules would require any
 
person whose interest in the
 
voting rights and/or capital of
 
ING reached, exceeded or fell
 
below those percentage interests, whether
through ownership
 
of ordinary shares,
 
ADSs or any
 
other financial instrument
 
whether stock
 
settled or cash
 
settled, such as
 
call or put
 
options, warrants,
 
swaps or
any
 
other similar
 
contract,
 
to
 
notify in
 
writing the
 
Dutch
 
Authority
 
for
 
the Financial
 
Markets
 
(
Autoriteit
 
Financiële
 
Markten
) immediately
 
after
 
the
 
acquisition
 
or
disposal of the triggering interest in ING’s
 
share capital.
 
A notification requirement
 
also applies if a
 
person’s
 
capital interest
 
or voting rights reaches,
 
exceeds or falls
 
below the above-mentioned
 
thresholds as a
 
result of a
change in
 
ING’s
 
total
 
issued share
 
capital
 
or voting
 
rights.
 
Such notification
 
must be
 
made no
 
later than
 
the fourth
 
trading
 
day
 
after the
 
Dutch Authority
 
for the
Financial Markets has published ING’s
 
notification of the change in its issued share capital.
The notification will be recorded in a register
 
that is held by the Dutch Authority for
 
the Financial Markets and published on
 
its website.
Non-compliance with the obligations
 
of the Major Holdings Rules can lead to criminal prosecution
 
or administrative law sanctions.
 
In addition, a civil court can issue
orders
 
against
 
any
 
person
 
who fails
 
to
 
notify or
 
incorrectly
 
notifies the
 
Dutch
 
Authority
 
for
 
the Financial
 
Markets,
 
in
 
accordance
 
with the
 
Major
 
Holdings
 
Rules,
including suspension of the voting right in respect of such person’s
 
ordinary shares.
ING is not aware of
 
any investors (or potential shareholders) with an interest of three
 
percent or more in ING
 
other than those shown
 
in Item 7.
 
A ‘Major shareholders’
in ING’s annual
 
report on Form 20-F for the fiscal year ended 31 December
 
2019 as per year-end 2019.
Each person holding a
 
gross short position
 
in relation to the
 
issued share capital of
 
ING that reaches,
 
exceeds or falls below
 
any one of
 
the above-mentioned thresholds
must immediately give written notice to the AFM. If a person’s gross short position reaches, exceeds or falls below one of the
 
above-mentioned thresholds as a result
of a
 
change in
 
ING’s
 
issued share
 
capital, such
 
person must
 
make a
 
notification not
 
later than
 
the fourth
 
trading day
 
after the
 
AFM has
 
published the
 
Company’s
notification in the public register of the AFM.
In addition, pursuant
 
to Regulation
 
(EU) no. 236/2012
 
of the European
 
Parliament and
 
the Council on short
 
-selling and certain
 
aspects of credit
 
default swaps,
 
any
person who
 
acquires or
 
disposes of a
 
net short
 
position relating
 
to the issued
 
share capital
 
of ING, whether
 
by a transaction
 
in shares
 
or ADRs, or
 
by a transaction
creating or relating to any financial instrument
 
where the effect or one of the effects of the transaction
 
is to confer a financial advantage on the person entering
 
into
that transaction in
 
the event of a change
 
in the price of such
 
shares or ADRs, is
 
required to notify
 
the Dutch Authority for
 
the Financial Markets,
 
in accordance with
the provisions of the above-mentioned regulation if,
 
as a result of such acquisition or disposal the person’s
 
net short position reaches, exceeds or falls below 0.2% of
the issued
 
share
 
capital
 
of ING
 
and each
 
0.1% above
 
that. Each
 
reported
 
net short
 
position equal
 
to 0.5%
 
of the
 
issued share
 
capital
 
of ING
 
and any
 
subsequent
increase of that position by 0.1% will be made public via the short
 
selling register on the website of the Dutch
 
Authority for the Financial Markets.
Change of control provisions
 
Legal provisions
 
Pursuant to
 
the terms of
 
the Dutch
 
Financial Supervision
 
Act, a declaration
 
of no objection
 
from the ECB
 
must be obtained
 
by anyone
 
wishing to
 
acquire or hold
 
a
participating interest of at least 10 percent in ING and to exercise control attached to such a participating interest.
 
Similarly, on the basis of indirect change of control
statutes in the
 
various jurisdictions where subsidiaries
 
of ING are operating, permission
 
from, or notification to,
 
local regulatory authorities
 
may be required for
 
the
acquisition of a substantial interest
 
in ING.
Amendment of the Articles of Association
 
 
2019 ING Group Annual Report on Form 20-F
 
4
 
 
 
The General Meeting
 
may resolve
 
to amend the
 
Articles of Association
 
of ING, provided
 
that the resolution
 
is adopted based
 
on a proposal
 
of the Executive
 
Board,
which has been approved by the Supervisory Board.
 
An amendment of the Articles of Association is required
 
to be executed by notarial
 
deed.
 
 
 
 
 
 
 
 
 
 
 
 
 
2019 ING Group Annual Report on Form 20-F
 
5
 
 
 
 
DEBT SECURITIES
Each series
 
of notes listed
 
on the New
 
York
 
Stock Exchange
 
and set forth
 
on the cover
 
page to ING’s
 
annual report
 
on Form 20-F
 
for the
 
year ended
 
December 31,
2019 has
 
been issued
 
by ING.
 
Each
 
of these
 
series of
 
notes
 
was issued
 
pursuant
 
to an
 
effective
 
registration
 
statement
 
and a
 
related
 
prospectus
 
and prospectus
supplement setting forth the terms
 
of the relevant series of notes.
 
The following
 
table sets
 
forth the
 
dates of
 
the registration
 
statements,
 
dates of
 
the base
 
prospectuses and
 
dates of
 
issuance for
 
each relevant
 
series of notes
 
(the
“
Notes
”).
Series
Registration
Statement
Date of Base
Prospectus
Date of Issuance
6.125% ING Perpetual Debt
Securities
333-84226
September 14, 2005
September 26, 2005
3.150% Fixed Rate Senior Notes
 
due
2022
333-202880
March 21, 2017
March 29, 2017
3.950% Fixed Rate Senior Notes
 
due
2027
333-202880
March 21, 2017
March 29, 2017
Floating Rate Senior Notes due
2022
333-202880
March 21, 2017
March 29, 2017
Floating Rate Senior Notes due
2023
333-22739
September 18, 2018
October 2, 2018
4.100% Fixed Rate Senior Notes
 
due
2023
333-22739
September 18, 2018
October 2, 2018
4.550% Fixed Rate Senior Notes
 
due
2028
333-22739
September 18, 2018
October 2, 2018
3.550% Fixed Rate Senior Notes
 
due
2024
333-22739
September 18, 2018
April 9, 2019
4.050% Fixed Rate Senior Notes
 
due
2029
333-22739
September 18, 2018
April 9, 2019
 
The following description of our Notes
 
is a summary and does not purport to be complete and
 
is qualified in its entirety by the full terms of the Notes.
 
 
Description of the Fixed Rate Notes
The 3.150% Fixed
 
Rate Senior
 
Notes due
 
2022 (the “
2022 notes
”), the 3.950%
 
Fixed Rate
 
Senior Notes
 
due 2027 (the
 
“
2027 notes
”), the 4.100%
 
Fixed Rate
 
Senior
notes
 
due 2023
 
(the “
2023 notes
”), the
 
4.550% Fixed
 
Rate
 
Senior Notes
 
due 2028
 
(the
 
“
2028 notes
”), the
 
3.550% Fixed
 
Rate
 
Senior Notes
 
due 2024
 
(the “
2024
notes
”) and the 4.050% Fixed
 
Rate Senior Notes
 
due 2029 (the “
2029 notes
”) (together,
 
the “
fixed rate
 
notes
”) were issued in
 
the aggregate principal
 
amount, and
unless previously redeemed and cancelled will mature
 
on the Maturity Date and will bear interest
 
at the rate per annum, set forth
 
in the table below:
 
Aggregate Principal
Amount
Maturity Date
Fixed Interest
Rate
2022 notes ..........................................................
 
$1,500,000,000
March 29, 2022
3.150%
2027 notes ..........................................................
 
$1,500,000,000
March 29, 2027
3.950%
2023 notes ..........................................................
 
$1,500,000,000
October 2, 2023
4.100%
2028 notes ..........................................................
 
$1,250,000,000
October 2, 2028
4.550%
2024 notes ..........................................................
 
$1,000,000,000
April 9, 2024
3.550%
2029 notes ..........................................................
 
$1,000,000,000
April 9, 2029
4.050%
 
Interest on the fixed rate notes
 
will be payable semi-annually
 
in arrear on
 
the Fixed Rate Interest Payment Dates, commencing
 
on the First Fixed
 
Rate Interest Payment
Date, set forth in the table below:
Fixed Rate Interest
Payment Dates
First Fixed Rate
Interest Payment
Date
2022 notes ..........................................................
 
March
 
29
 
and
 
September
29 of each year
September 29, 2017
2027 notes ..........................................................
 
March
 
29
 
and
 
September
29 of each year
September 29, 2017
2023 notes ..........................................................
 
April
 
2
 
and
 
October
 
2
 
of
each year
April 2, 2019
2028 notes ..........................................................
 
April
 
2
 
and
 
October
 
2
 
of
each year
April 2, 2019
2024 notes ..........................................................
 
April
 
9
 
and
 
October
 
9
 
of
each year
October 9, 2019
2029 notes ..........................................................
 
April
 
9
 
and
 
October
 
9
 
of
each year
October 9, 2019
 
The regular record
 
dates for
 
the fixed
 
rate notes
 
will be the
 
Business Day
 
immediately preceding
 
each Fixed
 
Rate Interest
 
Payment
 
Date (or,
 
if the fixed
 
rate notes
are held in definitive form, the 15th Business
 
Day preceding each Fixed Rate Interest
 
Payment
 
Date).
 
If any scheduled Fixed Rate
 
Interest Payment
 
Date is not a Business Day,
 
we will pay interest on the
 
next succeeding Business Day,
 
but interest on that payment
 
will
not accrue
 
during
 
the period
 
from and
 
after
 
the scheduled
 
Fixed
 
Rate
 
Interest
 
Payment
 
Date.
 
If the
 
Maturity
 
Date
 
or date
 
of redemption
 
or repayment
 
is not
 
a
Business
 
Day,
 
we may
 
pay
 
interest
 
and principal
 
and/or
 
any
 
amount payable
 
upon redemption
 
of the
 
fixed
 
rate
 
notes
 
on the
 
next
 
succeeding Business
 
Day,
 
but
interest on
 
that payment
 
will not accrue during
 
the period from and
 
after such Maturity
 
Date or date
 
of redemption or
 
repayment. Interest
 
on the fixed
 
rate notes
will be computed on the basis of a 360-day year
 
of twelve 30-day months.
 
Description of the Floating Rate Notes
 
 
 
 
 
 
 
2019 ING Group Annual Report on Form 20-F
 
6
 
 
 
The Floating Rate Senior Notes due 2022 (the “
2022 floating rate notes
”) and the Floating Rate Senior Notes due 2023 (the “
2023 floating rate notes
” and, together
with the 2022 floating rate notes, the “
floating rate notes
”) were issued in an aggregate principal amount, and unless previously redeemed and cancelled will
 
mature
on the Maturity Date, and will bear interest
 
at the rate per annum, set forth
 
in the table below:
Aggregate
 
Principal
Amount
Maturity Date
Floating Interest Rate
2022 floating rate notes.................
 
$1,000,000,000
 
March 29, 2022
LIBOR
 
plus
 
1.15%
 
per
annum
2023 floating rate notes.................
 
$500,000,000
 
October 2, 2023
LIBOR plus
 
1.000% per
annum
 
Interest on
 
the floating rate
 
notes will be
 
payable quarterly
 
-annually in
 
arrear on the
 
Floating Rate
 
Interest Payment
 
Dates, commencing
 
on the First
 
Floating Rate
Interest Payment
 
Date, set forth in the table
 
below:
Floating Rate Interest
Payment Dates
First Floating Rate
Interest Payment
Date
2022 floating rate notes................................
 
.....
 
March 29, June 29,
September 29 and
December 29 of each year
June 29, 2017
2023 floating rate notes................................
 
.....
 
January 2, April 2, July 2
and October 2 of each
year
January 2, 2019
 
The regular record dates for
 
the floating rate notes
 
will be the Business Day immediately preceding
 
each Floating Rate Interest
 
Payment Date (or,
 
if the floating rate
notes are held in definitive form,
 
the 15th Business Day preceding each Floating Rate
 
Interest Payment
 
Date).
 
If any Floating Rate
 
Interest Payment
 
Date, other than the Maturity
 
Date for the floating
 
rate notes, would
 
fall on a day that
 
is not a Business Day,
 
the Floating Rate
Interest
 
Payment
 
Date
 
will be
 
postponed
 
to
 
the next
 
succeeding Business
 
Day,
 
except
 
that
 
if that
 
Business Day
 
falls in
 
the ne
 
xt succeeding
 
calendar
 
month,
 
the
Floating Rate Interest Payment
 
Date will be the immediately preceding Business Day.
 
If the Maturity Date or date of redemption or repayment
 
is not a Business Day,
we may pay interest
 
and principal and/or any amount
 
payable upon redemption of the
 
floating rate notes on
 
the next succeeding Business Day,
 
but interest on that
payment will not accrue during the period from and after
 
such Maturity Date or date of redemption
 
or repayment.
 
Each interest period on the floating rate
 
notes will begin on (and include) a Floating Rate Interest Payment
 
Date and end on (but exclude) the following Floating Rate
Interest Payment
 
Date (each,
 
an “
Interest Period
”); provided that
 
(i) with respect to
 
the 2022 floating
 
rate notes,
 
the first
 
Interest Period
 
will begin on
 
and include
March 29,
 
2017 and
 
will end
 
on, but
 
exclude, June
 
29, 2017
 
and (ii) with
 
respect to
 
the 2023
 
floating rate
 
notes, the
 
first Interest
 
Period will
 
begin on
 
and include
October 2, 2018 and will
 
end on, but exclude,
 
January 2, 2019.
 
The interest determination
 
date (“
Interest Determination
 
Date
”) for the first
 
Interest Period
 
will be
the second
 
London banking
 
day preceding
 
the Issue
 
Date and
 
the Interest
 
Determination
 
Date for
 
each succeeding
 
Interest
 
Period
 
will be
 
on the
 
second London
banking
 
day
 
preceding
 
the
 
applicable
 
Interest
 
Reset
 
Date.
 
“
London
 
banking
 
day
”
 
means
 
any
 
day
 
on which
 
dealings
 
in
 
U.S.
 
dollars
 
are
 
transacted
 
in
 
the
 
London
interbank
 
market.
 
The initial Floating Interest Rate on
 
the 2022 floating rate notes will be equal to
 
LIBOR, as determined on March 27, 2017, plus 1.15% per annum,
 
and thereafter the
rate of
 
interest
 
on the
 
2022 floating
 
rate notes
 
will be reset
 
quarterly on
 
March
 
29, June
 
29, September
 
29 and
 
December 29 in
 
each year
 
(each, a “
2022 Interest
Reset
 
Date
”), provided
 
that the
 
interest
 
rate
 
in effect
 
from (and
 
including) March
 
29, 2017
 
to (but
 
excluding)
 
the first
 
2022 Interest
 
Reset
 
Date will
 
be the
 
initial
Floating Interest Rate.
The initial Floating Interest Rate on the 2023 floating
 
rate notes will be equal to LIBOR, as
 
determined on September 28, 2018, plus 1.000% per
 
annum, and thereafter
the rate of interest on the 2023 floating rate notes will be reset quarterl
 
y
 
on January 2, April 2, July 2 and October 2 in each year (each, a “
2023 Interest Reset Date
”,
and together
 
with each 2022
 
Interest Reset
 
Date, each
 
an “
Interest
 
Reset Date
”), provided
 
that the
 
interest rate
 
in effect
 
from (and
 
including) October
 
2, 2018 to
(but excluding) the first 2023 Interest
 
Reset Date will be the initial Floating Interest
 
Rate.
If any Interest
 
Reset Date would
 
fall on a day
 
that is not a
 
Business Day,
 
the Interest Reset
 
Date will be postponed
 
to the next succeeding
 
Business Day,
 
except that
if that Business Day falls in the next succeeding calendar
 
month, the Interest Reset
 
Date will be the immediately preceding
 
Business Day.
 
Interest on the floating rate
 
notes will be computed on the basis of the actual
 
number of days in each Interest
 
Period and a 360-day year.
 
The Calculation
 
Agent for
 
the floating
 
rate
 
notes is
 
The Bank
 
of New
 
York
 
Mellon acting
 
through its
 
London branch,
 
or its
 
successor appointed
 
by the
 
Issuer.
 
The
Calculation
 
Agent
 
will
 
determine
 
the
 
Floating
 
Interest
 
Rate
 
for
 
each
 
Interest
 
Period
 
for
 
the
 
floating
 
rate
 
notes
 
by
 
reference
 
to
 
LIBOR
 
on
 
the
 
applicable
 
Interest
Determination Date. Promptly upon such determination, the Calculation Agent will notify the Issuer and the trustee (if the Calculation Agent is not the trustee) of the
new interest
 
rate for
 
the floating
 
rate notes.
 
Upon the request
 
of the holder
 
of any
 
floating rate
 
note, the
 
Calculation Agent
 
will provide
 
the Floating
 
Interest Rate
then in effect and, if determined, the
 
Floating Interest Rate
 
that will become effective on
 
the next Interest Reset Date.
 
LIBOR will be determined by the Calculation Agent
 
in accordance with the following provisions:
 
(1)
 
with respect to any Interest
 
Determination Date, LIBOR will be the rate
 
(expressed as a percentage per annum) for
 
deposits in U.S. dollars having a
maturity of three months commencing on the related
 
Interest Reset Date that
 
appears on Reuters Page LIBOR01 as of 11:00 a.m.,
 
London time, on
that Interest Determination
 
Date; and
(2)
 
with respect to an Interest Determination Date
 
on which no rate appears on Reuters
 
Page LIBOR01, the Calculation Agent will request the principal
London offices of each of four major reference banks in the London interbank market (which may include affiliates of the underwriters), as selected
and identified
 
by the
 
Issuer,
 
to provide
 
its offered
 
quotation (expressed
 
as a percentage
 
per annum)
 
for deposits
 
in U.S.
 
dollars for
 
the period
 
of
three months, commencing on the related Interest Reset Date, to prime
 
banks in the London interbank market at approximately 11:00 a.m.,
 
London
time, on that
 
Interest Determination
 
Date and in
 
a principal amount that
 
is representative
 
for a single
 
transaction in U.S.
 
dollars in that
 
market at
that time. If at
 
least two quotations are provided, then LIBOR on that
 
Interest Determination Date will be the arithmetic mean (rounded if
 
necessary
to the fourth
 
decimal place with
 
0.00005 being rounded
 
upwards) of
 
those quotations.
 
If fewer than
 
two quotations
 
are provided,
 
then LIBOR on
the Interest
 
Determination Date
 
will be the arithmetic
 
mean of the
 
rates at
 
which the reference
 
banks were offered
 
at approximately
 
11:00 a.m.,
London time, on the Interest
 
Determination Date deposits
 
in U.S. dollars for
 
the period of three months,
 
commencing on the related
 
Interest Rest
Date and
 
in a
 
principal amount
 
that is
 
representative
 
for a
 
single transaction
 
in U.S.
 
dollars in
 
that market
 
at that
 
time, by
 
leading banks
 
in the
London inter-bank market. If at
 
least two such rates are
 
so provided, LIBOR
 
on the Interest Determination Date
 
will be the
 
arithmetic mean (rounded
if necessary to the fourth decimal place with 0.00005 being rounded upwards)
 
of such rates. If fewer than two such rates
 
are provided, then LIBOR
on the Interest
 
Determination date
 
will be the offered
 
rate for
 
deposits in U.S. dollars
 
for the period of three
 
months, commencing on
 
the related
Interest
 
Payment
 
Date
 
and
 
in
 
a
 
principal
 
amount
 
that
 
is
 
representative
 
for
 
a
 
single
 
transaction
 
in
 
U.S.
 
dollars
 
in
 
that
 
market
 
at
 
that
 
time
 
(or
arithmetic mean of such rates, rounded as provided above,
 
if more than one rate is provided), at which, at approximately
 
11:00 a.m., London time,
on the Interest
 
Determination Date,
 
any one
 
or more banks
 
(which bank or
 
banks is
 
or are in
 
the opinion of
 
the Issuer suitable
 
for such
 
purpose)
informs the Calculation Agent it is quoting to leading banks in the London inter-bank market. If LIBOR cannot be determined in accordance with the
foregoing provisions of this paragraph,
 
LIBOR on the Interest Determination Date
 
will be LIBOR in effect with respect to the immediately preceding
Interest Determination
 
Date.
“
Reuters Page
 
LIBOR01
” means the
 
display that appears
 
on Reuters
 
Page LIBOR01 or
 
any page
 
as may replace
 
such page on such
 
service (or any
 
successor service)
for the purpose of displaying London interbank
 
offered rates of major banks
 
for U.S. dollars.
All percentages
 
resulting from
 
any calculation
 
of any
 
Floating Interest
 
Rate will
 
be rounded,
 
if necessary,
 
to the
 
nearest one
 
hundred thousandth
 
of a
 
percentage
point, with five one-millionths of a percentage point rounded upward (e.g., 9.876545% (or
 
0.09876545) would be rounded to 9.87655% (or 0.0987655)), and
 
all dollar
amounts would be rounded to the nearest
 
cent, with one-half cent being rounded upward.
All calculations made by the Calculation Agent for the purposes of calculating interest
 
on the floating rate notes shall be conclusive and
 
binding on the holders of the
floating rate notes, the Issuer and
 
the trustee, absent manifest error.
 
 
2019 ING Group Annual Report on Form 20-F
 
7
 
 
 
For any interest period, if LIBOR is negative,
 
then it would reduce the Floating Interest Rate payable
 
for such interest period below the specified margin. Accordingly,
holders may receive a Floating
 
Interest Rate that is
 
lower than the specified margin.
 
LIBOR Discontinuation
 
Notwithstanding the provisions described under “— Description of the Floating Rate Notes”
 
above, if, with respect to the 2023 floating rate
 
notes only,
 
a Benchmark
Event occurs when any Floating
 
Interest Rate (or any component part
 
thereof) remains to
 
be determined by reference to LIBOR,
 
then the Issuer
 
shall use its
 
reasonable
endeavors
 
to appoint
 
and consult
 
with an
 
Independent Adviser,
 
as soon
 
as reasonably
 
practicable,
 
with a
 
view to
 
the Issuer
 
determining a
 
Successor Rate,
 
failing
which an Alternative Rate and, in either case,
 
an Adjustment Spread, if any,
 
and Benchmark Amendments, if any.
 
If the Issuer,
 
following consultation with the Independent
 
Adviser,
 
to the extent practicable, and acting
 
in good faith, determines:
 
(1)
 
that there is a Successor Rate, then such
 
Successor Rate shall (subject to adjustment
 
as provided below) subsequently be used in place of LIBOR to
determine the Floating
 
Interest Rate
 
(or the relevant
 
component part thereof)
 
for all future
 
payments of interest
 
on the 2023 floating
 
rate notes;
or
(2)
 
that there
 
is no
 
Successor Rate
 
but that
 
there is
 
an Alternative
 
Rate, then
 
such Alternative
 
Rate shall
 
(subject to
 
adjustment as
 
provided below)
subsequently be used in place of LIBOR to determine the Floating Interest Rate
 
(or the relevant component part thereof) for all future payments
 
of
interest on the 2023 floating rate
 
notes.
If the Issuer determines any Successor
 
Rate or Alternative Rate
 
in accordance with this section “—
 
LIBOR Discontinuation” fewer
 
than five (5) Business Days
 
prior to
the relevant Interest Determination
 
Date, then the Floating Interest Rate on such Interest
 
Determination Date will be calculated using LIBOR in effect
 
with respect to
the immediately
 
preceding Interest
 
Determination Date.
 
For subsequent
 
Interest
 
Periods, the
 
Floating Interest
 
Rate will
 
be calculated
 
using the
 
Successor Rate
 
or
Alternative Rate (subject to adjustment
 
as provided below).
If the
 
Issuer,
 
following consultation
 
with the
 
Independent Adviser,
 
to the
 
extent practicable,
 
and acting
 
in good
 
faith, dete
 
rmines (i)
 
that an
 
Adjustment Spread
 
is
required to be applied to the Successor Rate or the Alternative Rate
 
(as the case may be) and (ii) the quantum of, or a formula
 
or methodology for determining, such
Adjustment
 
Spread,
 
then
 
such
 
Adjustment
 
Spread
 
shall
 
be applied
 
to
 
the
 
Successor
 
Rate
 
or
 
the
 
Alternative
 
Rate
 
(as
 
the
 
case
 
may
 
be). If
 
the
 
Issuer
 
is
 
unable
 
to
determine
 
the
 
quantum
 
of,
 
or
 
a
 
formula
 
or
 
methodology
 
for
 
determining,
 
such
 
Adjustment
 
Spread,
 
then
 
such
 
Successor
 
Rate
 
or
 
Alternative
 
Reference
 
Rate,
 
as
applicable, will apply without an Adjustment Spread.
If any
 
Successor
 
Rate,
 
Alternative
 
Rate
 
or Adjustment
 
Spread is
 
determined
 
in accordance
 
with this
 
section
“—
LIBOR Discontinuation”
 
and the
 
Issuer,
 
following
consultation with
 
the Independent Adviser,
 
to the extent
 
practicable, and
 
acting in good
 
faith, determines
 
(i) that amendments
 
to any
 
terms and conditions
 
of the
2023 floating rate
 
notes, including the
 
Successor Rate
 
or Alternative
 
Rate, as applicable,
 
or,
 
in each case,
 
the Adjustment
 
Spread, as well
 
as the day
 
count fraction,
business day convention,
 
the definitions of Business Day,
 
London banking day,
 
Interest Determination
 
Date, Interest
 
Period or Floating
 
Rate Interest
 
Payment Date,
and any
 
related provisions
 
and definitions, are
 
necessary to ensure
 
the proper operation
 
of such Successor
 
Rate, Alternative
 
Rate and/or
 
Adjustment Spread
 
(such
amendments, the “
Benchmark Amendments
”) and (ii) the terms and conditions of such Benchmark Amendments, then the Issuer may, without any
 
requirement for
the consent or approval
 
of holders of the 2023 floating rate
 
notes, amend the terms and conditions
 
of the 2023 floating rate notes
 
to give effect to such
 
Benchmark
Amendments with effect from the
 
date specified in a notice given in to the Trustee.
Upon receipt of satisfactory documentation,
 
the Trustee and
 
the Calculation Agent shall, at the direction and
 
expense of the Issuer,
 
effect such amendments as may
be required in order
 
to give effect to this
 
section “— LIBOR
 
Discontinuation” pursuant to a supplemental indenture or
 
an amendment to the
 
Indenture, or amendment
to the Calculation
 
Agency Agreement,
 
or issuances
 
and authentication
 
of new global
 
or definitive
 
notes in
 
respect of
 
the 2023 floating
 
rate notes,
 
and the Trustee
shall not
 
be liable
 
to any
 
party for
 
any consequences
 
thereof,
 
save
 
as provided
 
in the
 
Indenture and
 
the 2023
 
floating rate
 
notes. No
 
consent of
 
holders of
 
2023
floating rate notes will be solicited
 
or required in connection with effecting
 
the Successor Rate, Alternative Rate,
 
Adjustment Spread or Benchmark Amendments,
 
as
applicable, including for the execution
 
of any documents, amendments to the Indenture,
 
Calculation Agency Agreement or floating
 
rates notes or other steps by the
Issuer,
 
the Trustee, the Calculation
 
Agent or any paying agent
 
(if required).
The Issuer will, promptly following the determination of any the Successor Rate, Alternative Rate, Adjustment Spread or Benchmark Amendments, as applicable, give
notice thereof, which shall specify the effective
 
date(s) for such Successor Rate, Alternative
 
Rate, Adjustment Spread or Benchmark Amendments,
 
as applicable, and
of any changes to the terms and conditions of the 2023 floating rate notes to the Trustee, the Calculation Agent, any paying agent and DTC or the holders of the 2023
floating
 
rate
 
notes,
 
as
 
applicable;
 
provided
 
that
 
failure
 
to
 
provide
 
such
 
notice
 
will
 
have
 
no
 
impact
 
on
 
the
 
effectiveness
 
of,
 
or
 
otherwise
 
invalidate,
 
any
 
such
determination; and provided
 
further that the determination
 
of any Successor Rate,
 
Alternative Rate,
 
Adjustment Spread or
 
Benchmark Amendments, as applicable,
and any
 
other related
 
changes
 
to
 
the 2023
 
floating
 
rate
 
notes,
 
shall be
 
made in
 
accordance
 
with the
 
Capital
 
Regulations
 
applicable
 
to
 
the Group
 
in force
 
at
 
the
relevant
 
time. In
 
effecting
 
any
 
consequential
 
amendments
 
to
 
the terms
 
of the
 
2023 floating
 
rate
 
notes as
 
may
 
be directed
 
by
 
the Issuer
 
in accordance
 
with this
section “
—
LIBOR Discontinuation”,
 
neither the Trustee
 
nor the Calculation Agent shall
 
be required to effect
 
any amendments that
 
affects its respective
 
own rights,
duties or immunities in their respective capacities as Trustee
 
or Calculation Agent under the Indenture,
 
the Calculation Agency Agreement or otherwise.
By its
 
acquisition of
 
2023 floating
 
rate
 
notes, each
 
holder and
 
beneficial owner
 
of the
 
2023 floating
 
rate
 
notes and
 
each subsequent
 
holder and
 
beneficial owner
acknowledges, accepts, agrees to be bound by, and consents to, the Issuer’s determination of the Successor Rate, Alternative Rate, Adjustment Spread or Benchmark
Amendments, as
 
applicable, as
 
contemplated
 
by this
 
section “—
 
LIBOR Discontinuation”,
 
and to
 
any amendment
 
or alteration
 
of the
 
terms and
 
conditions of
 
the
2023 floating rate
 
notes, including
 
an amendment of
 
the amount
 
of interest
 
due on the
 
2023 floating rate
 
notes, as
 
may be
 
required in
 
order to
 
give effect
 
to this
section “
—
LIBOR Discontinuation”. The Trustee shall be entitled to rely on this deemed
 
consent in connection with any supplemental indenture or
 
amendment which
may be necessary to effect the Successo
 
r
 
Rate, the Alternative Rate
 
the Adjustment Spread or the Benchmark Amendments,
 
as applicable.
By its acquisition of 2023 floating
 
rate notes, each
 
holder and beneficial owner of 2023 floating
 
rate notes and each
 
subsequent holder and beneficial
 
owner waives
any
 
and all
 
claims in
 
law and/or
 
equity against
 
the Trustee,
 
the Calculation
 
Agent
 
and any
 
paying
 
agent
 
for,
 
agrees not
 
to
 
initiate
 
a suit
 
against
 
the Trustee,
 
the
Calculation Agent and any paying agent in respect of,
 
and agrees that neither the Trustee,
 
the Calculation Agent or any paying agent will be liable for,
 
any action that
the Trustee,
 
the Calculation
 
Agent or
 
any paying
 
agent, as
 
the case
 
may be,
 
takes,
 
or abstains
 
from taking,
 
in each
 
case in
 
accordance
 
with this
 
section “
—
LIBOR
Discontinuation” or any losses suffered
 
in connection therewith.
 
By its acquisition of 2023
 
floating rate notes,
 
each holder and beneficial owner of
 
2023 floating rate
 
notes and each subsequent
 
holder and beneficial owner agrees
that neither
 
the Trustee,
 
the Calculation Agent
 
or any
 
paying agent
 
will have
 
any obligation
 
to determine any
 
Successor Rate,
 
Alternative Rate,
 
Adjustment Spread
or Benchmark Amendments, as
 
applicable, including in the
 
event of any
 
failure by the Issuer
 
to determine any
 
Successor Rate, Alternative
 
Rate, Adjustment
 
Spread
or Benchmark Amendments, as applicable.
An Independent Adviser appointed pursuant
 
to this section “
—
LIBOR Discontinuation” will act in good
 
faith as an expert and (in the
 
absence of fraud) shall have
 
no
liability whatsoever to the Issuer,
 
the Trustee, the Calculation
 
Agent, any paying agent or the holders of 2023 floating
 
rate notes for any determination
 
made by it or
for any advice given to the Issuer in
 
connection with any determination made by
 
the Issuer pursuant to this section “
—
LIBOR Discontinuation”.
Notwithstanding any
 
other provision of this
 
section “
—
LIBOR Discontinuation”,
 
the Issuer may decide
 
that no Successor Rate,
 
Alternative Rate,
 
Adjustment Spread
or Benchmark Amendments, as
 
applicable, will be
 
adopted if and to
 
the extent that, in
 
the determination of the
 
Issuer, such adoption or amendment could reasonably
be expected
 
to result
 
in the exclusion
 
of the 2023
 
floating rate
 
notes (in
 
whole or in
 
part) from the
 
Issuer’s and/or
 
the Regulatory
 
Group’s
 
minimum requirements
for (A) own funds and
 
eligible liabilities and/or (B)
 
loss absorbing capacity instruments, in
 
each case as such
 
minimum requirements are applicable to the
 
Issuer and/or
the Regulatory Group and as determined
 
in accordance with, and pursuant
 
to, the relevant Loss
 
Absorption Regulations.
“
Adjustment Spread
” means either a
 
spread (which may
 
be positive or
 
negative), or
 
the formula or
 
methodology for
 
calculating a spread,
 
in either case,
 
which the
Issuer, following
 
consultation with the Independent Adviser,
 
to the extent practicable, and acting in good faith, determines is required
 
to be applied to the Successor
Rate or the Alternative Rate (as the case may be) to reduce
 
or eliminate, to the extent reasonably practicable in the circumstances, any economic prejudice or benefit
(as the case may
 
be) to holders
 
of 2023 floating rate
 
notes as a result
 
of the replacement of
 
LIBOR with the Successor
 
Rate or the Alternative
 
Rate (as the
 
case may
be) and is the spread, formula or methodology which:
(i)
 
in
 
the
 
case
 
of
 
a
 
Successor
 
Rate,
 
is
 
formally
 
recommended
 
in
 
relation
 
to
 
the
 
replacement
 
of
 
LIBOR
 
with
 
the
 
Successor
 
Rate
 
by
 
any
 
Relevant
Nominating Body;
(ii)
 
in the case of a Successor
 
Rate, if no such
 
recommendation has been
 
made, or in the case of
 
an Alternative Rate,
 
the Issuer determines, following
consultation with the Independent Adviser,
 
to the extent practicable, and acting in good faith,
 
is recognized or acknowledged as being the industry
standard
 
for
 
over-the-counter
 
derivative
 
transactions
 
which
 
reference
 
LIBOR,
 
where
 
such
 
rate
 
has
 
been
 
replaced
 
by
 
the
 
Successor
 
Rate
 
or
 
the
Alternative Rate (as the case may
 
be); or
(iii)
 
if the Issuer determines that
 
no such industry standard
 
is recognized or acknowledged,
 
the Issuer,
 
in its discretion, following
 
consultation with the
Independent Adviser,
 
to the extent practicable, and
 
acting in good faith, determines to be appropriate.
“
Alternative
 
Rate
”
 
means
 
an
 
alternative
 
benchmark
 
or
 
screen
 
rate
 
which
 
the
 
Issuer
 
determines
 
in
 
accordance
 
with
 
this
 
section
 
“
—
LIBOR
 
Discontinuation”
 
has
replaced LIBOR
 
in customary
 
market usage
 
in the
 
international
 
debt capital
 
markets for
 
the purposes
 
of determining
 
rates
 
of interest
 
(or the
 
relevant
 
component
part thereof) for the same interest period
 
and in U.S. dollars.
 
2019 ING Group Annual Report on Form 20-F
 
8
 
 
 
“
Benchmark Event
” means:
(i)
 
LIBOR ceasing to be published for a period of at least
 
five (5) Business Days or ceasing to exist;
(ii)
 
a public statement
 
by the administrator
 
of LIBOR that
 
it will, by
 
a specified date
 
within the following
 
six (6) months,
 
cease LIBOR permanently
 
or
indefinitely (in circumstances where
 
no successor administrator
 
has been appointed that will continue publication
 
of LIBOR);
(iii)
 
a public
 
statement
 
by
 
the supervisor
 
of the
 
administrator
 
of LIBOR
 
that
 
LIBOR has
 
been
 
or will,
 
by
 
a specified
 
date
 
within the
 
following
 
six (6)
months, be permanently or indefinitely discontinued;
(iv)
 
a public statement by the supervisor of the administrator
 
LIBOR that means LIBOR will be prohibited from being used
 
or that its use will be subject
to restrictions or adverse
 
consequences, in each case within the following six (6) months;
 
or
(v)
 
it has become unlawful for
 
any paying agent,
 
Calculation Agent, the Issuer
 
or other party to calculate
 
any payments
 
due to be made to any
 
holder
of 2023 floating rate notes using
 
LIBOR.
“
Independent Adviser
” means an independent financial institution of international repute
 
or an independent financial adviser with appropriate expertise
 
appointed
by the Issuer.
“
Relevant Nominating Body
” means, in respect of a benchmark or screen rate
 
(as applicable):
(i)
 
the central
 
bank for
 
the U.S.
 
dollar,
 
or any
 
central
 
bank or
 
other supervisory
 
authority which
 
is responsible
 
for supervising
 
the administrator
 
of
LIBOR; or
(ii)
 
any working group or committee sponsored
 
by, chaired
 
or co-chaired by or constituted at the request of (a) the central
 
bank for the U.S. dollar,
 
(b)
any central bank
 
or other supervisory authority which is
 
responsible for supervising
 
the administrator of
 
LIBOR, (c) a group of
 
the aforementioned
central banks or other supervisory authorities or (d) the Financial Stability
 
Board or any part thereof.
“
Successor Rate
” means a successor to or replacement of LIBOR which is formally
 
recommended by any Relevant
 
Nominating Body.
Terms Applicable
 
to the 2024 and 2029 Notes
Agreement and Acknowledgement with Respect
 
to the Exercise of Dutch Bail-in Power
With a view to Article 55 of the Directive 2014/59/EU of the
 
European Parliament and of the Council (the “
Bank Recovery and Resolution
 
Directive
” or “
BRRD
”),
the Issuer has included the following two paragraphs
 
in the terms of the notes:
 
(a)
 
By acquiring any notes, each holder and beneficial
 
owner of a note or any interest
 
therein acknowledges, agrees to be bound
 
by, and consents
 
to
the exercise of,
 
any Dutch Bail-in Power by
 
the relevant resolution authority
 
that may result in the cancellation of all, or
 
a portion, of the principal
amount of, or interest
 
on, the notes and/or the conversion
 
of all, or a portion, of the principal amount of,
 
or interest on, the notes into
 
shares or
other securities or other obligations of the Issuer or another person,
 
including by means of a variation to the terms
 
of the notes or any
expropriation of the notes, in each case,
 
to give effect to the exercise
 
by the relevant resolution
 
authority of such Dutch Bail-in Power (whether
 
at
the point of non-viability or as taken
 
together with a resolution action). Each
 
holder and beneficial owner of a note or any interest
 
therein further
acknowledges and agrees that the rights of the
 
holders and beneficial owners of the notes
 
are subject to, and will be varied, if necessary,
 
so as to
give effect to, the exercise
 
of any Dutch Bail-in Power by
 
the relevant resolution authority.
 
In addition, by acquiring any notes, each holder and
beneficial owner of a note or any interest
 
therein further acknowledges, agrees to be bound
 
by, and consents
 
to the exercise by the relevant
resolution authority of,
 
any power to suspend any payment
 
in respect of the notes for a temporary
 
period.
(b)
 
For these purposes, a “
Dutch Bail-in Power
” is any statutory write-down
 
and/or conversion
 
power existing from time to time under any
 
laws,
regulations, rules or requirements
 
relating to the resolution of banks,
 
banking group companies, credit institutions
 
and/or investment firms
incorporated in The Netherlands
 
in effect and applicable in The Netherlands to
 
the Issuer or other members of the Group, including
 
but not
limited to any such laws, regulations,
 
rules or requirements that are implemented,
 
adopted or enacted within the context
 
of a European Union
directive or regulation of the European
 
Parliament and of the Council establishing
 
a framework for the recovery
 
and resolution of credit
institutions and investment firms
 
(including but not limited to the BRRD and Regulation
 
(EU) No 806/2014 of the European Parliament and
 
of the
Council (the “
SRM Regulation
”)) and/or within the context of a Dutch
 
resolution regime under the Dutch Intervention
 
Act and any amendments
thereto, or otherwise, pursuant
 
to which obligations of a bank, banking group
 
company,
 
credit institution or investment
 
firm or any of its affiliates
can be reduced, cancelled and/or converted
 
into shares or other securities or obligations
 
of the obligor or any other person (whether at
 
the point
of non-viability or as taken
 
together with a resolution action) or may be expropriated
 
(and a reference to the “
relevant resolution authority
” is to
any authority with the ability to exercise
 
a Dutch Bail-in Power).
The Dutch Bail-in Power may be imposed
 
without any prior notice by the relevant
 
resolution authority of its decision to exercise
 
such power.
 
No principal of, or
interest on, the notes shall become due
 
and payable after the exercise
 
of any Dutch Bail-in Power by
 
the relevant resolution authority
 
except as permitted under
the laws and regulations of The Netherlands
 
and the European Union applicable to the Issuer.
In addition, the exercise of any
 
Dutch Bail-In Power may require
 
interests in the notes and/or
 
other actions implementing any Dutch Bail-In
 
Power to be held or
taken, as the case may
 
be, through clearing systems,
 
intermediaries or persons other than DTC.
See also “Risk Factors — Under the terms of the
 
notes, you have agreed
 
to be bound by the exercise of any
 
Dutch Bail-in Power by the relevant
 
resolution
authority” in the applicable prospectus supplement.
 
By acquiring any notes, each holder and beneficial
 
owner of a note or any interest
 
therein, to the extent permitted
 
by the Trust
 
Indenture Act, shall be deemed to
waive any and all claims against
 
the trustee for,
 
and to agree not to initiate a suit against
 
the trustee in respect of,
 
and to agree that the trustee
 
shall not be liable
for,
 
any action that the trustee takes,
 
or abstains from taking, in either case in accordance
 
with the exercise of the Dutch
 
Bail-in Power by the relevant
 
resolution
authority with respect to the notes.
The Issuer shall provide a written notice directly
 
to DTC as soon as practicable
 
of any exercise of the Dutch
 
Bail-in Power with respect to the notes
 
by the relevant
resolution authority for purposes of notifying holders
 
of such occurrence, including the amount of any cancellation
 
of all, or
 
a portion, of the principal amount of,
 
or
interest on, such capital
 
securities. The Issuer shall also deliver a copy of such notice to the
 
trustee for information
 
purposes. Failure to provide
 
such notices will not
have any impact on the effectiveness
 
of, or otherwise invali
 
date, any such exercise
 
of the Dutch Bail-in Power.
By acquiring any notes, each holder of the notes
 
acknowledges and agrees that the exercise
 
of the Dutch Bail-in Power by the
 
relevant resolution authority with
respect to the notes shall not give rise to
 
a default for purposes of Section 315(b) (Notice
 
of Defaults) and Section 315(c) (Duties of the Trustee
 
in Case of Default)
of the Trust Indenture
 
Act.
By acquiring any notes, each holder and beneficial
 
owner of a note or any interest
 
therein acknowledges and agrees that,
 
upon the exercise of any Dutch
 
Bail-in
Power by the relevant resolution
 
authority, (a)
 
the trustee shall not be required to take
 
any further directions from holders of
 
the notes under Section 5.15 (
Control
by Holders
) of the Indenture and (b) the Indenture
 
shall impose no duties upon the trustee whatsoever with respect
 
to the exercise of any
 
Dutch Bail-in Power by
the relevant resolution authority.
 
If holders or beneficial owners of the notes
 
have given a direction to the trustee
 
pursuant to Section 5.15 of the Indenture
 
prior
to the exercise of any Dutch
 
Bail-in Power by the relevant
 
resolution authority,
 
such direction shall cease to be of further effect
 
upon such exercise of any
 
Dutch
Bail-in Power and shall become null and void
 
at such time. Notwithstanding the foregoing,
 
if, following the completion
 
of the exercise of the Dutch Bail
 
-in Power by
the relevant resolution authority,
 
the notes remain outstanding (for
 
example, if the exercise
 
of the Dutch Bail-in Power results
 
in only a partial
 
write-down of the
principal of the notes), then the trustee’s
 
duties under the Indenture shall remain applicable
 
with respect to the notes following
 
such completion to the extent that
the Issuer and the trustee shall agree.
By acquiring any of the notes, each holder of the notes
 
shall be deemed to have (a) consented
 
to the exercise of any Dutch
 
Bail-in Power as it may be imposed
without any prior notice by the relevant
 
resolution authority of its decision to exercise
 
such power with respect to the relevant
 
notes and (b) authorized, directed
and requested DTC and any
 
direct participant in DTC or other intermediary
 
through which it holds the relevant
 
notes to take any
 
and all necessary action, if
required, to implement the exercise
 
of any Dutch Bail-in Power
 
with respect to the relevant
 
notes as it may be imposed, without any
 
further action or direction on
the part of such holder or the trustee.
Under the terms of the 2024 and 2029 notes, the exercise
 
of the Dutch Bail-in Power by the relevant
 
resolution authority with respect to the relevant
 
notes will not
be an Event of Default (as
 
defined in the Indenture).
Terms Applicable
 
to the 2023 Notes, the 2028 Notes and the 2023 Floating
 
Rate Notes
 
2019 ING Group Annual Report on Form 20-F
 
9
 
 
 
Agreement and Acknowledgement with Respect
 
to the Exercise of Dutch Bail-in Power
 
With a view to Article 55 of the Directive 2014/59/EU of the
 
European Parliament and of the Council (the “
Bank Recovery and Resolution
 
Directive
” or “
BRRD
”),
the Issuer has included the following two paragraphs
 
in the terms of the notes:
 
(a)
 
By acquiring any notes, each holder and beneficial
 
owner of a note or any interest
 
therein acknowledges, agrees to be bound
 
by, and consents
 
to
the exercise of,
 
any Dutch Bail-in Power by
 
the relevant resolution authority
 
that may result in the cancellation of all, or
 
a portion, of the principal
amount of, or interest
 
on, the notes and/or the conversion
 
of all, or a portion, of the principal amount of,
 
or interest on, the notes
 
into shares or
other securities or other obligations of the Issuer or another person,
 
including by means of a variation to the terms
 
of the notes or any
expropriation of the notes, in each case,
 
to give effect to the exercise
 
by the relevant resolution
 
authority of such Dutch Bail-in Power (whether
 
at
the point of non-viability or as taken
 
together with a resolution action). Each
 
holder and beneficial owner of a note or any interest
 
therein further
acknowledges and agrees that the rights of the
 
holders and beneficial owners of the notes
 
are subject to, and will be varied, if necessary,
 
so as to
give effect to, the exercise
 
of any Dutch Bail-in Power by
 
the relevant resolution authority.
 
In addition, by acquiring any notes, each holder and
beneficial owner of a note or any interest
 
therein further acknowledges, agrees to be bound
 
by, and consents
 
to the exercise by the relevant
resolution authority of,
 
any power to suspend any payment
 
in respect of the notes for a temporary
 
period.
 
 
 
(b)
 
For these purposes, a “
Dutch Bail-in Power
” is any statutory write-down
 
and/or conversion
 
power existing from time to time under any
 
laws,
regulations, rules or requirements
 
relating to the resolution of banks,
 
banking group companies, credit institutions
 
and/or investment firms
incorporated in The Netherlands
 
in effect and applicable in The Netherlands
 
to the Issuer or other members of the Group,
 
including but not limited
to any such laws, regulations,
 
rules or requirements that are implemented,
 
adopted or enacted within the context
 
of a European Union directive or
regulation of the European Parliament
 
and of the Council establishing a framework
 
for the recovery and resolution
 
of credit institutions and
investment firms (including but not
 
limited to the BRRD and Regulation (EU) No 806/2014 of the European
 
Parliament and of the Council (the
“
SRM Regulation
”)) and/or within the context
 
of a Dutch resolution regime under the Dutch
 
Intervention Act and any amendments
 
thereto, or
otherwise, pursuant to which obligations
 
of a bank, banking group company,
 
credit institution or investment
 
firm or any of its affiliates can be
reduced, cancelled and/or converted
 
into shares or other securities or obligations
 
of the obligor or any other person or may
 
be expropriated (and a
reference to the “
relevant resolution authority
” is to any authority with the ability to exercise
 
a Dutch Bail-in Power).
 
 
The Dutch Bail-in Power may be imposed
 
without any prior notice by the relevant
 
resolution authority of its decision to exercise
 
such power.
 
No principal of, or
interest on, the notes shall become due
 
and payable after the exercise
 
of any Dutch Bail-in Power by
 
the relevant resolution authority
 
except as permitted under
the laws and regulations of The Netherlands
 
and the European Union applicable to the Issuer.
 
In addition, the exercise of any
 
Dutch Bail-In Power may require
 
interests in the notes and/or
 
other actions implementing any Dutch Bail-In
 
Power to be held or
taken, as the case may
 
be, through clearing systems,
 
intermediaries or persons other than DTC.
 
See also “Risk Factors — Under the terms of the
 
notes, you have agreed
 
to be bound by the exercise of any
 
Dutch Bail-in Power by the relevant
 
resolution
authority” in the applicable prospectus supplement.
 
By acquiring any notes, each holder and beneficial
 
owner of a note or any interest
 
therein, to the extent permitted
 
by the Trust
 
Indenture Act, shall be deemed to
waive any and all claims against
 
the trustee for,
 
and to agree not to initiate a suit against
 
the trustee in respect of,
 
and to agree that the trustee
 
shall not be liable
for,
 
any action that the trustee takes,
 
or abstains from taking, in either case in accordance
 
with the exercise of the Dutch
 
Bail-in Power by the relevant
 
resolution
authority with respect to the notes.
 
The Issuer shall provide a written notice directly
 
to DTC as soon as practicable
 
of any exercise of the Dutch
 
Bail-in Power with respect to the notes
 
by the relevant
resolution authority for purposes of notifying holders
 
of such occurrence, including the amount of any cancellation
 
of all, or a portion, of the principal amount of,
 
or
interest on, such capital
 
securities. The Issuer shall also deliver a copy of such notice to the
 
trustee for information
 
purposes. Failure to provide
 
such notices will not
have any impact on the effect
 
iveness of, or otherwise invalidate,
 
any such exercise of the
 
Dutch Bail-in Power.
 
By acquiring any notes, each holder of the notes
 
acknowledges and agrees that the exercise
 
of the Dutch Bail-in Power by the
 
relevant resolution authority with
respect to the notes shall not give rise to
 
a default for purposes of Section 315(b) (Notice
 
of Defaults) and Section 315(c) (Duties of the Trustee
 
in Case of Default)
of the Trust Indenture
 
Act.
 
By acquiring any notes, each holder and beneficial
 
owner of a note or any interest
 
therein acknowledges and agrees that, upon
 
the exercise of any Dutch
 
Bail-in
Power by the relevant resolution
 
authority, (a)
 
the trustee shall not be required to take
 
any further directions from holders of the
 
notes under Section 5.15 (
Control
by Holders
) of the Indenture and (b) the Indenture
 
shall impose no duties upon the trustee whatsoever with respect
 
to the exercise of any
 
Dutch Bail-in Power by
the relevant resolution authority.
 
If holders or beneficial owners of the notes
 
have given a direction to the trustee
 
pursuant to Section 5.15 of the Indenture
 
prior
to the exercise of any Dutch
 
Bail-in Power by the relevant
 
resolution authority,
 
such direction shall cease to be of further effect
 
upon such exercise of any
 
Dutch
Bail-in Power and shall become null and void
 
at such time. Notwithstanding the foregoing,
 
if, following the completion
 
of the exercise of the Dutch
 
Bail-in Power by
the relevant resolution authority,
 
the notes remain outstanding (for
 
example, if the exercise
 
of the Dutch Bail-in Power results
 
in only a partial write-down of the
principal of the notes), then the trustee’s
 
duties under the Indenture shall remain applicable
 
with respect to the notes following
 
such completion to the extent that
the Issuer and the trustee shall agree.
 
By acquiring any of the notes, each holder of the notes
 
shall be deemed to have (a) consented
 
to the exercise of any Dutch
 
Bail-in Power as it may be imposed
without any prior notice by the relevant
 
resolution authority of its decision to exercise
 
such power with respect to the relevant
 
notes and (b) authorized, directed
and requested DTC and any
 
direct participant in DTC or other intermediary
 
through which it holds the relevant
 
notes to take any
 
and all necessary action, if
required, to implement the exercise
 
of any Dutch Bail-in Power
 
with respect to the relevant
 
notes as it may be imposed, without any
 
further action or direction on
the part of such holder or the trustee.
 
Under the terms of each of the 2023 notes, the 2028 notes
 
and the 2023 floating rate notes,
 
the exercise of the Dutch Bail-in Power
 
by the relevant resolution
authority with respect to the relevant
 
notes will not be an Event of Default
 
(as defined in the Indenture).
 
 
Terms applicable
 
to the 2022 Notes, the 2027 Notes and the 2022 Floating
 
Rate Notes
Agreement and Acknowledgement with Respect
 
to the Exercise of Dutch Bail-in Power
 
With a view to Article 55 of the Directive 2014/59/EU of the
 
European Parliament and of the Council (the “
Bank Recovery and Resolution
 
Directive
” or “
BRRD
”),
the Issuer has included the following two paragraphs
 
in the terms of the notes:
 
(a)
 
By acquiring any notes, each holder and beneficial
 
owner of a note or any interest
 
therein acknowledges, agrees to be bound
 
by, and consents
 
to
the exercise of,
 
any Dutch Bail-in Power by
 
the relevant resolution authority
 
that may result in the cancellation of all, or
 
a portion, of the principal
amount of, or interest
 
on, the notes and/or the conversion
 
of all, or a portion, of the principal amount of,
 
or interest on, the notes
 
into shares or
other securities or other obligations of the Issuer or another person,
 
including by means of a variation to the terms
 
of the notes or any
expropriation of the notes, in each case,
 
to give effect to the exercise
 
by the relevant resolution
 
authority of such Dutch Bail-in Power.
 
Each
holder and beneficial owner of a note or any interest
 
therein further acknowledges and agrees that the rights
 
of the holders and beneficial
owners of the notes are subject to,
 
and will be varied, if necessary,
 
so as to give effect to, the
 
exercise of any Dutch
 
Bail-in Power by the relevant
resolution authority.
 
In addition, by acquiring any notes, each holder and beneficial
 
owner of a note or any interest
 
therein further acknowledges,
agrees to be bound by,
 
and consents to the exercise by
 
the relevant resolution authority
 
of, any power to
 
suspend any payment in respect of the
notes for a temporary period..
(b)
 
For these purposes, a “
Dutch Bail-in Power
” is any statutory write-down
 
and/or conversion
 
power existing from time to time under any
 
laws,
regulations, rules or requirements
 
relating to the resolution of banks,
 
banking group companies, credit institutions
 
and/or investment firms
incorporated in The Netherlands
 
in effect and applicable in The Netherlands
 
to the Issuer or other members of the Group,
 
including but not
limited to any such laws, regulations,
 
rules or requirements that are implemented,
 
adopted or enacted within the context
 
of a European Union
directive or regulation of the European
 
Parliament and of the Council establishing
 
a framework for the recovery
 
and resolution of credit
institutions and investment firms
 
(including but not limited to the BRRD and Regulation
 
(EU) No 806/2014 of the European Parliament and
 
of the
Council (the “
SRM Regulation
”)) and/or within the context of a Dutch
 
resolution regime under the Dutch Intervention
 
Act and any amendments
thereto, or otherwise, pursuant
 
to which obligations of a bank, banking group
 
company,
 
credit institution or investment
 
firm or any of its affiliates
can be reduced, cancelled and/or converted
 
into shares or other securities or obligations
 
of the obligor or any other person
 
or may be
expropriated (and a reference
 
to the “
relevant resolution authority
” is to any authority with the ability to exercis
 
e
 
a Dutch Bail-in Power).
 
The Dutch Bail-in Power may be imposed
 
without any prior notice by the relevant
 
resolution authority of its decision to exercise
 
such power.
 
No principal of, or
interest on, the notes shall become due
 
and payable after the exerci
 
se of any Dutch Bail-in Power by
 
the relevant resolution authority
 
except as permitted under
the laws and regulations of The Netherlands
 
and the European Union applicable to the Issuer.
 
In addition, the exercise of any
 
Dutch Bail-In Power may require
 
interests in the notes and/or
 
other actions implementing any Dutch Bail-In
 
Power to be held or
taken, as the case may
 
be, through clearing systems,
 
intermediaries or persons other than DTC.
 
 
See also “Risk Factors — Under the terms of the
 
notes, you have agre
 
ed to be bound by the exercise of any
 
Dutch Bail-in Power by the relevant
 
resolution
authority” in the applicable prospectus supplement.
 
 
2019 ING Group Annual Report on Form 20-F
 
10
 
 
 
By acquiring any notes, each holder and beneficial
 
owner of a note or any interest
 
therein, to the extent permitted
 
by the Trust
 
Indenture Act, shall be deemed to
waive any and all claims against
 
the trustee for,
 
and to agree not to initiate a suit against
 
the trustee in respect of,
 
and to agree that the trustee
 
shall not be liable
for,
 
any action that the trustee takes,
 
or abstains from taking, in either case in accordance
 
with the exercise of the Dutch
 
Bail-in Power by the relevant
 
resolution
authority with respect to the notes.
 
The Issuer shall provide a written notice directly
 
to DTC as soon as practicable
 
of any exercise of the Dutch
 
Bail-in Power with respect to the notes
 
by the relevant
resolution authority for purposes of notifying holders
 
of such occurrence. The Issuer shall also deliver a copy of such
 
notice to the trustee for information
 
purposes.
 
By acquiring any notes, each holder of the notes
 
acknowledges and agrees that the exercise
 
of the Dutch Bail-in Power by the
 
relevant resolution authority with
respect to the notes shall not give rise to
 
a default for purposes of Section 315(b) (Notice
 
of Defaults) and Section 315(c) (Duties of the Trustee
 
in Case of Default)
of the Trust Indenture
 
Act.
 
By acquiring any notes, each holder and beneficial
 
owner of a note or any interest
 
therein acknowledges and agrees that, upon
 
the exercise of any Dutch
 
Bail-in
Power by the relevant
 
resolution authority,
 
(a) the trustee shall not be required to take
 
any further directions from holders of the
 
notes under Section 5.15 (
Control
by Holders
) of the Indenture and (b) the Indenture
 
shall impose no duties upon the trustee whatsoever
 
with respect to the exercise
 
of any Dutch Bail-in Power by
the relevant resolution authority.
 
If holders or beneficial owners of the notes
 
have given a direction to the trustee
 
pursuant to Section 5.15 of the Indenture
 
prior
to the exercise of any Dutch
 
Bail-in Power by the relevant
 
resolution authority,
 
such direction shall cease to be of further effect
 
upon such exercise of any
 
Dutch
Bail-in Power and shall become null and void
 
at such time. Notwithstanding the foregoing,
 
if, following the completio
 
n
 
of the exercise of the Dutch Bail
 
-in Power by
the relevant resolution authority,
 
the notes remain outstanding (for
 
example, if the exercise
 
of the Dutch Bail-in Power results
 
in only a partial write-down of the
principal of the notes), then the trustee’s
 
duties under the Indenture shall remain applicable
 
with respect to the notes following
 
such completion to the extent that
the Issuer and the trustee shall agree.
 
By acquiring any of the notes, each holder of the notes
 
shall be deemed to have (a) consente
 
d
 
to the exercise of any Dutch
 
Bail-in Power as it may be imposed
without any prior notice by the relevant
 
resolution authority of its decision to exercise
 
such power with respect to the relevant
 
notes and (b) authorized, directed
and requested DTC and any
 
direct participant in DTC or other intermediary
 
through which it holds the relevant
 
notes to take any
 
and all necessary action, if
required, to implement the exercise
 
of any Dutch Bail-in Power
 
with respect to the relevant
 
notes as it may be imposed, without any
 
further action or direction on
the part of such holder or the trustee.
 
Under the terms of each of the 2022 notes, the 2027 notes
 
and the 2022 floating rate notes, the
 
exercise of the Dutch Bail-in Power
 
by the relevant resolution
authority with respect to the relevant
 
notes will not be an Event of Default
 
(as defined in the Indenture).
 
Terms Applicable
 
to All Senior Notes
 
The fixed rate notes and
 
floating rate notes (together,
 
the “
senior notes
”) were issued pursuant to the Senior Debt Securities
 
Indenture, dated as of March 29, 2017
(the “
Indenture
”), between ING and
 
The Bank of New
 
York
 
Mellon, London Branch,
 
as trustee. References
 
to “indenture” or
 
“senior debt indenture”
 
in this section
shall
 
mean the Indenture
 
as defined above
 
and references
 
to “trustee”
 
shall mean the
 
Bank of New
 
York
 
Mellon, London
 
Branch, One
 
Canada Square, London
 
E14
5AL, United Kingdom. References
 
to “notes” or “debt
 
securities” in this section shall mean the senior notes, as defined above.
 
The currency in which the payment of the principal of or any
 
premium or interest of the senior notes
 
shall be payable is US dollars.
Condition to Redemption or Repurchase
Notwithstanding any other provision,
 
and unless otherwise indicated in your prospectus
 
supplement, we may redeem or purchase
 
our debt securities (and give
notice thereof to the holders of such debt
 
securities in the case of redemption) only if we have
 
obtained the prior permission
 
of the relevant resolution authority
and/or competent authority,
 
as appropriate, at the time of redemption
 
or purchase, if such permission is at the relevant
 
time and in the relevant circumstances
required, and subject to applicable law or regulation
 
(including without limitation under Directive
 
2013/36/EU (CRD IV), Regulation (EU) No 575/2013
 
(CRR
including articles 77 and 78 thereof), Commission Delegated
 
Regulation (EU) No 241/2014 and Regulation
 
(EU) No 806/2014 (SRMR), as may be amended or
replaced from time to time, and any
 
delegated or implementing acts,
 
laws, regulations, regulatory technical
 
standards, rules or guidelines once in effect
 
in The
Netherlands and as then in effect).
 
Unless the relevant prospectus
 
supplement provides otherwise, we or our affiliates
 
may,
 
whether in the context of market
 
making or otherwise, purchase debt
securities, either in the open market at prevailing
 
prices or in private transactions
 
at negotiated prices, in each case subject to prior
 
permission of the relevant
resolution authority and/or competent
 
authority,
 
as appropriate, at the time of redemption
 
or purchase, if such permission is then required by
 
applicable law or
regulation including without limitation under
 
Directive 2013/36/EU (CRD IV), Regulation (EU)
 
No 575/2013 (CRR including articles 77 and 78 thereof), Commission
Delegated Regulation (EU) No
 
241/2014 and Regulation (EU) No 806/2014 (SRMR), as may
 
be amended or replaced from time to time, and any
 
delegated or
implementing acts, laws, regulations,
 
regulatory technical standards,
 
rules or guidelines once in effect in The Netherlands
 
and as then in effect). Debt securities that
we or they purchase may,
 
at our discretion, be held, resold or canceled.
As at the date of this Prospectus, the relevant
 
resolution authority is the Single Resolution Board
 
and the competent authority is the European
 
Central Bank.
Our Relationship with the Trustee
The Bank of New York Mellon, London Branch, One Canada Square, London E14 5AL, United Kingdom,
 
is initially serving as the trustee for all series of debt securities
to be issued under
 
each indenture. The Bank
 
of New York
 
Mellon has provided
 
commercial banking and
 
other services for us and
 
our related companies
 
in the past
and may continue to do so in the future. Among other things,
 
The Bank of New York Mellon serves
 
as, or may serve as, trustee or agent with regard
 
to certain of our
other outstanding debt obligations.
Consequently,
 
if an actual or potential event of default occurs
 
with respect to any of these securities, trust agreements
 
or subordinated guarantees,
 
the trustee may
be considered to have a conflicting interest
 
for purposes of the Trust Indenture
 
Act of 1939, as amended, or the Trust Indenture
 
Act. In that case, the trustee may be
required to resign under one or more of the indentures,
 
trust agreements or subordinated
 
guarantees and we would be required to
 
appoint a successor trustee. For
this purpose, a “potential event of default” means an event that would be an event of
 
default if the requirements for giving us default notice or for the default having
to exist for a specific period of time were
 
disregarded.
 
Ranking
 
The notes shall constitute the Issuer’s
 
unsecured and unsubordinated obligations,
 
ranking
pari passu
 
without any preference
 
among themselves and equally with all
of the Issuer’s other unsecured
 
and unsubordinated obligations
 
from time to time outstanding, save
 
as otherwise provided by law.
Paying Agent
 
The Bank of New
 
York Mellon,
 
London Branch, One
 
Canada Square, London
 
E14 5AL, United Kingdom
 
is designated as
 
the principal paying agent.
 
The Issuer may at
any time designate additional paying
 
agents or rescind the designation of paying
 
agents or approve a change in the office thr
 
ough which any paying agent acts.
 
Notice of Redemption
The Issuer shall give notice
 
of any redemption
 
of the notes not less
 
than 30 days or more
 
than 60 days prior
 
to the redemption date
 
to the holders of the
 
notes and
to the trustee at least 30 business days prior to such date, unless a shorter notice
 
period shall be satisfactory to the trustee. The redemption notice shall state: (1) the
redemption date, (2) the
 
redemption price, (3) that,
 
on the redemption date, each
 
note will be redeemed and
 
that, subject to certain exceptions,
 
interest will cease
to accrue after that date, (4) the place or
 
places where the notes are to be
 
surrendered for payment of the redemption price and (5) the CUSIP, Common Code and/or
ISIN number or numbers, if any,
 
with respect to the notes being redeemed.
The Issuer shall deliver to
 
the trustee an opinion from
 
a recognized law
 
or tax firm of international
 
standing, chosen by the Issuer,
 
prior to delivering any
 
notice of a
redemption upon the occurrence of certain tax
 
events, confirming that the Issuer
 
is entitled to exercise its right
 
of redemption as a result of such tax
 
events.
A notice
 
of
 
redemption
 
shall
 
be irrevocable,
 
except
 
that
 
the
 
exercise
 
of
 
the
 
Dutch
 
Bail-In
 
Power
 
by
 
the
 
relevant
 
resolution
 
authority
 
prior
 
to
 
the
 
date
 
fixed
 
for
redemption shall automatically revoke
 
such notice and no notes shall be redeemed and no payment
 
in respect of the notes shall be due and payable.
If the
 
Issuer has
 
elected to
 
redeem the
 
notes but
 
prior to
 
the payment
 
of the
 
redemption price
 
with respect
 
to such
 
redemption the
 
relevant
 
resolution authority
exercises its
 
Dutch Bail-in Power with
 
respect to the Issuer,
 
the relevant redemption
 
notice shall be automatically
 
rescinded and shall be of
 
no force and effect,
 
and
no payment of the redemption price will be due and
 
payable.
 
 
2019 ING Group Annual Report on Form 20-F
 
11
 
 
 
Redemption and Repayment
Unless otherwise
 
indicated in
 
your prospectus
 
supplement, your
 
debt security
 
will not
 
be entitled
 
to the
 
benefit of
 
any sinki
 
ng fund
 
— that
 
is, we
 
will not
 
deposit
money on a regular basis
 
into any separate
 
custodial account
 
to repay your
 
debt securities. In addition,
 
we will not be entitled
 
to redeem your
 
debt security before
its stated maturity,
 
if any, unless your
 
prospectus supplement specifies a redemption date.
 
You will not be entitled
 
to require us to buy your
 
debt security from you,
before its stated
 
maturity, if any,
 
unless your prospectus supplement specifies one or more
 
repayment dates.
 
Optional Tax and Regulatory
 
Redemption
Unless otherwise indicated
 
in your prospectus
 
supplement, we may
 
redeem each series
 
of debt securities
 
in whole, but
 
not in part,
 
at our option
 
at any time
 
upon
not more than 60 nor less than 30 days’
 
notice to the holders of such debt securities, at
 
a redemption price equal to the principal amount
 
of such debt securities (or
if the debt
 
securities are
 
original issue
 
discount securities,
 
such amount
 
as determined pursuant
 
to the formula
 
set forth
 
in the applicable
 
prospectus supplement)
plus any additional amounts due as a result
 
of any withheld tax, if:
 
●
 
we would
 
be required
 
to pay
 
additional amounts,
 
as explained in
 
the base prospectus
 
under “— Payment
 
of Additional
 
Amounts with
 
Respect to
 
the
Debt Securities,” as a result of any
 
change in or amendment to the tax laws (or any regulations
 
or rulings promulgated thereunder) of The Netherlands,
or of a jurisdiction in which a successor of ING is organized,
 
which becomes effective on or
 
after the date of issuance of that series;
 
●
 
a person located
 
outside The Netherlands, or
 
a jurisdiction in which a successor
 
of ING is organized,
 
to which we have
 
conveyed, transferred
 
or leased
property,
 
would
 
be required
 
to
 
pay
 
additional
 
amounts.
 
We
 
are
 
not required,
 
however,
 
to
 
use reasonable
 
measures
 
to
 
avoid
 
the obligation
 
to
 
pay
additional amounts in the event of such merger,
 
conveyance, transfer
 
or lease;
●
 
in the
 
case of
 
senior debt
 
securities only,
 
as a
 
result of
 
any amendment
 
to,
 
or change
 
in, any
 
Loss Absorption
 
Regulation
 
(as defined
 
below), or
 
any
change in the application
 
or official interpretation
 
of any Loss Absorption
 
Regulation, in any such
 
case becoming effective
 
on or after the original
 
issue
date of the series of
 
debt securities affected
 
(in each case other than
 
an Excluded Change, as
 
defined below), the debt
 
securities are or (in our
 
opinion
or that
 
of the
 
competent
 
authority
 
and/or
 
resolution
 
authority,
 
as appropriate)
 
are
 
likely
 
to
 
be fully
 
or
 
(if so
 
specified
 
in the
 
applicable
 
prospectus
supplement)
 
partially
 
excluded
 
from
 
our
 
and/or
 
the
 
Regulatory
 
Group’s
 
(as
 
defined
 
below)
 
minimum
 
requirements
 
for
 
(A)
 
own
 
funds
 
and
 
eligible
liabilities and/or (B) loss absorbing capacity instruments,
 
in each case as such minimum requirements are applicable to us and/or
 
the Regulatory Group
and
 
determined
 
in
 
accordance
 
with,
 
and
 
pursuant
 
to,
 
the relevant
 
Loss
 
Absorption
 
Regulations;
 
unless
 
the
 
exclusion
 
of the
 
relevant
 
series
 
of debt
securities from
 
the relevant
 
minimum requirement(s)
 
is due to
 
the remaining maturity
 
of the debt
 
securities being less
 
than any
 
period prescribed
 
by
any applicable eligibility criteria for such minimum requirements under the relevant Loss Absorption Regulations effective
 
with respect to us and/or the
Regulatory Group on the original issue
 
date of the series of debt securities affected;
 
or
If we redeem your debt security,
 
we will do so at the specified redemption price, together
 
with interest accrued to the redemption
 
date.
Our ability
 
to redeem
 
certain series
 
of debt
 
securities in
 
these circumstances
 
will be
 
subject to
 
obtaining the
 
prior permission
 
of the
 
relevant
 
resolution authority
and/or competent
 
authority,
 
as described
 
“Condition to
 
Redemption
 
or Repurchase”
 
below.
 
Unless otherwise
 
specified
 
in the
 
applicable prospectus
 
supplement,
such permission may be granted in the context of a redemption of debt securities for tax reasons only if there is a change
 
in the applicable tax treatment of such debt
securities which we demonstrate to the
 
satisfaction of the relevant resolution authority and/or competent authority, as applicable, is
 
material and was not reasonably
foreseeable at the time of the issuance
 
of the debt securities.
“
Excluded Change
” means
 
any amendment
 
to, or
 
change in,
 
the Loss
 
Absorption Regulations
 
to implement
 
the proposals
 
in the form
 
originally announced
 
by the
European Commission on
 
November 23, 2016 in order
 
to further strengthen
 
the resilience of EU banks
 
(the “Proposals”) or,
 
if the Proposals have
 
been amended as
at the original issue date of the relevant
 
series of debt securities, in the form as so amended as
 
at such date.
“
Loss Absorption Regulations
” means, at any
 
time, the laws, regulations,
 
requirements, guidelines, rules,
 
standards and policies
 
relating to minimum requirements
for own
 
funds and
 
eligible liabilities
 
and/or
 
loss absorbing
 
capacity instruments
 
of the
 
Netherlands,
 
the European
 
Central
 
Bank, the
 
Dutch
 
Central
 
Bank or
 
other
competent authority,
 
the resolution authority, the Financial Stability Board and/or of the European Parliament
 
or of the Council of the European Union then in effect
in the Netherlands and applicable to us and/or
 
the Regulatory Group including, without limitation
 
to the generality of the foregoing,
 
any delegated or implementing
acts
 
(such
 
as
 
regulatory
 
technical
 
standards)
 
adopted
 
by
 
the
 
European
 
Commission
 
and
 
any
 
regulations,
 
requirements,
 
guidelines,
 
rules,
 
standards
 
and
 
policies
relating to minimum
 
requirements for
 
own funds and
 
eligible liabilities and/or
 
loss absorbing capacity
 
instruments adopted
 
by the competent
 
authority and/or
 
the
resolution authority from time to time (whether or not
 
such regulations, requirements,
 
guidelines, rules, standards or policies are applied
 
generally or specifically to
us or to the Regulatory Group).
 
“
Regulatory
 
Group
” means
 
ING, its
 
subsidiary undertakings,
 
participations, participating
 
interests
 
and any
 
subsidiary undertakings,
 
participations or
 
participating
interests held (directly or indirectly)
 
by any of its subsidiary undertakings
 
from time to time and any other undertakings
 
from time to time consolidated
 
with ING for
regulatory purposes, in each case in accorda
 
nce with the rules and guidance of the competent authority
 
then in effect.
Mergers and Similar Transactions
 
We are generally permitted
 
to merge or consolidate with or into
 
another company.
 
We are also permitted to sell substantially
 
all our assets to another company.
With regard to any
 
series of debt securities, however,
 
we may not take
 
any of these actions unless all the following conditions
 
are met:
 
●
 
If we are not the successor entity,
 
the successor entity must expressly agree to
 
be legally responsible for the debt
 
securities of that series and the
indenture with respect to that series
 
and must be organized as
 
a corporation, partnership, trust,
 
limited liability company or similar entity.
 
The successor
entity may be organized
 
under the laws of any jurisdiction.
●
 
The merger,
 
sale of assets or other transaction must
 
not cause an event of default on the debt securities
 
or any event which, after notice or lapse
 
of time
or both, would become an event of default
If the conditions described above are satisfied
 
with respect to the debt securities of any
 
series, we will not need to obtain the approval
 
of the holders of those debt
securities in order to merge or consolidate
 
or to sell our assets. Also, these conditions
 
will apply only if we wish to merge or consolidate
 
with another entity or sell
our assets substantially as an entirety
 
to another entity.
 
We will not need to satisfy these conditions
 
if we enter into other types of transactions,
 
including any
transaction in which we acquire the stock
 
or assets of another entity,
 
any transaction that involves
 
a change of control of ING but in which we do not
 
merge or
consolidate,
 
and any transaction in which we sell less than
 
substantially all our assets.
 
Subject to applicable law and regulation (including
 
our obtaining the prior permission of the Single Resolution
 
Board (as resolution authority) and/or
 
the European
Central Bank (as competent authority),
 
or any successor relevant resolution
 
authority and/or competent authority,
 
as appropriate, if such permission is required),
any of our wholly owned subsidiaries may assume
 
our obligations under the debt securities of any
 
series without the consent of any holder.
 
We, however,
 
must
irrevocably guarantee
 
(on a subordinated basis in substantially
 
the manner described under “—
 
Debt Securities May Be Senior or Subordinated
 
— Subordination
Provisions” above, in the case of subordinated
 
debt securities) the obligations of the subsidiary under
 
the debt securities of that series. If we do, all of our direct
obligations under the debt securities of the series and
 
the applicable indenture shall immediately
 
be discharged. Unless the relevant
 
prospectus supplement
provides otherwise, any additional amounts
 
under the debt securities of the series will, to the extent provided
 
as described in the base prospectus under “—
Payment of Additional Amounts
 
with Respect to the Debt Securities”,
 
be payable in respect of any
 
taxes imposed by the jurisdiction
 
in which the successor entity is
organized, rather
 
than taxes imposed by The Netherlands,
 
subject to exceptions equivalent
 
to those that apply to any obligation
 
to pay additional amounts in
respect of taxes imposed by The Netherlands.
 
However,
 
if we make payment under
 
this guarantee, we shall also be required
 
to pay additional amounts related
 
to
taxes (subject to the exceptions
 
set forth in “— Payment
 
of Additional Amounts with Respect to the Debt Securities”
 
in the base prospectus) imposed by The
Netherlands due to this guarantee payment.
 
A subsidiary that assumes our obligations
 
will also be entitled to redeem the debt securities of the relevant
 
series in
the circumstances described under “—
 
Redemption and Repayment” above
 
with respect to any change or amendment
 
to, or change in the official application
 
of
the laws or regulations of the assuming corporation’s
 
jurisdiction of incorporation as long as the change
 
or amendment occurs after the date
 
of the subsidiary’s
assumption of our obligations.
 
Tax authorities,
 
including the U.S. Internal Revenue
 
Service, might deem an assumption of our obligations
 
as described above to be an exchange
 
of the existing
debt securities for new debt securities, resulting
 
in a recognition of taxable
 
gain or loss and possibly other adverse
 
tax consequences. Investors
 
should consult their
tax advisors regarding
 
the tax consequences of such an assumption. If we
 
merge, consolidate or sell our assets
 
substantially in their entirety,
 
neither we nor any
successor would have any obligation
 
to compensate you for any
 
resulting adverse tax consequences
 
relating to your debt securities.
 
Events of Default and Remedies
 
Events of Default and Acceleration
 
of Principal
Unless otherwise specified
 
in your prospectus supplement, an “event
 
of default”
 
with respect to any series of debt securities will result
 
only if:
●
 
we are declared bankrupt by a court
 
of competent jurisdiction in The Netherlands (or such other
 
jurisdiction in which we may be organi
 
zed); or
●
 
an order is made or
 
an effective resolution is passed for our winding-up or
 
liquidation, unless this is done
 
in connection with a merger, consolidation
or other form
 
of combination
 
with another company
 
and (a) we
 
are permitted
 
to enter
 
into such
 
merger,
 
consolidation or
 
combination pursuant
 
2019 ING Group Annual Report on Form 20-F
 
12
 
 
 
the provisions
 
described under “— Mergers
 
and Similar Transactions”
 
above or (b) the
 
requisite majority
 
of holders of
 
the relevant
 
series of debt
securities,
 
as
 
described
 
under
 
“Modifications
 
of
 
the
 
Indentures—Changes
 
Requiring
 
Majority
 
Approval”,
 
has
 
waived
 
the
 
requirement
 
that
 
we
comply with the covenant contained
 
in “— Mergers and Similar Transactions”
 
above.
 
Upon
 
the
 
occurrence
 
of
 
an
 
event
 
of
 
default,
 
and
 
only
 
in
 
such
 
instance,
 
the
 
entire
 
principal
 
amount
 
of
 
each
 
series
 
of
 
our
 
debt
 
securities
 
will
 
be
 
automatically
accelerated,
 
without any
 
action by
 
the trustee
 
or any
 
holder,
 
and will become
 
immediately due
 
and payable
 
together with
 
accrued but
 
unpaid interest,
 
subject to
obtaining the approvals described under “—Condition to Redemption
 
or Repurchase” above. The payment of principal of our debt securities will be accelerated
 
only
in the
 
event
 
of an
 
event
 
of default
 
(but not
 
the bankruptcy,
 
insolvency
 
or reorganization
 
of any
 
of our
 
subsidiaries). There
 
will be
 
no right
 
of acceleration
 
of the
payment of principal of our debt securities if we fail
 
to pay any principal, interest
 
or any other amount (including upon redemption) on
 
such debt securities or in the
performance of
 
any of
 
our covenants
 
or agreements
 
contained
 
in such
 
debt securities.
 
No such
 
payment default
 
or performance
 
default will
 
result in
 
an event
 
of
default under our debt securities
 
or permit any holders to
 
take action to enforce the debt
 
securities, except as described under “—Limited
 
Remedies for Non-Payment
and Breach of Obligations; Trust Indenture Act Remedies”
 
below. Moreover,
 
the exercise of any Dutch Bail-in Power by the relevant resolution authority, as described
under “— Agreement and Acknowledgment with Respect
 
to the Exercise of Dutch Bail
 
-in Power”
 
above, will not be an event of default.
 
Limited Remedies for Non-Payment
 
and Breach of Obligations; Trust Indenture
 
Act Remedies
 
The sole
 
remedies of
 
the holders
 
of our debt
 
securities and
 
the trustee
 
for our
 
breach of
 
any obligation
 
under the
 
debt securities
 
or the senior
 
debt indenture,
 
as
applicable, shall
 
be (1) to
 
demand payment
 
of any
 
principal or interest
 
that we
 
fail to
 
pay when
 
it has become
 
due and
 
payable and,
 
in the case
 
of interest,
 
where
such failure
 
continues for
 
at least
 
30 days
 
(provided that
 
the trustee
 
has provided
 
us with notice
 
of such failure
 
to pay
 
interest at
 
least 15 days
 
prior to the
 
end of
such 30-day period), (2) to seek enforcement
 
of any of our other obligations under any
 
debt security, the senior debt
 
indenture (other than any payment obligation)
or damages for our failure to satisfy any such obligation,
 
(3) to exercise the remedies described under “—Events
 
of Default” above and (4) to claim in any proceeding
relating to our liquidation (upon
 
dissolution (
ontbinding
) or otherwise),
 
moratorium of payments (
surseance van betaling
) or bankruptcy (
faillissement
). The foregoing
shall not prevent holders of our debt
 
securities or the trustee from instituting proceedings
 
for our bankruptcy.
Notwithstanding the foregoing,
 
(1) the trustee shall have such
 
powers as are required
 
to be authorized to it under
 
the Trust
 
Indenture Act in respect of the
 
rights of
the holders of our debt securities under the provisions of the senior debt indenture
 
and (2) nothing shall impair the right of a holder of our debt securities under the
Trust Indenture
 
Act, absent such holder’s consent, to
 
sue for any payment due but unpaid
 
with respect to its debt securities.
 
No Other Remedies
 
Other than
 
the limited
 
remedies specified
 
herein under
 
“Limited Remedies
 
for Non-Payment
 
and Breach
 
of Obligations;
 
Trust
 
Indenture Act
 
Remedies” above,
 
no
remedy against us will be available to the trustee (acting
 
on behalf of the holders of our debt securities) or holders of our debt securities whether for the recovery
 
of
amounts owing in respect of such debt securities or under the senior debt indenture or in respect of any breach by us
 
of any of our obligations under or in respect of
the terms of our debt securities or the senior debt indenture in relation thereto;
 
provided, however,
 
that such limitation shall not apply to our obligations to
 
pay the
fees and expenses of,
 
and to indemnify, the trustee
 
(including fees and expenses of trustee’s
 
counsel).
 
Trustee’s
 
Duties
In case of a default under any series
 
of our debt securities, the trustee shall exercise
 
such of the rights and powers
 
vested in it by the senior debt indenture,
 
and use
the same degree
 
of care and
 
skill in their
 
exercise, as
 
a prudent person
 
would exercise
 
or use under
 
the circumstances
 
in the conduct
 
of his or her
 
own affairs.
 
For
these purposes, a
 
“default” shall
 
occur upon (i) the
 
occurrence of
 
an event of
 
default, (ii) failure
 
by us to
 
pay any
 
principal or interest
 
when it has become
 
due and
payable
 
and, in the
 
case of
 
interest, where
 
such failure
 
continues for
 
at least
 
30 days
 
(provided that
 
the trustee
 
has provided
 
us with
 
notice of
 
such failure
 
to pay
interest
 
at least
 
15 days
 
prior to
 
the end
 
of such
 
30-day
 
period) or
 
(iii) breach
 
by us
 
of any
 
term, obligation
 
or commitment
 
(other than
 
any payment
 
obligation)
binding on us
 
under the relevant
 
series of debt
 
securities or the
 
senior debt
 
indenture. Holders
 
of a majority
 
of the aggregate
 
principal amount
 
of the outstanding
debt securities of a series may waive any past default specified
 
in clause (iii) in the preceding sentence but may not waive any past
 
default specified in clauses (i) and
(ii) in
 
the
 
preceding
 
sentence.
 
For
 
the
 
avoidance
 
of doubt,
 
the
 
exercise
 
of any
 
Dutch
 
Bail-in
 
Power
 
by
 
the
 
relevant
 
resolution
 
authority,
 
as described
 
under
 
“—
Agreement and Acknowledgment with Respect
 
to the Exercise of Dutch Bail-in
 
Power” above, will not be a default for these
 
purposes.
If a
 
default occurs
 
and is
 
continuing with
 
respect to
 
any series
 
of our
 
debt securities,
 
the trustee
 
will have
 
no obligation
 
to take
 
any action
 
at the
 
direction of
 
any
holders of such
 
series of the debt
 
securities, unless they
 
have offered
 
the trustee security
 
or indemnity satisfactory
 
to the trustee
 
in its sole discretion.
 
The holders
of a majority in aggregate princi
 
pal amount of the outstanding debt
 
securities of a series shall have the right
 
to direct the time, method and place of conducting
 
any
proceeding in
 
the name of
 
and on the
 
behalf of the
 
trustee for
 
any remedy
 
available to
 
the trustee
 
or exercising
 
any trust
 
or power conferred
 
on the
 
trustee with
respect to such
 
series of the
 
debt securities. However,
 
this direction
 
(a) must not
 
be in conflict
 
with any rule
 
of law or
 
the senior debt
 
indenture, as
 
applicable and
(b) must not be unjustly prejudicial to
 
the holder(s) of such series of the debt securities
 
not taking part in the direction, in the case
 
of either (a) or (b) as determined
by the trustee in its sole discretion. The trustee
 
may also take any
 
other action, not inconsistent with the direction,
 
that it deems proper.
The trustee
 
is required
 
to,
 
within 90
 
days
 
of a
 
default
 
with respect
 
to the
 
debt securities
 
of any
 
series, give
 
to each
 
affected
 
holder of
 
the debt
 
securities of
 
the
affected series notice of any default
 
known to a responsible officer of the trustee, unless the default
 
has been cured or waived. However,
 
the trustee will be entitled
to withhold notice if a trust committee of responsible
 
officers of the trustee determine in
 
good faith that withholding of notice is in
 
the interest of the holders.
The trustee makes no representations,
 
and shall not be liable with respect to, any information
 
set forth in this prospectus.
Limitation on Suits
Before you bypass
 
the trustee and bring your
 
own lawsuit or other formal
 
legal action or take
 
other steps to enforce
 
your rights or protect
 
your interests
 
relating to
the debt securities, all of the following must occur:
 
●
 
the holder must give the trustee a written
 
notice that a default has occurred and remains
 
uncured;
●
 
the holders
 
of 25%
 
in outstanding
 
principal amount
 
of the
 
debt securities
 
must make
 
a written
 
request
 
that the
 
trustee
 
take
 
action because
 
of the
default;
●
 
such holder must offer indemnity satisfactory
 
to the trustee in its sole discretion against
 
the cost and other liabilities of taking that
 
action;
●
 
the trustee must not have
 
taken action for 60 days
 
after receipt of the above notice and offer
 
of security or indemnity; and
●
 
the trustee must not have
 
received an inconsistent direction
 
from the majority in principal amount of the debt securities dur
 
ing that period.
Notwithstanding any contrary provisions, nothing shall impair the right of a holder of the debt securities
 
under the Trust Indenture Act, absent such holder’s consent,
to sue for any payments
 
due but unpaid with respect to the debt securities.
Modifications of the Indentures
There are four types of changes we can
 
make to a particular indenture
 
and the debt securities issued thereunder.
 
 
Changes Requiring Each Holder’s Approval
First, there are changes that
 
we or the
 
trustee cannot make without the
 
approval of each holder
 
of a debt
 
security affected by the change
 
under a particular
 
indenture.
We cannot:
 
●
 
change the stated maturity,
 
if any,
 
for any principal or interest
 
payment on a debt security;
●
 
reduce the principal amount, the amount payable on acceleration
 
of the maturity after an event of default, the interest
 
rate or the redemption price or
any premium for a debt security;
●
 
change our obligation to pay
 
additional amounts in respect of a debt security;
●
 
permit redemption of a debt security if not previously
 
permitted;
●
 
modify the provisions of the indenture with respect
 
to the subordination of the debt securities in
 
a manner adverse to holders;
●
 
impair any right a holder may have
 
to require repayment or
 
conversion of its debt security;
●
 
change the currency of any payment
 
on a debt security other than as permitted by the debt
 
security;
●
 
change the place of payment on a debt security,
 
if it is in non-global form;
 
2019 ING Group Annual Report on Form 20-F
 
13
 
 
 
●
 
impair a holder’s right to sue for payment
 
of any amount due on its debt security;
●
 
reduce the percentage in principal amount of the debt securities and any other affected series of debt securities, taken together,
 
the approval of whose
holders is needed to change the indenture
 
or the debt securities;
●
 
reduce the percentage
 
in principal amount
 
of the debt securities
 
and any other
 
affected series
 
of debt securities,
 
taken separately
 
or together,
 
as the
case may be, the consent of whose holders
 
is needed to waive our compliance with the applicable
 
indenture or to waive defaults;
 
and
●
 
change the provisions of the applicable
 
indenture dealing with modification and waiver in any other
 
respect, except to increase any required percentage
referred to above
 
or to add to the provisions that
 
cannot be changed or waived without approval
 
of the holder of each affected debt security.
 
Changes Not Requiring Approval
The second type
 
of change does
 
not require
 
any approval
 
by holders
 
of the debt
 
securities. These changes
 
are limited
 
to clarifications
 
and changes that
 
would not
adversely affect the debt securities in any material respect. Nor do we need any
 
approval to make any change that affects
 
only debt securities to be issued under the
applicable indenture after the changes
 
take effect.
We may
 
also make changes
 
or obtain waivers
 
that do not adversely
 
affect a particular
 
debt security,
 
even if they
 
affect other
 
debt securities. In
 
those cases, we
 
do
not need to
 
obtain the approval
 
of the holder of
 
that debt security;
 
we need only obtain
 
any required
 
approvals from
 
the holders of
 
the affected
 
debt securities or
other debt securities.
 
 
Changes Requiring Majority Approval
Any other change to either indenture
 
and the debt securities issued under that indenture
 
would require the following
 
approval:
 
●
 
if the
 
change affects
 
only one
 
series of
 
debt securities,
 
it must
 
be approved
 
by the
 
holders of
 
a majority
 
in principal
 
amount of
 
the relevant
 
series of
debt securities; or
●
 
if the
 
change affects
 
more than
 
one series of
 
debt securities
 
issued under
 
an indenture,
 
it must
 
be approved
 
by the
 
holders of
 
a majority
 
in principal
amount of the series affected
 
by the change, with all
 
affected series voting
 
together as one class
 
for this purpose (and of any
 
series that by its terms
 
is
entitled to vote separat
 
ely as a series, as described below).
In each case, the required approval
 
must be given by written consent.
The same majority
 
approval would
 
be required
 
for us to
 
obtain a waiver
 
of any of
 
our covenants
 
in either indenture.
 
Our covenants
 
include the promises
 
we make
about merging which we describe above under “— Mergers and
 
Similar Transactions.”
 
If the holders agree to waive a covenant, we will not have
 
to comply with it. A
majority of
 
holders, however,
 
cannot approve
 
a waiver
 
of any
 
provision in
 
a particular
 
debt security,
 
or in the
 
applicable indenture
 
as it
 
affects that
 
debt security,
that we
 
cannot change
 
without the approval
 
of each holder
 
of that debt
 
security as
 
described above
 
in “—
 
Changes Requiring
 
Each Holder’s
 
Approval” unless
 
that
holder approves the waiver.
Book-entry
 
and other
 
indirect owners
 
should consult
 
their banks
 
or brokers
 
for information
 
on how
 
approval
 
may be
 
granted
 
or denied
 
if we
 
seek to
 
change the
applicable indenture or the debt securities or request
 
a waiver.
 
Description of the 6.125% ING Perpetual Debt
 
Securities
 
The
 
6.125%
 
ING
 
Perpetual
 
Debt
 
Securities
 
(the
 
“
ING
 
Perpetual
 
Debt
 
Securities
”),
 
in
 
an
 
aggregate
 
principal
 
amount
 
of
 
$700,000,000,
 
were
 
issued
 
under
 
our
subordinated debt indenture, dated
 
as of July 18, 2002, between us and The Bank of New York,
 
101 Barclay Street, New York,
 
New York 10286, as trustee,
 
which we
refer
 
to as
 
the Subordinated
 
Indenture,
 
and a
 
fourth
 
supplemental
 
indenture,
 
to be
 
dated
 
as of
 
September
 
26, 2005,
 
between us
 
and The
 
Bank of
 
New York,
 
as
trustee, which
 
we refer
 
to as
 
the Supplemental
 
Indenture.
 
We refer
 
to the
 
Subordinated
 
Indenture and
 
the Supplemental
 
Indenture collectively
 
as the
 
Indenture.
The ING Perpetual Debt Securities are treated
 
as a separate series of our subordinated
 
debt securities.
 
Form and Denomination
 
We issued
 
the ING Perpetual
 
Debt Securities only
 
in fully registered
 
form, without coupons,
 
in the form
 
of beneficial interests
 
in one or more
 
global securities. The
ING Perpetual
 
Debt Securities
 
will be
 
issued in
 
denominations
 
of US$25
 
and integral
 
multiples thereof.
 
We
 
will issue
 
the ING
 
Perpetual
 
Debt Securities
 
as global
securities registered in the name of Cede & Co., as
 
nominee for DTC.
 
Interest
 
Subject to our right
 
to defer interest
 
payments as described
 
under “— Deferral
 
of Interest
 
Payments,”
 
interest on the
 
ING Perpetual Debt Securities
 
will be payable
quarterly in
 
arrears in
 
equal payments
 
for any
 
full Interest
 
Period on
 
January 15,
 
April 15, July
 
15 and
 
October 15
 
of each
 
year,
 
at a
 
fixed rate
 
per annum
 
on their
outstanding principal
 
amount equal to
 
6.125%, commencing on
 
January 15, 2006 (calculated
 
on a 30/360 day
 
basis). We refer
 
to such rate
 
as the Interest
 
Rate and
each such date as an interest payment date. If any interest payment date is not a business day,
 
interest will be payable on the next business day (without any interest
or other payment in respect of the delay).
 
The regular record dates
 
for each interest payment
 
date shall be January 1, April 1, July 1 and October 1, respectively.
 
Each
 
of
 
the
 
periods,
 
commencing
 
on
 
(and
 
including)
 
the
 
issue
 
date
 
and
 
ending
 
on
 
(but
 
excluding)
 
the
 
first
 
interest
 
payment
 
date,
 
and
 
each
 
successive
 
period
commencing on (and including) an
 
interest
 
payment date and ending on (but
 
excluding) the next succeeding interest payment date is referred to herein as
 
an Interest
Period.
 
Payments
 
 
Method of Payment
 
Payments of any amounts
 
in respect of any ING Perpetual Debt Securities represented
 
by global securities will be made by the trustee to DTC.
 
Any such payments of
interest and
 
certain other
 
payments on
 
or in respect
 
of the
 
ING Perpetual
 
Debt Securities
 
will be in
 
U.S. dollars
 
and will be
 
calculated by
 
the trustee
 
or such other
agent as we may appoint.
 
Except in a
 
bankruptcy,
 
all payments on
 
the ING Perpetual
 
Debt Securities will be
 
conditional upon
 
our being solvent
 
at the time of
 
payment, and we
 
will not make
any payment unless we will be solvent
 
immediately afterwards.
 
We refer to this
 
condition as the Required Deferral
 
Condition. For this purpose, we are
 
solvent if we
meet the following “solvency
 
conditions”:
 
●
 
we are able to make payments
 
on our Senior Debt as they become due, and
●
 
our assets exceed the sum of our liabilities (excluding
 
liabilities not considered Senior Debt).
 
Payments Subject to Fiscal Laws
 
All payments
 
made in respect
 
of the ING
 
Perpetual Debt
 
Securities will
 
be subject, in
 
all cases,
 
to any
 
fiscal or other
 
laws and
 
regulations applicable
 
thereto in
 
the
place of payment, but such laws or regulations
 
will not affect our obligation
 
to pay Additional Amounts.
 
Deferral of Interest Payments
 
Interest payments
 
and any other payments with respect to
 
the ING Perpetual Debt Securities will be subject to deferral
 
in the following circumstances.
 
 
Required Deferral of Payments
 
Except in the case of
 
a Mandatory Payment Event or a Mandatory Partial Payment Event, if the Required Deferral Condition is met on the 20th
 
business day preceding
the date on which any payment would, in the absence of deferral,
 
be due and payable, we must defer
 
any such payment. In such case, we will deliver a notice to the
trustee, the holders and the Calculation Agent,
 
not less than 16 business days prior to such date.
 
We refer to such
 
notice as a Deferral Notice.
 
Except in the case
 
of a Mandatory Payment
 
Event or a Mandatory
 
Partial Payment
 
Event, if,
 
after we defer a
 
payment as a result
 
of the Required Deferral
 
Condition
being met,
 
the Required
 
Deferral
 
Condition is
 
no longer
 
met on
 
the 20th
 
business day
 
preceding any
 
subsequent interest
 
payment
 
date, then
 
we will
 
satisfy such
payment on
 
the relevant
 
Deferred Interest
 
Satisfaction Date
 
by giving notice,
 
not less than
 
16 business days
 
prior to the Deferred
 
Interest Satisfaction
 
Date, to the
trustee, the holders and the Calculation Agent
 
that we will satisfy such payment
 
on such date.
 
We will not satisfy such payment
 
on the relevant Deferred
 
Interest Satisfaction
 
Date referred to
 
above, if:
 
 
2019 ING Group Annual Report on Form 20-F
 
14
 
 
 
●
 
we have
 
previously elected
 
to satisfy
 
such payment
 
earlier (provided
 
that, at
 
the time of
 
satisfying such
 
payment, the
 
Required Deferral
 
Condition fails
 
to
be met) by
 
delivering a
 
notice to
 
the trustee,
 
the holders
 
and the Calculation
 
Agent not
 
less than
 
16 business
 
days prior
 
to the
 
relevant
 
Deferred
 
Interest
Satisfaction Date that we will
 
satisfy such payment on such date;
 
or
●
 
we validly
 
elect to
 
use our
 
right to
 
optionally
 
defer
 
any
 
such payment
 
which would
 
otherwise have
 
been required
 
to
 
be paid
 
on such
 
Deferred
 
Interest
Satisfaction Date.
Any payment that we defer due to the Required Deferral
 
Condition will not accrue interest, except under the circumstances
 
we describe below under “— Alternative
Interest Satisfaction
 
Mechanism.”
 
Unless we obtain
 
permission from our
 
relevant regulator,
 
we are permitted
 
to satisfy
 
our obligation
 
to pay the
 
Deferred Interest
Payment
 
only in accordance with the Alternative Interest
 
Satisfaction Mechanism. See “— Alternative
 
Interest Satisfaction
 
Mechanism” below.
 
 
Optional Deferral of Payments
 
We may
 
defer all
 
or part of
 
any payment
 
that is due
 
and payable
 
by giving
 
a Deferral
 
Notice to
 
the trustee,
 
the Calculation
 
Agent and
 
the holders
 
not less than
 
16
business days
 
prior to
 
the relevant
 
due date.
 
We refer
 
to this
 
right to
 
defer as
 
an Elective
 
Deferral
 
Interest
 
Payment.
 
Except
 
in the
 
case of
 
a Mandatory
 
Payment
Event or a Mandatory Partial Payment
 
Event, we may satisfy any such payment
 
at any time, but, unless we obtain the prior consent of the relevant regulator,
 
only by
using the Alternative
 
Interest Satisfaction
 
Mechanism. When we use the
 
Alternative Interest
 
Satisfaction Mechanism,
 
we will deliver a notice
 
to the trustee
 
and the
Calculation Agent, not less than 16 business days prior
 
to the relevant Deferred
 
Interest Satisfaction
 
Date, informing them of our election to so satisfy
 
such payment
and specifying the relevant Deferred
 
Interest Satisfaction
 
Date.
 
Elective Deferral
 
Interest Payments
 
will bear interest
 
at a rate
 
equal to 6.125%
 
from (and
 
including) the date
 
on which, but
 
for such deferral,
 
the Deferred
 
Interest
Payment would otherwise have
 
been due to be made to (but excluding) the
 
relevant Deferred
 
Interest Satisfaction
 
Date.
 
Dividend Stopper; Mandatory Interest
 
Payment
 
We will give a Deferral Notice in the case of a Required
 
Deferral Condition and we may give a Deferral
 
Notice, in our sole discretion and for any reason, in the case of
an Elective
 
Deferral
 
Interest
 
Payment,
 
except
 
that a
 
Deferral
 
Notice as
 
to a
 
payment
 
required
 
to be
 
paid pursuant
 
to a
 
Mandatory
 
Payment
 
Event
 
or Mandatory
Partial Payment Event
 
will have no force or effect.
 
 
Dividend Stopper
 
We agree in the
 
Indenture that, beginning on the
 
day we give a
 
Deferral Notice until all Deferred Interest Payments are paid or
 
satisfied in full,
 
we will not recommend
to
 
our shareholders,
 
and to
 
the fullest
 
extent
 
permitted
 
by
 
applicable
 
law,
 
we will
 
otherwise act
 
to
 
prevent
 
a Mandatory
 
Payment
 
Event
 
or a
 
Mandatory
 
Partial
Payment Event
 
from occurring. Subject to
 
the occurrence of a Regulatory
 
Notification as described under
 
“—
 
Alteration of Terms
 
upon a Regulatory Notification”,
 
a
Mandatory Payment Event
 
occurs if:
●
 
we declare, pay or distribute a dividend or make
 
a payment (other than a dividend in the form of Ordinary Shares) on any
 
of our Junior Securities or make a
payment on a Junior Guarantee;
●
 
any of
 
our subsidiaries
 
or any
 
entity in
 
which we
 
have a
 
direct or
 
indirect financial,
 
commercial
 
or contractual
 
majority interest,
 
which we
 
refer
 
to as
 
an
Undertaking, declares,
 
pays
 
or distributes
 
a dividend
 
on any
 
security issued
 
by it
 
benefitting
 
from a
 
Junior Guarantee
 
or makes
 
a payment
 
(other than
 
a
dividend in the form of ordinary shares)
 
on any security issued by it benefitting from a Junior
 
Guarantee;
●
 
we or any of our subsidiaries or Undertakings
 
redeems, purchases or otherwise acquires
 
for any consideration
 
any of our Junior Securities, Parity
 
Securities
or securities issued by any of our subsidiaries or Undertakings
 
benefitting from a Junior Guarantee
 
or Parity Guarantee, other than:
o
 
by conversion into
 
or in exchange for our Ordinary
 
Shares
o
 
in connection with
 
transactions effected
 
by or for
 
the account
 
of our customers
 
or customers
 
of any of
 
our subsidiaries
 
or in connection
 
with the
distribution, trading or market
 
-making activities in respect of those securities
o
 
as a result of a reclassification of us or any
 
of our subsidiaries or the exchange or conversion
 
of one class or series of capital stock for
 
another class
or series of capital stock; or
o
 
the
 
purchase
 
of
 
fractional
 
interests
 
in
 
shares
 
of
 
our
 
capital
 
stock
 
or
 
the
 
capital
 
stock
 
of
 
any
 
of
 
our
 
subsidiaries
 
pursuant
 
to
 
the
 
conversion
 
or
exchange provisions
 
of that capital stock (or the security being converted
 
or exchanged); or
●
 
any moneys
 
are paid
 
to or made
 
available for
 
a sinking fund
 
or for
 
redemption of
 
any Junior
 
Securities, Parity
 
Securities or
 
any securities
 
issued by any
 
of
our subsidiaries or Undertakings
 
benefitting from a Junior Guarantee
 
or Parity Guarantee.
Subject to the occurrence of a Regulatory
 
Notification as described under “— Alteration
 
of Terms upon
 
a Regulatory Notification”,
 
a Mandatory Partial Payment
Event occurs if:
 
●
 
we declare, pay or distribute a
 
dividend or make a payment on
 
any of our Parity Securities or make any
 
payment on any of our Parity
 
Guarantees; or
●
 
any of our subsidiaries or Undertakings declares,
 
pays or distributes a dividend on any
 
security issued by it benefitting from a Parity
 
Guarantee or makes
 
a
payment on any security issued by
 
it benefitting from a Parity Guarantee.
 
Mandatory Interest Payment
 
If a Mandatory Payment Event
 
occurs, then:
 
●
 
all Deferred Interest
 
Payments will become mandatorily
 
due and payable in full on the date of the Mandatory
 
Payment Event,
 
notwithstanding any further
Deferral Notice or an occurrence
 
or continuance of the Required Deferral
 
Condition. Unless we obtain the prior consent
 
of our relevant regulator,
 
we may
only satisfy our obligations to pay
 
such Deferred Interest
 
Payments in accordance
 
with the Alternative Interest
 
Satisfaction Mechanism; and
●
 
the interest payments
 
payable on the next four consecutive
 
interest payment dates,
 
the next two consecutive interest
 
payment dates or the next interest
payment date, as the case may
 
be, after the occurrence of such Mandatory
 
Payment Event,
 
depending on whether the Junior Securities, Parity Securities,
or the security benefitting from the Junior Guarantee
 
or the Parity Guarantee pay
 
dividends or income distributions on an annual basis, a semiannual
 
basis
or a quarterly basis, respectively,
 
will be mandatorily due and payable
 
in full on each such next interest payment
 
date, notwithstanding any
 
Deferral Notice
as to such interest payments
 
or the occurrence or continuance of any Required
 
Deferral Condition. We
 
are permitted, but shall not be required,
 
to satisfy
our obligation to make the
 
interest payments
 
payable on such interest
 
payment date, other than Deferred
 
Interest Payments,
 
in accordance with the
Alternative Interest Satisfaction
 
Mechanism.
If a Mandatory Partial Payment
 
Event occurs, then:
 
●
 
all Deferred Interest
 
Payments will become mandatorily
 
due and payable in full on the date of the Mandatory
 
Partial Payment Event,
 
notwithstanding any
further Deferral Notice or an occurrence
 
or continuance of the Required Deferral
 
Condition. Unless we obtain the prior consent
 
of our relevant regulator,
we may only satisfy our obligations
 
to pay such Deferred Interest
 
Payments in accordance
 
with the Alternative Interest
 
Satisfaction Mechanism; and
●
 
Mandatory Partial Payments
 
in respect of each ING Perpetual Debt Security will be mandatorily
 
due and payable on the next four
 
consecutive interest
payment dates, the next two
 
consecutive interest payment
 
dates or the next interest
 
payment date, as the case may
 
be, after the occurrence of such
Mandatory Partial Payment
 
Event, depending on whether the Parity
 
Securities or the security benefitting from the Parity
 
Guarantee pay dividends
 
or
income distributions on an annual basis, a semiannual basis or
 
a quarterly basis, respectively,
 
notwithstanding any Deferral
 
Notice or an occurrence of the
Required Deferral
 
Condition. We are permitted,
 
but shall not be required, to satisfy
 
our obligation to pay any
 
Mandatory Partial Payments
 
in accordance
with the Alternative Interest
 
Satisfaction Mechanism.
Alternative Interest Satisfaction Mechanism
 
 
General
 
We are permitted to
 
satisfy our obligation to pay
 
you through the issuance of our Ordinary Shares
 
which, when sold, will provide a cash amount sufficient
 
for us to
make payments due to you
 
in respect of the relevant payment.
 
We refer to this
 
procedure as the Alternative Interest
 
Satisfaction Mechanism. Subject to
 
the
absence of a Required Deferra
 
l
 
Condition, we may elect to use the Alternative
 
Interest Satisfaction
 
Mechanism in order to satisfy our obligation
 
to make any
interest payment, including
 
any Mandatory Interest
 
Payment, by giving not less than 16 business
 
days’ notice to the trustee.
 
Our obligation to pay in accordance
 
with the Alternative Interest
 
Satisfaction Mechanism will be satisfied
 
as follows:
 
●
 
we will give at least 16 business days’
 
notice of the relevant interest
 
payment date to the trustee,
 
the Calculation Agent and
 
holders of the ING Perpetual
Debt Securities;
●
 
by the close of business on or before the seventh
 
business day prior to the relevant
 
interest payment date
 
or Deferred Interest
 
Satisfaction Date, we will
have authorized for
 
issuance such number of Ordinary Shares as, in the determination
 
of the Calculation Agent, have a market
 
value (after conversion
from euros into U.S. dollars)
 
of not less than 110% of the relevant payment
 
to be satisfied on such interest
 
payment date (each such Ordinary
 
Share is a
Payment Ordinary Share)
 
plus the claims for the costs and expenses
 
to be borne by us in connection with using the Alternative
 
Interest Satisfaction
Mechanism (including, without limitation, the fees and
 
expenses of the Calculation Agent);
 
2019 ING Group Annual Report on Form 20-F
 
15
 
 
 
●
 
the Calculation Agent will procure purchasers
 
for such Ordinary Shares as soon thereafter
 
as reasonably practicable, but not later
 
than the fourth business
day prior to the relevant Interest
 
Payment Date;
●
 
we will sell such Ordinary Shares in the open market
 
as instructed by the Calculation Agent
 
and collect any sales proceeds;
●
 
we will immediately transfer
 
the sales proceeds (or such amount of sales proceeds
 
as is necessary (after conversion from
 
euros into U.S. dollars)
 
to make
the relevant payment) to
 
the trustee on the business day preceding the payment
 
date for payment by
 
the trustee, on the payment date,
 
towards
applicable Interest Payments
 
to be satisfied;
●
 
if, after the operation
 
of the above procedures, there
 
would, in the opinion of the Calculation Agent, be a shortfall
 
on the date on which the relevant
payment is due, we will issue further Ordinary Shares
 
in accordance with the provisions of the Indenture
 
to ensure that a sum at least equal
 
to the relevant
payment is available to
 
make the payment in full on the relevant
 
due date. If, despite
 
these provisions, such a shortfall still exists
 
on the relevant due date
we may, in
 
accordance with the provisions of the
 
Indenture, either pay an amount equal to
 
such shortfall as soon as practicable to
 
the trustee or continue
to issue Ordinary Shares
 
until the trustee has received funds equal
 
to the full amount of such shortfall; and
●
 
if, pursuant
 
to the Alternative Interest
 
Satisfaction Mechanism, proceeds
 
are raised in excess
 
of the amount required to pay
 
the applicable payments plus
the claims for the fees, costs and
 
expenses to be borne by us in connection with using
 
the Alternative Interest Satisfaction
 
Mechanism, we will retain such
excess proceeds.
If we elect to make any payment
 
in accordance with the Alternative Interest
 
Satisfaction Mechanism, the receipt
 
of cash proceeds on the sale of our Ordinary
Shares issued to the trustee or its agent
 
will satisfy the relevant payment
 
or the relevant part of such payment.
 
The proceeds from the sale of Ordinary
 
Shares
pursuant to the Alternative
 
Interest Satisfaction Mechanism
 
will be paid to you by the trustee in respect
 
of the relevant payment.
 
 
Insufficiency of Payment Ordinary Shares
 
If we are to satisfy a payment
 
pursuant to the Alternative
 
Interest Satisfaction Mechanism
 
and we do not, on the date when the number of Payment
 
Ordinary
Shares required to be issued is determined,
 
have a sufficient number of Ordinary
 
Shares available for issue,
 
then we shall notify the trustee, the Calculation Agent
and the holders that all or part, as the case may
 
be, of the relevant payment cannot
 
be satisfied due to not having a sufficient number of
 
authorized Ordinary
Shares. In this case the payment or part
 
thereof shall be satisfied following the date
 
of our next annual general meeting or extraordinary
 
general meeting of our
shareholders at which a resolution is
 
passed authorizing a sufficient number of Ordinary Shares
 
available to satisfy all or such
 
part of the relevant payment. If,
however,
 
the number of Ordinary Shares authorized
 
to be issued at any such meeting is insufficient
 
to satisfy all or such part of the relevant
 
payment then those
Ordinary Shares so issued will be applied by us in partial satisfaction
 
of all or such part of the relevant payment.
 
Following the passage of a resolution which
authorizes us to issue additional Ordinary
 
Shares for this purpose, we will provide not less
 
than 16 business days’ notice to the trustee,
 
the Calculation Agent and
the holders of the date upon which the relevant
 
payment or,
 
as the case may be, the part thereof,
 
is to be made. The relevant payment
 
or, as
 
the case may be, the
part thereof, which is not
 
so satisfied will, unless it is a required Deferred
 
Interest Payment
 
and has not been subsequently either satisfied or
 
deferred pursuant
 
to
an Elective Deferral Interest
 
payment, continue to
 
accrue interest at a rate
 
of 6.125% from (and including) the date on which payment
 
would otherwise have been
due to (but excluding) the date
 
on which such payment or part thereof is satisfied
 
or, in the event
 
of a Market Disruption Ev
 
ent, the date on which such payment or
part thereof would, but for the occurrence
 
of such Market Disruption Event,
 
have been satisfied from which date
 
interest (if any)
 
will accrue on such payment as
provided in “— Market Disruption
 
Event” below.
 
If we do not have a sufficient number of Ordinary
 
Shares and do not hold an annual general meeting
 
within six months of giving the notice first mentioned
 
above,
at which a resolution to make
 
a sufficient number of Ordinary Shares available
 
is proposed, the trustee will by notice require
 
us to convene an extraordinary
general meeting at which such a resolution
 
will be proposed on a date falling within 10 weeks
 
of such notice from the trustee.
 
In the event that any such resolution
 
proposed at any such annual general
 
meeting or extraordinary general
 
meeting is rejected, the resolution
 
will be proposed at
each annual general meeting or any
 
extraordinary general meeting
 
thereafter until the resolution has
 
been passed by our shareholders.
 
At the date of this prospectus supplement,
 
we have a sufficient number of authorized
 
but unissued Ordinary Shares, and our Executive
 
Board has the necessary
authority to make the interest
 
payments required to be made in
 
respect of the ING Perpetual Debt Securities during
 
the next 12-month period, assuming the
Alternative Interest Satisfaction
 
Mechanism is used for each interest
 
payment during such 12-month period.
 
We will undertake in the Indenture
 
to keep available for
 
issue a sufficient number of authorized,
 
but unissued Ordinary Shares as we reasonably
 
consider would be
required to be issued as Payment
 
Ordinary Shares in connection with the next
 
four interest payments.
 
Should we fail to keep available
 
such unissued Ordinary
Shares, no damages will be payable in
 
connection with such failure. The trustee
 
may, however,
 
require that we, as soon as practicable,
 
hold an extraordinary
general meeting of our shareholders
 
at which a resolution will be passed to remedy such
 
failure.
 
The trustee is not obligated to
 
monitor whether we have a sufficient
 
number of unissued Ordinary Shares available
 
for issuance as Payment
 
Ordinary Shares and
the trustee is entitled to assume, unless it has
 
actual knowledge to the contrary,
 
that we are complying with our obligations
 
to do so.
 
 
Market Disruption Event
 
If, in our opinion, a Market
 
Disruption Event exists
 
on or after the 15th business day preceding any
 
date upon which a payment or part
 
thereof is due to be made or
satisfied pursuant to the Alte
 
rnative Interest Satisfaction
 
Mechanism, then we may give notice to the trustee,
 
the Calculation Agent and the holders
 
as soon as
possible after the Market Disruption
 
Event has arisen or occurred, whereupon
 
the relevant payment
 
will be deferred until such
 
time as, in our opinion, the Market
Disruption Event no longer exists.
 
Any such deferred payment
 
or part thereof will be satisfied as soon as practicable
 
after the Market Disruption Event
 
no longer exists. Except as
 
provided in the next
sentence, interest will not accrue
 
on such deferred payment
 
or part thereof, however,
 
during a Market Disruption Event.
 
If we do not make the relevant
 
payment
or part thereof for a period of 14 days
 
or more after its due date, even if the Market
 
Disruption Event is continuing,
 
interest shall accrue on such deferred
 
payment
or part thereof from (and including) the date
 
on which the relevant payment
 
or part thereof was due to be made to (but
 
excluding) the date on which such
payment or part thereof is made. Any
 
such interest shall accrue at the Interest
 
Rate and shall be satisfied only in accordance
 
with the Alternative Interest
Satisfaction Mechanism and as soon as
 
reasonably practicable after the relevant
 
deferred payment
 
is made. No liability shall attach to
 
the trustee or its agents if,
 
as
a result of a Market Disruption Event
 
or any other event outside the control
 
of the trustee or any such agent,
 
the trustee or any such agent is unable
 
to comply with
its duties in connection with any payment
 
made pursuant to the Alternative
 
Interest Satisfaction
 
Mechanism.
 
Alteration of Terms
 
upon a Regulatory Notification
 
Upon the occurrence of a Regulatory Notification,
 
the terms of the ING Perpetual Debt Securities will be automatically
 
altered, without any action by holders,
 
so
that a Mandatory Payment
 
Event, or a Mandatory Partial
 
Payment Event, as
 
applicable, will be deemed to occur only if we declare, pay
 
or distribute a dividend or
make a payment (other than a dividend
 
in the form of Ordinary Shares) on our Ordinary Shares
 
and/or other instruments which are
 
classified as equity under IFRS.
After the alteration, the ING Perpetual
 
Debt Securities will be considered capital securities
 
which, for purposes of IFRS, are classified as
 
equity applying IFRS
standards.
 
“Regulatory Notification” means,
 
after we become subject to capital adequacy
 
regulations, the relevant regulator
 
shall have notified us to the effect
 
that on any
date on which a payment on the ING Perpetual
 
Debt Securities would otherwise have been
 
due, our capital ratio would
 
after such payment be less than the
minimum capital adequacy requirements
 
as enforced by the relevant
 
regulator.
 
Subordination
 
The ING Perpetual Debt Securities constitute
 
our direct, unsecured, subordinated
 
securities and rank
pari passu
without any preference among
 
themselves.
 
The rights and claims of the holders of the ING Perpetual
 
Debt Securities are subordinated
 
to Senior Debt in that rights regarding
 
payments and the issuance of
Ordinary Shares (as described under “Alternative
 
Interest Satisfaction
 
Mechanism”) will be subject to the solvency conditions.
 
Upon our liquidation, moratorium of
payments or bankruptcy,
 
the holders of the ING Perpetual Debt Securities will rank,
 
effectively from a financial point
 
of view, in priority
 
to all holders of Junior
Securities and equally with the holders of our existing
 
most senior preference shares
 
and any other Parity Securities and Parity
 
Guarantees then outstanding.
 
Upon
our liquidation, moratorium of payments
 
or bankruptcy,
 
any payments on the ING Perpetual
 
Debt Securities will be subordinate to,
 
and subject in right of payment
to the prior payment in full of,
 
all Senior Debt.
 
For the purposes of the ING Perpetual Debt Securities,
 
our Senior Debt means:
●
 
all claims of our unsubordinated creditors;
●
 
all claims of creditors whose claims are, or are
 
expressed to be, subordinated
 
(whether only in the event of our insolvency or otherwise) only
 
to the claims
of our unsubordinated creditors;
 
and
●
 
all claims of all of our other creditors, except
 
those whose claims are, or are expressed
 
to rank,
pari passu
with, or junior to, the claims of holders of ING
Perpetual Debt Securities.
As of 31 December 2019, we had approximately
 
EUR 143.4 billion of Senior Debt outstanding.
 
 
2019 ING Group Annual Report on Form 20-F
 
16
 
 
 
The definition of Senior Debt described in the accompanying
 
prospectus under “Description of Debt Securities We
 
May Offer — The Senior Debt Indenture
 
and the
Subordinated Debt Indenture
 
—Subordination Provisions” does not
 
apply to the ING Perpetual Debt Securities. For
 
the purposes of the Indenture and the
description thereof in the accompanying
 
prospectus, all references to
 
Senior Debt shall be deemed to be references
 
to Senior Debt as described above.
 
We will agree in the Indenture
 
that, so long as any of the ING Perpetual Debt
 
Securities remain outstanding,
 
we will not issue any preference
 
shares (or other
securities which are akin to preference
 
shares as regards distributions
 
on a return of assets upon our liquidation or in respect
 
of distribution or payment of
dividends and/or any other amounts
 
thereunder by us) or give any guarantee
 
or contractual support arrangement
 
in respect of any of our preference
 
shares or
such other securities or in respect of any other entity
 
if such preference shares,
 
preferred securities, guarantees
 
or contractual support arrangements
 
would rank
(as regards distributions
 
on a return of assets upon our liquidation or in respect
 
of distribution or payment of dividends and/or
 
any other amounts thereunder by
us) senior to the ING Perpetual Debt Securities,
 
unless we alter the terms of the ING Perpetual
 
Debt Securities such that the ING Perpetual Debt Securities
 
rank
pari
passu
 
effectively from a financial
 
point of view with any such preference
 
shares, such other securities akin to preference
 
shares or such guarantee or support
undertaking.
 
Winding Up
 
If any action causes our liquidation (except
 
solely for the purpose of our reconstruction,
 
amalgamation or the substitution of a successor
 
in business for us, as
defined in the Indenture, the terms of which have
 
previously been approved
 
in writing by the trustee or by not less than a majority of the holders),
 
with respect to
each ING Perpetual Debt Security you
 
own, we will pay you (in lieu of any other payment)
 
an amount as if on and after the day immediately
 
before the liquidation
began, any holder of those ING Perpetual
 
Debt Securities had been the holder of our most senior class
 
of preference shares which
 
we refer to as the Notional
Preference Shares,
 
which have a preferential
 
right to a return of assets upon liquidation
 
over and so rank ahead of the holders
 
of all other classes of our issued
shares for the time being in our capital,
 
but ranking junior to the claims of Senior Debt. Any
 
such payment shall be made on the assumption
 
that the amount that
you were entitled to receive
 
in respect of each Notional Preference
 
Share on a return of assets upon liquidation
 
was an amount equal to the principal amount of
$25 of the relevant ING Perpetual
 
Debt Security and any other Outstanding
 
Payments together with, to
 
the extent not otherwise included within the foregoing,
 
the
pro rata share of any
 
Winding-Up Claims attributable to the ING Perpetual
 
Debt Security.
 
As a consequence of the subordination provisions,
 
the holders of the ING Perpetual Debt Securities may
 
recover less than the holders
 
of our unsubordinated
liabilities and the holders of certain of our subordinated
 
liabilities, including the holders of other subordinated
 
debt securities as described in the accompanying
prospectus under the heading “Description of Debt Securities
 
We May Offer.”
 
If, upon liquidation
 
the amount payable on any
 
ING Perpetual Debt Securities and
any claims ranking
pari passu
with the ING Perpetual Debt Securities are not paid in
 
full, the ING Perpetual Debt Securities and other claims
 
ranking equally will
share ratably in any
 
distribution of our assets upon liquidation in proportion
 
to the respective amounts to which they
 
are entitled. If any holder is entitled to any
recovery with respect to the ING Perpetual
 
Debt Securities upon liquidation, the holder might
 
not be entitled to a recovery in U.S.
 
dollars and might be entitled only
to a recovery in euros. In addition,
 
under current Dutch law,
 
our liability to holders of the ING Perpetual Debt
 
Securities would be converted
 
into euros at a date
close to the commencement of insolvency
 
proceedings against us and holders
 
of the ING Perpetual Debt Securities would be exposed
 
to currency fluctuations
between that date and the date
 
they receive proceeds pursuant
 
to such proceedings, if any.
Defaults; Limitation of Remedies
 
 
Payment Defaults
 
It is a Payment Default
 
with respect to the ING Perpetual Debt Securities if
 
we fail to pay or set aside
 
for payment the amount due
 
to satisfy any payment on the
ING Perpetual Debt Securities when due, and such
 
failure continues for 14 days;
provided, however
, that if we fail to make any
 
Mandatory Interest Payment
 
as a
result of failure to satisfy
 
the solvency conditions, or due to a deferral
 
of an interest payment
 
as permitted under the terms of the Indenture,
 
that payment will
constitute an Outstanding
 
Payment and will accumulate with
 
any other Outstanding Payments
 
until paid but will not be a Payment
 
Default.
 
 
Limitation of Remedies
 
If any Payment Default
 
occurs and continues regarding
 
the ING Perpetual Debt Securities, the trustee
 
may pursue all legal remedies available
 
to it, including
commencing a judicial proceeding for the collection
 
of the sums due and unpaid or a bankruptcy proceeding
 
in The Netherlands (but not elsewhere), but
 
the
trustee may not declare the principal amount
 
of any outstanding ING Perpetual
 
Debt Security to be due and payable. If we fail
 
to make payment and
 
the solvency
conditions are not satisfied at the end of the 14-day
 
period described under “— Payment Defaults,”
 
such failure does not constitute
 
a Payment Default but
 
instead
constitutes a Payment
 
Event. On a Payment
 
Event, the trustee may institute
 
bankruptcy proceedings exclusively
 
in The Netherlands, but may not pursue
 
any other
legal remedy,
 
including a judicial proceeding for the collection
 
of the sums due and unpaid.
 
Notwithstanding the foregoing, holders
 
of the ING Perpetual Debt Securities have the
 
absolute and unconditional right to institute
 
suit for the enforcement of any
payment when due and such right may
 
not be impaired without the consent of the
 
holder.
 
 
General
 
By purchasing ING Perpetual Debt Securities,
 
you and the trustee will be deemed to have
 
waived any right of set-off,
 
counterclaim or combination
 
of accounts with
respect to the ING Perpetual Debt Securities
 
or the Indenture (or between our obligations
 
regarding the ING Perpetual
 
Debt Securities and any liability owed by a
holder or the trustee to us) that they might
 
otherwise have against us.
 
Subject to the provisions of the Indenture relating
 
to the duties of the trustee, if a Payment
 
Default occurs and continues with respect
 
to the ING Perpetual Debt
Securities, the trustee will be under no obligation
 
to any holder of the ING Perpetual Debt
 
Securities, unless they have offe
 
red reasonable indemnity to the
 
trustee.
Subject to the Indenture provisions
 
for the indemnification of the trustee, the holders
 
of a majority in aggregate principal amount
 
of the outstanding ING Perpetual
Debt Securities have the right to direct
 
the time, method and place of conducting any proceeding
 
for any remedy available
 
to the trustee or exercising
 
any trust or
power conferred on the trustee
 
with respect to the series, if the direction is not in
 
conflict with any rule of law or with the Indenture
 
and the trustee does not
determine that the action would be unjustly
 
prejudicial to the holder or holders of any
 
ING Perpetual Debt Securities not taking part
 
in that direction. The trustee
may take any
 
other action that it deems proper that is not inconsistent
 
with that direction.
 
The Indenture provides that the trustee
 
will, within 90 days after the occurrence of a Payment
 
Default with respect to the ING Perpetual
 
Debt Securities, give to
each holder of the ING Perpetual Debt Securities notice of the Payment
 
Default known to it, unless the Payment
 
Default has been cured or waived.
 
The trustee will
be protected in withholding notice, however,
 
if it determines in good faith that
 
withholding notice is in the interest of the holders.
 
We are required to furnish
 
to the trustee, on an annual basis a statement
 
as to our compliance with all conditions and covenants
 
under the Indenture.
Optional Redemption and Redemption upon
 
Certain Events
 
 
Optional Redemption
 
The ING Perpetual Debt Securities are perpetual debt
 
securities and have no fixed
 
maturity or mandatory redemption date.
 
The ING Perpetual Debt Securities are
not redeemable at the option of the holder of an ING Perpetual
 
Debt Security at any time and are not redeemable at
 
our option prior to January 15, 2011, except
 
in
certain limited circumstances.
 
See “— Redemption upon Certain Events”
 
below.
 
We may redeem the ING Perpetual
 
Debt Securities in whole (but not in part) at our option, on
 
January 15, 2011, or on any interest
 
payment date thereafter at
 
their
aggregate principal amount toge
 
ther with Outstanding Payments
 
due through the date of redemption, which
 
sum we refer to as the Base Redemption
 
Price.
 
We may purchase on the
 
open market at any time ING Perpetual
 
Debt Securities in any manner and at any
 
price.
 
Cancellation of any ING Perpetual
 
Debt Securities so redeemed by us will be effected
 
by reducing the principal amount of the global ING Perpetual
 
Debt Securities,
and any ING Perpetual Debt Securities so cancelled
 
may not be reissued or resold and
 
our obligations in respect of any such cancelled
 
ING Perpetual Debt Securities
will be discharged. ING Perpetual Debt
 
Securities purchased by us may be held, reissued,
 
resold or,
 
at our option, be cancelled by decreasing in an equal
 
amount
the principal amount of ING Perpetual Debt Securit
 
ies represented by the Global Security.
 
 
Redemption Upon Certain Events
 
Tax Event.
 
Upon the occurrence of a Tax
 
Event with respect to
 
the ING Perpetual Debt Securities, we may,
 
by giving notice of redemption, redeem in
 
whole (but
not in part) the ING Perpetual Debt Securities at
 
their Base Redemption Price.
 
“Tax Event” means we determine
 
that immediately prior to the giving of the
 
notice referred to below,
 
on the next interest pay
 
ment date:
 
●
 
we would, for reasons outside our
 
control, be unable to make such
 
payment without being required to
 
pay Additional Amounts and we cannot
 
avoid the
requirement or circumstance
 
by taking measures as we (acting in good faith)
 
deem appropriate;
●
 
payments of amounts in respect of interest
 
on the ING Perpetual Debt Securities, including, for
 
the avoidance of doubt, the issue of Ordinary
 
Shares
pursuant to the Alternative
 
Interest Satisfaction Mechanism,
 
may be treated as “distributions”
 
within the meaning of Section II of the Dividend
Withholding Tax
 
Act 1965 (
Wet op de dividendbelasting
 
1965
; or such other provision as may from time
 
to time supersede or replace Section II of the
 
2019 ING Group Annual Report on Form 20-F
 
17
 
 
 
Dividend Withholding Tax
 
Act 1965 for the purposes of such definition) and we cannot
 
avoid the requirement or circumstance
 
by taking such measures as
we (acting in good faith) deem appropriate;
 
or
●
 
as a result of any proposed change or amendment
 
to the laws of The Netherlands, or any
 
proposed change in the application of official
 
or generally
published interpretation
 
of such laws, or any interpretation
 
or pronouncement by any relevant
 
tax authority that provides for
 
a position with respect to
such law or regulations that differs
 
from the previously generally accepted
 
position in relation to similar transactions
 
or which differs from any
 
specific
written confirmation given by
 
a tax authority in respect of the ING Perpetual
 
Debt Securities, which change or amendment becomes,
 
or would become,
effective, or in the case of a change
 
or proposed change in law if such change is enacted
 
(or,
 
in the case of a proposed change, is expected
 
to be enacted)
by Act of Parliament or made by Statutory
 
Instrument on or after September 16, 2005, there
 
is more than an insubstantial risk
 
that we will not obtain
substantially full relief for the
 
purposes of Dutch corporation tax
 
for any payment of interest
 
including, for the avoidance of doubt, where the
 
payment of
interest is to be satisfied
 
by the issue of Ordinary Shares pursuant
 
to the Alternative Interest
 
Satisfaction Mechanism and we cannot
 
avoid this risk by
taking such measures as we (acting in good faith)
 
deem appropriate.
In the case of redemption upon the occurrence of a Tax
 
Event, we are required,
 
before we give a notice of redemption,
 
to deliver to the trustee a written
 
legal
opinion of independent Netherlands counsel
 
of recognized standing, selected
 
by us, in a form satisfactory
 
to the trustee confirming that we
 
are entitled to exercise
our right of redemption.
 
 
Regulatory Event.
Upon the occurrence of a Regulatory Event
 
with respect to the ING Perpetual Debt Securities,
 
we may by giving notice of redemption,
 
at
any time redeem the ING Perpetual
 
Debt Securities in whole (but not in part) at their Base Redemption
 
Price.
 
“Regulatory Event” means any
 
time after we become subject to capital
 
adequacy regulations, the relevant
 
regulator makes a determination
 
that securities of the
nature of the ING Perpetual Debt Securities can
 
no longer qualify as Tier 1 Capital (or instruments
 
of a similar nature which qualify as core
 
capital) for purposes of
such capital adequacy regulations.
 
Notice of Redemption
 
We must give 30 to 60 days’
 
notice of redemption to the holders of the ING Perpetual
 
Debt Securities. Any notice of redemption
 
is irrevocable and must be given
 
as
described in the accompanying prospectus.
 
If the redemption price in respect of any ING Perpetual
 
Debt Securities is improperly withheld or refused
 
and is not paid
by us, interest on the ING Perpetual
 
Debt Securities will continue to be payable
 
until the redemption price is actually paid.
 
Calculation Agent
 
So long as any of the ING Perpetual Debt Securities
 
are outstanding, we will ensure that
 
there will always be a Calculation
 
Agent. If the Calculation Agent is unable
or unwilling to act as such, or if it fails to make
 
a determination, calculation or otherwise
 
fails to perform its duties under the Indenture
 
or the Calculation Agency
Agreement, we will appoint an independent
 
investment bank acceptable to
 
the trustee to act as such in its place. Subject to certain
 
limited exceptions,
 
neither the
termination of the Calculation Agent’s
 
appointment nor the Calculation Agent’s
 
resignation will be effective
 
without a successor having been appointed.
 
All calculations and determinations made by
 
the Calculation Agent with respect to the ING Perpetual
 
Debt Securities (except in the
 
case of manifest error) are final
and binding on us, the trustee and the holders.
 
Neither we nor the trustee have any
 
responsibility to anyone for any
 
errors or omissions in any calculation
 
by the Calculation
 
Agent.
 
Modifications of the Indentures
 
There are four types of changes we can
 
make to a particular indenture
 
and the debt securities issued thereunder.
 
 
Changes Requiring Each Holder’s Approval
 
First, there are changes that
 
we or the trustee cannot make
 
without the approval of each holder of a debt
 
security affected by
 
the change. We cannot:
 
●
 
change the stated maturity,
 
if any,
 
for any principal or interest
 
payment on a debt security
●
 
reduce the principal amount, the amount payable
 
on acceleration of the maturity after a default,
 
the interest rate or
 
the redemption price for a debt
security;
●
 
permit redemption of a debt security if not previously
 
permitted;
●
 
impair any right a holder may have
 
to require repayment of
 
its debt security;
●
 
change the currency of any payment
 
on a debt security other than as permitted by the debt
 
security;
●
 
change the place of payment on a debt security,
 
if it is in non-global form;
●
 
impair a holder’s right to sue for payment
 
of any amount due on its debt security;
●
 
reduce the percentage in principal amount
 
of the debt securities and any other affected
 
series of debt securities, taken toge
 
ther, the approval
 
of whose
holders is needed to change the indenture
 
or the debt securities;
●
 
reduce the percentage in principal amount
 
of the debt securities and any other affected
 
series of debt securities, taken separately
 
or together,
 
as the case
may be, the consent of whose holders
 
is needed to waive our compliance with the applicable
 
indenture or to waive defaults;
 
and
●
 
change the provisions of the applicable indenture
 
dealing with modification and waiver in any
 
other respect, except to increase
 
any required percentage
referred to above
 
or to add to the provisions that
 
cannot be changed or waived without approval.
 
Changes Not Requiring Approval
 
The second type of change does not require any
 
approval by holders of the debt securities.
 
This type is limited to clarifications and changes
 
that would not
adversely affect the debt securities
 
in any material
 
respect. Nor do we need any approval
 
to make any change that
 
affects only debt securities to be issued
 
under each indenture after the changes take
 
effect.
 
We may also make
 
changes or obtain waivers
 
that do not adversely affect a particular
 
debt security,
 
even if they affect other debt securities.
 
In those cases, we do
not need to obtain the approval of the
 
holder of that debt security; we need only obtain any
 
required approvals from
 
the holders of the affected debt
 
securities or
other debt securities.
 
 
Changes Requiring Majority Approval
 
Any other change to either indenture
 
and the debt securities would require the following
 
approval:
 
●
 
if the change affects only one series of debt securities,
 
it must be approved by the holders
 
of a majority in principal amount of the relevant
 
series of debt
securities; or
●
 
if the change affects more than
 
one series of debt securities issued under an indenture, it must
 
be approved by the holders of a majority in principal
amount of the series affected
 
by the change, with all affected
 
series voting together as one class for this
 
purpose.
In each case, the required approval
 
must be given by written consent.
 
The same majority approval would
 
be required for us to obtain
 
a waiver of any of our covenants
 
in either indenture. Our covenants
 
include the promises we make
about merging which we describe above under
 
“— Mergers and Similar Transactions.”
 
If the holders agree to waive a covenant,
 
we will not have to comply with it.
 
Modification of Subordination Provisions
 
We may not amend the subordinated
 
debt indenture to alter the subordination
 
of any outstanding subordinated
 
debt securities without the written consent
 
of
each holder of senior indebtedness then outstanding
 
who would be adversely affected.
 
In addition, we may not modify the subordination
 
provisions of the
subordinated debt indenture
 
in a manner that would adversely affect
 
the outstanding subordinated
 
debt securities of any one or more series in any
 
material
respect, without the consent of the holders
 
of a majority in aggregate principal amount
 
of all affected series, voting
 
together as one class.
 
Paying Agent
 
We may appoint one or more
 
financial institutions to act as our paying
 
agents, at whose designated offices debt securities
 
in non-global form may be surrendered
for payment at their maturity.
 
We call each of those offices a paying
 
agent. We may add, replace
 
or terminate paying agents
 
from time to time. We
 
may also
choose to act as our own paying agent. Initially,
 
we have appointed the trustee,
 
at its corporate trust
 
office in New York
 
City, as the paying
 
agent. We must notify
you of changes in the paying agents.
 
Mergers and Similar Transactions
 
 
2019 ING Group Annual Report on Form 20-F
 
18
 
 
 
We are generally permitted
 
to merge or consolidate with or into
 
another company.
 
We are also permitted to sell substantially
 
all our assets to another company.
With regard to any
 
series of debt securities, however,
 
we may not take
 
any of these actions unless all the following conditio
 
ns are met:
 
●
 
if we are not the successor company,
 
the successor company must expressly
 
agree to be legally responsible for
 
the debt securities of that series and must
be organized as a corporation,
 
partnership, trust, limited liability company
 
or similar entity,
 
but may be organized
 
under the
 
laws of any jurisdiction; and
●
 
the merger,
 
sale of assets or other transaction must not cause
 
a default on the debt securities, and we must not
 
already be in default, unless the merger or
other transaction would cure the default.
 
For purposes of this no-default test,
 
a default would include an event of default
 
that has occurred and not been
cured, as described below under “Default Remedies
 
and Waiver of Default
 
— Events of Default.”
 
A default for this purpose would
 
also include any event
that would be an event of default
 
if the requirements for giving
 
us default notice or our default having
 
to exist for a specific period of time were
disregarded.
If the conditions described above are satisfied
 
with respect to the debt securities of any
 
series, we will not need to obtain the approval
 
of the holders of those debt
securities in order to merge or consolidate
 
or to sell our assets. Also, these conditions
 
will apply only if we wish to merge or consolidate
 
with another entity or sell
our assets substantially as an entirety
 
to another entity.
 
We will not need to satisfy these conditions
 
if we enter into other types of transactions,
 
including any
transaction in which we acquire the stock
 
or assets of another entity,
 
any transaction that involves
 
a change of control of ING but in which we do not
 
merge or
consolidate, and any transaction
 
in which we sell less than substantially all our
 
assets.
 
Also, if we merge, consolidate
 
or sell our assets substantially as an entirety,
 
neither we nor any successor would have
 
any obligation to
 
compensate you for any
resulting adverse tax consequences
 
relating to your debt securities.
 
Glossary
 
Certain defined terms that are used in
 
this section are defined in the following glossary.
 
Terms used
 
in the description of our ING Perpetual Debt Securities
 
which
are not defined herein are defined
 
in the accompanying prospectus or
 
in the Indenture.
 
“Accrued Interest
 
Payment”
 
means interest that shall continue
 
to accrue after an interest
 
payment date in respect of an Elective
 
Deferral Interest
 
Payment, the
failure to make a payme
 
nt when due on a date of redemption,
 
certain payments which cannot be made due
 
to insufficient Ordinary Shares to
 
satisfy the
Alternative Interest Satisfaction
 
Mechanism and failure to make
 
a payment more than 14 days
 
after its due date due to a Marke
 
t
 
Disruption Event.
 
“Additional Amounts”
 
has the meaning set forth under “Description
 
of the ING Perpetual Debt Securities — Additional Amounts.”
 
“Alternative Interest
 
Satisfaction Mechanism”
 
has the meaning set forth under “Description
 
of the ING Perpetual Debt Securities — Alternative
 
Interest
Satisfaction Mechanism.”
 
“assets”
 
means our non-consolidated gross assets
 
as shown by our most recent published audited
 
balance sheet but adjusted for contingencies
 
and for subsequent
events and to such extent
 
as the directors or,
 
as the case may be, the liquidator may
 
determine to be appropriate.
 
 
“Calculation Agency Agreement”
 
means the calculation agency agreement to
 
be dated as of September 26, 2005, between
 
us and the Calculation Agent, relating
to the ING Perpetual Debt Securities under
 
which the Calculation Agent agrees to perform
 
the duties required of it under the terms of the Indenture.
 
“Calculation Agent”
 
means ING Financial Markets LLC, as calculation
 
agent in relation to the ING Perpetual
 
Debt Securities, or its successor or successors
 
for the
time being appointed under the Calculation Agency Agreement.
 
“Deferred Interest Payment”
 
means
●
 
any payment, or part thereof,
 
which we have deferred as
 
described under “Required Deferral
 
of Payments” and which has not
 
subsequently been either (i)
satisfied or (ii) deferred as described
 
under “Optional Deferral
 
of Payments”; or
●
 
any payment, or part thereof,
 
which we have elected to defer
 
in accordance with the Elective Deferral
 
Interest Payment
 
and which has not been satisfied.
Deferred Interest Satisfaction Date”
 
means:
 
●
 
the Interest Payment
 
Date following the 19th business day
 
after the Required Deferral
 
Condition fails to be met;
●
 
if other than an Interest Payment
 
Date, the date on which we resolve
 
to satisfy a Deferred
 
Interest Payment,
 
as notified by us to the trustee, the holders
and the Calculation Agent; or
●
 
the date on which we are required
 
to satisfy all Deferred Interest
 
Payments as a result
 
of the occurrence of a Mandatory Payment
 
Event or a Mandatory
Partial Payment Event.
“Deferral Period”
 
means the period commencing on (and including) the date we gave
 
a Deferral Notice and ending
 
on (and including) the date upon which all
Deferred Interest
 
Payments are paid or satisfied
 
in
 
 
“ING Perpetual Debt Securities”
 
means the 6.125% ING Perpetual Debt Securities and such
 
expression shall include, unless the context
 
otherwise requires, any
further ING Perpetual Debt Securities which we are
 
permitted to issue and which will form
 
a single series with the ING Perpetual Debt Securities.
 
“interest”
 
shall, where appropriate, include Interest
 
Amounts, Deferred Interest
 
Payments and Accrued Interest
 
Payments.
 
“Interest Amount”
 
means:
 
●
 
in respect of an interest payment,
 
the amount of interest payable
 
on an ING Perpetual Debt Security for the relevant
 
Interest Period; and
●
 
in the event of redemption due to a Tax
 
Event or Regulatory
 
Event, any interest
 
accrued from (and including) the preceding interest
 
payment date (or,
 
if
none, the issue date of the ING Perpetual Debt
 
Securities) to (but excluding) the due date
 
for redemption, if not an interest
 
payment date, as calculated
using the 30/360 day basis
“interest payment”
 
means, in respect of an interest payment
 
date, the aggregate Interest
 
Amounts for the Interest
 
Period ending on such interest
 
payment date.
 
“Interest Period”
 
means the period commencing on (and including) the issue date
 
and ending on (but excluding) the first
 
interest payment date
 
and each
successive period commencing on (and including) an interest
 
payment date and
 
ending on (but excluding) the next succeeding interest
 
payment date.
 
 
“Junior Guarantee”
 
means any guarantee, indemnity
 
or other contractual support arrangement
 
entered into by us in respect
 
of securities (regardless of name or
designation) issued by one of our subsidiaries or Undertakings
 
and ranking, upon liquidation or in respect of distributions
 
or payment of dividends or any other
payment thereon, after the ING Perpetual
 
Debt Securities.
 
“Junior Securities”
 
means our Ordinary Shares or any other securities
 
which rank, as regards
 
distributions on a return of assets upon liquidation
 
or in respect of
distributions or payment of dividends or any
 
other payments thereon, after the ING Perpetual
 
Debt Securities.
 
“liabilities”
 
means our non-consolidated gross
 
liabilities as shown by our most recent published audited
 
balance sheet, but adjusted for contingencies
 
and for
subsequent events and to such extent
 
as the directors, the auditors
 
or, as the case
 
may be, the liquidator may determine.
 
“Mandatory Partial Payment”
 
payable on any interest
 
payment date means a payment
 
in respect of each ING Perpetual Debt Security in an amount
 
that results in
payment of a proportion of a full interest
 
payment on the ING Perpetual Debt Security
 
on such interest payment
 
date equal to the proportion
 
of a full dividend on
the relevant Parity Securities
 
and/or payment on the relevant
 
Parity Guarantee paid on
 
the dividend or payment date in respect
 
of the relevant Parity Securities
and/or Parity Guarantee
 
immediately preceding such
 
interest payment
 
date.
 
 
“Market Disruption Event”
 
means:
 
●
 
the occurrence or existence of any
 
suspension of or limitation imposed on trading
 
by reason of movements in price exceeding
 
limits permitted by Euronext
Amsterdam N.V.
 
or on settlement procedures
 
for transactions in the Ordinary Shares
 
on Euronext Amsterdam N.V.
 
if, in any such
 
case, that suspension or
limitation is, in the determination of the
 
Calculation Agent, material in the context
 
of the sale of the Ordinary Shares;
●
 
in our opinion, there has been a substantial
 
deterioration in the price and/or value
 
of the Ordinary Shares; or circumstances
 
are such as to prevent or to
 
a
material extent restrict the
 
issue or delivery of the Ordinary Shares; or
●
 
where, pursuant to the terms
 
of the Indenture, monies are required
 
to be converted from
 
one currency into another currency in respect
 
of any payment,
the occurrence of any event that
 
makes it impracticable to effect
 
such conversion.
“Ordinary Shares”
 
means our ordinary shares or depository receipts
 
issued in respect of such Ordinary Shares, as the
 
context may require.
 
“Outstanding Payment”
 
means:
 
 
2019 ING Group Annual Report on Form 20-F
 
19
 
 
 
●
 
in relation to any interest
 
payment, Deferred Interest
 
Payment or Interest
 
Amount not falling within the definition of interest
 
payment, that such payment
(a) has either become due and payable or
 
would have become due and payable
 
except for the non-satisfaction
 
on the relevant date due to an
 
insolvency
condition or the deferral, postponement
 
or suspension of such payment, due to
 
a Required Deferral Condition,
 
an Elective Deferral Interest
 
Payment,
insufficient Ordinary Shares available
 
to satisfy the Alternative Interest
 
Satisfaction Mechanism, or failure
 
to make a payment more
 
than 14 days after its
due date due to a Market Disruption
 
Event; and (b) in any such case has
 
not been satisfied; and
●
 
in relation to any Accrued Interest
 
Payment, any amount
 
thereof which has not been satisfied whether or not payment
 
has become
 
due.
“Parity Guarantees”
 
means any guarantees, indemnities
 
or other contractual support arrangements
 
we enter into with respect to
 
securities issued by any of our
subsidiaries or Undertakings which effectively
 
from a financial point of view
 
●
 
are similar to the most senior class of our preference
 
shares:
 
o
 
with respect to distributions on a return
 
of assets upon our liquidation; or
o
 
with respect to dividends or distribution of payments
 
or other amounts thereunder; and
●
 
rank
pari passu
with the ING Perpetual Debt Securities with respect to
 
such distributions or payments.
For the avoidance of doubt, included in Parity
 
Guarantee are our guarantees
 
of obligations relating to the 8.439% Noncumulative
 
Guaranteed Trust
 
Preferred
Securities issued by ING Capital Funding Trust
 
III.
 
Parity Securities”
 
means our most senior class of preference
 
shares or any of our other securities which effectively
 
from a financial point of view
 
●
 
are similar to the most senior class of our preference
 
shares:
 
o
 
with respect to distributions on a return
 
of assets upon our liquidation; or
o
 
with respect to dividends or distribution of payments
 
or other amounts thereunder; and
●
 
rank
pari passu
 
with the ING Perpetual Debt Securities with respect to
 
such distributions or payments.
For avoidance of doubt, included in Parity
 
Securities are our 6.50% ING Perpetual Debt Securities issued
 
on September 27, 2001, 7.05% ING Perpetual Debt
Securities issued on July 18, 2002, 7.20% ING Perpetual Debt
 
Securities issued on December 6, 2002, Variable Rate
 
ING Perpetual Securities issued on June 20,
2003, 6.20% ING Perpetual Debt Securities issued on
 
October 17, 2003, Variable Rate
 
ING Perpetual Securities issued on June 14, 2004 and
 
4.176% ING Perpetual
Debt Securities issued on June 7, 2005.
 
“payment”
 
means any interest payment,
 
Deferred Interest
 
Payment, Accrued Interest
 
Payment or Interest
 
Amount not falling within the definition of interest
payment.
 
Payment Event”
 
has the meaning set forth under “Description of the ING Perpetual
 
Debt Securities —
 
 
“Relevant Date”
 
means:
 
●
 
in respect of any payment other than
 
a Winding-Up Claim, the date on which such payment
 
first becomes due and payable but,
 
if the full amount of the
monies payable on such date has
 
not been received by the trustee on or prior to
 
such date, the “Relevant Date”
 
means the date on which such monies
shall have been so received and notice to
 
that effect shall have
 
been given to the holders in accordance
 
with the terms of the Indenture; and
●
 
in respect of a Winding-Up Claim, the date which is one day
 
prior to the commencement of the winding up.
The
“Required Deferral Condition”
 
will be met if, in our determination,
 
on the relevant date, we do
 
not satisfy the solvency conditions, or making of the relevant
payment will result in us not satisfying
 
the solvency conditions.
 
 
“Undertaking”
 
means a corporate body,
 
partnership, limited partnership, cooperative
 
or an incorporated association carrying
 
on a trade or business with or
without a view to profit in which the Issuer has direct
 
or indirect financial, commercial or contractual
 
majority interest.
 
Winding-Up Claim”
 
means amounts in respect of principal or payments
 
in respect of which the solvency conditions are not satisfied
 
on the date upon which the
same would otherwise be due and payable by
 
us in our liquidation (upon dissolution or otherwise) and on any redemption
 
as described under “Description of the
ING Perpetual Debt Securities — Optional Redemption
 
and Redemption upon Certain Events.”
 
 
 
 
 
 
2019 ING Group Annual Report on Form 20-F
 
20
 
 
 
 
AMERICAN DEPOSITARY
 
SHARES
This section will summarize all of the material provisions
 
of the Amended and Restated Deposit
 
Agreement, dated as of October 4, 2018, pursuant
 
to which the
American depositary receipts (which we refer
 
to as ADRs) are to be issued among ING, JPMorgan
 
Chase Bank, N.A., as depositary,
 
and the holders from time to
time of ADRs. We refer to
 
this agreement as the “deposit
 
agreement.” We
 
do not, however,
 
describe every aspect of the deposit agreement, which
 
has been filed
as an exhibit to ING’s
 
registration statement
 
on Form F-6, filed on 4 October 2018. You
 
should read the deposit agreement for
 
a more detailed description of the
terms of the ADRs. Additional copies of the deposit agreement
 
are available for inspection at
 
the principal office of the depositary in New York,
 
which is presently
located at 383 Madison Avenue,
 
Floor 11, New York,
 
New York, 10179.
 
American Depositary Receipts
The depositary will issue ADRs evidencing American depositary
 
shares (which we refer to as
 
ADSs) pursuant to the deposit agreement.
 
Each ADS will represent one
ordinary share. Only persons in whose names
 
ADRs are registered on the books
 
of the depositary will be treated by the depositary
 
and us as holders of ADRs.
 
Unless certificated ADRs are specifically requested
 
by you, all ADSs will be issued on the books of our
 
depositary in book-entry form and
 
periodic statements will be
mailed to you which reflect your ownership
 
interest in such ADSs. In our description,
 
references to American depositary
 
receipts or ADRs shall include the
statements you will receive
 
which reflect your ownership
 
of ADSs.
You may hold
 
ADSs either directly or indirectly through your
 
broker or other financial institution.
 
If you hold ADSs directly,
 
by having an ADS registered in your
name on the books of the depositary,
 
you are an ADR holder.
 
This description assumes you hold your ADSs directly.
 
If you hold the ADSs through your broker
 
or
financial institution nominee, you must rely
 
on the procedures of such broker
 
or financial institution to assert the rights of an ADR holder
 
described in this section.
You should consult
 
with your broker or financial institution
 
to find out what those procedures are.
Pursuant to the terms of the deposit agreement,
 
registered holders of ADRs and
 
all persons holding any interest
 
in ADRs and/or
 
ADSs will be subject to any
applicable disclosure requirements
 
regarding acquisition and ownership
 
of ordinary shares as are applicable pursuant
 
to the terms of our articles of association
 
or
other provisions of or governing the ordinary
 
shares. See “Ordinary Shares — Obligations
 
of shareholders to disclose holdings” above
 
for a description of such
disclosure requirements applicable
 
to ordinary shares and the consequences of noncompliance
 
as of the date of this prospectus. In order
 
to enforce such disclosure
requirements, we reserve the right
 
to instruct ADR holders to deliver their ADSs for
 
cancellation and withdrawal
 
of the deposited securities so as to permit us to
deal directly with the holder thereof as a holder of ordinary
 
shares, and, by being a holder of an ADR, ADR holders are
 
contractually agreeing to comply
 
with such
instructions.
 
The depositary has agreed, subject to the terms and conditions
 
of the deposit agreement, to cooperate
 
with ING in its efforts to inform
 
ADR holders
of any exercise by us
 
of our rights to instruct ADR holders to deliver their
 
ADSs for cancellation, and to consult
 
with and provide us with reasonable assistance
without risk, liability or expense on the part of the depositary,
 
on the manner or manners in which we may enforce
 
such rights
 
with respect to any ADR holder.
The depositary will keep, at its transfer
 
office, (i) a register for the registration,
 
registration of transfer,
 
combination and split-up of ADRs, which at all reasonable
times will be open for inspection by holders
 
of ADRs and us for the purpose of communicating
 
with holders in the interest of our
 
business or a matter relating to
the deposit agreement and (ii) facilities for
 
the delivery and receipt of ADRs.
 
Deposit, Transfer
 
and Withdrawal
The depositary has agreed that upon delivery
 
of our ordinary shares (or rights to receive our
 
ordinary shares from us or any registrar,
 
transfer agent, clearing
agency or other entity recording
 
ordinary share ownership or transactions
 
for us) to their custodian, which is currently
 
ING Bank N.V.,
 
and in accordance with the
procedures set forth in the deposit
 
agreement, the depositary will issue ADRs for delivery
 
at its designated transfer
 
office.
Upon surrender at the office of the depositary
 
of an ADR for the purpose of withdrawal of the deposited
 
securities represented by the ADSs
 
evidenced by such
ADR, and upon payment of the fees, governmental
 
charges and taxes
 
provided in the deposit agreement, and subject to
 
the terms and conditions of the deposit
agreement, the holder of such ADR will be entitled to
 
delivery to such holder or upon such holder’s order,
 
as permitted by applicable law,
 
of the amount of
deposited securities at the time represented
 
by the ADS evidenced by such ADR. The custodian
 
will ordinarily deliver such deposited securities
 
at or from its office.
The forwarding of deposited securities for
 
delivery at any other place specified by the
 
holder will be at the risk and expense
 
of the holder.
 
Dividends, Other Distributions and Rights
To the extent
 
practicable, the depositary will distribute
 
to you, in proportion to the number of ADSs you
 
hold, any U.S. dollars available
 
to the depositary resulting
from a cash dividend or other cash distribution
 
or the net proceeds of sales of any other distribution
 
that it receives in respect of the deposited securities.
 
Such a
distribution will be subject to (i) appropriate
 
adjustments for taxes
 
withheld, (ii) the impermissibility or impracticability
 
of such distribution with respect to certain
holders and (iii) the deduction of the depositary and/or
 
its agents’ fees and expenses in (1) converting
 
any foreign currency
 
to U.S. dollars by sale or in such other
manner as the depositary may determine, to the extent
 
that it determines that such conversion
 
may be made on a reasonable basis, (2) transferring
 
foreign
currency or U.S. dollars to the United
 
States by such means as the depositary
 
may determine, to the extent that
 
it determines that such transfer
 
may be made on a
reasonable basis, (3) obtaining any
 
approval or license of any governmental
 
authority required for such
 
conversion or transfer,
 
which is obtainable at a reasonable
cost and within a reasonable time and (4) making any
 
sale by public or private means in any
 
commercially reasonable manner.
 
To the extent
 
that the depositary
determines in its discretion that any
 
distribution under the terms of the deposit agreement is
 
not practicable with respect to any
 
holder, the depositary
 
may make
such distribution as it so deems practicable, including
 
the distribution of foreign currency,
 
securities or property (or appropriate
 
documents evidencing the right to
receive foreign currency,
 
securities or property) or the retention
 
thereof as deposited securities with respect to such
 
holder’s ADRs (without liability for interest
thereon or the investment thereof). For
 
a description of our dividend policies, see “ Description of Ordinary
 
Shares — Dividends” above.
If any distribution on deposited securities consists
 
of a dividend in, or free distribution of,
 
ordinary shares, the depositary will, to the extent
 
practicable, distribute
to you, in proportion to the number of ADSs you
 
hold, additional ADRs evidencing an aggregate number of
 
ADSs that represents the amount
 
of ordinary shares
received as such dividend or free distribution.
 
In lieu of delivering ADRs for fractional ADSs
 
in the event of any such dividend or free distribution,
 
the depositary
shall sell the number of ordinary shares represented
 
by the aggregate of such fractions and
 
distribute the net proceeds to ho
 
lders entitled thereto.
If we offer or cause to be offered
 
to holders of deposited securities any
 
rights to subscribe for additional shares
 
or rights of any nature, the depositary
 
will to the
extent practicable distribute
 
warrants or other instruments,
 
in its discretion, representing
 
rights to acquire additional ADRs in respect
 
of any rights that have been
made available to the depositary as
 
a result of a distribution on deposited securities, to
 
the extent that we timely furnish to
 
the depositary evidence satisfactory
 
to
the depositary that the depositary may lawfully
 
distribute the same. We have
 
no obligation to furnish such evidence,
 
and to the extent that we do not furnish such
evidence and the sales of rights are practicable,
 
the depositary will distribute any U.S.
 
dollars available to the depositary
 
from the net proceeds of sales of rights, as
in the case of cash, or,
 
to the extent that we do not furnish such
 
evidence and such sales cannot practicably
 
be accomplished by reason of the non-transferability
 
of
the rights, limited markets therefor,
 
their short duration, or otherwise, the depositary
 
will distribute nothing (and any rights
 
may lapse).
 
The depositary will not offer rights to
 
holders having an address in the U.S. unless
 
both the rights and the securities to which such rights relate
 
are either exempt
from registration under
 
the Securities Act with respect to a distribution
 
to all holders or are registered
 
under the provisions of the Securities Act. Notwithstanding
any terms of the deposit agreement to
 
the contrary,
 
we shall have no obligation to
 
prepare and file a registration
 
statement in respect of any
 
such rights.
Whenever the depositary shall receive any
 
distribution other than cash, ordinary shares
 
or rights in respect of the deposited securities, the depositary
 
will to the
extent practicable distribute
 
securities or property available to
 
the depositary resulting from such distribution
 
to the holders entitled thereto by
 
any means that the
depositary may deem equitable and practicable,
 
or, to
 
the extent that the depositary deems distribution
 
of such securities or property to not be equitable and
practicable, any U.S. dollars
 
available to the depositary from the net proceeds
 
of sales of such securities or property,
 
as in the case of cash.
Whenever we intend to distribute
 
a dividend payable at the election of the holders
 
of ordinary shares in cash or in additional shares,
 
we shall give notice thereof to
the depositary at least 30 days prior to
 
the proposed distribution stating
 
whether or not we wish such elective distribution
 
to be made available to ADR holders.
 
Upon receipt of notice indicating that we wish
 
such elective distribution to be made available
 
to ADR holders, the depositary shall consult
 
with us to determine, and
we shall assist the depositary in its determination,
 
whether it is lawful and reasonably practicable
 
to make such elective distribution
 
available to the ADR holders.
 
The depositary shall make such elective distribution
 
available to ADR holders only if (i) we shall
 
have timely requested that
 
the elective distribution is available to
ADR holders, (ii) the depositary shall have
 
determined that such distribution is reasonably
 
practicable and (iii) the depositary shall
 
have received satisfactory
documentation within the terms of the deposit
 
agreement including, without limitation, any
 
legal opinions of counsel in any applicable
 
jurisdiction that the
depositary in its reasonable discretion may
 
request, at our expense.
 
If the above conditions are not satisfied,
 
the depositary shall, to the extent permitted
 
by law,
distribute to the ADR holders, on the basis
 
of the same determination as is made in the local market
 
in respect of the ordinary shares for
 
which no election is made,
either (x) cash or (y) additional ADSs representing such
 
additional ordinary shares.
 
If the above conditions are satisfied, the
 
depositary shall establish a record
 
date
and establish procedures to
 
enable ADR holders to elect the receipt of the proposed
 
dividend in cash or in additional ADSs.
 
We shall assist the depositary
 
in
establishing such procedures
 
to the extent necessary.
 
Nothing herein shall obligate the depositary
 
to make available to
 
ADR holders a method to receive the
elective dividend in ordinary shares (rather
 
than ADSs).
 
There can be no assurance that ADR holders
 
generally,
 
or any holder in particular,
 
will be given the
opportunity to receive elective distributions
 
on the same terms and conditions as the holders of ordinary
 
shares.
If the depositary determines that any
 
distribution of property other than cash (including ordinary
 
shares or rights) on deposited securities is subject
 
to any tax
which the depositary or the custodian is obligated
 
to withhold, the depositary may dispose of all or a portion
 
of such property in such amounts and in such manner
as the depositary deems necessary and practicable
 
to pay such taxes, by
 
public or private sale, and the depositary will distribute
 
the net proceeds of any such sale
or the balance of any such property after
 
deduction of such taxes to
 
the holders entitled thereto.
 
 
 
2019 ING Group Annual Report on Form 20-F
 
21
 
 
 
Changes Affecting Deposited Securities
Pursuant to the terms of the deposit agreement,
 
the depositary may,
 
in its discretion, and will if we so reasonably request,
 
amend the ADRs or distribute additional
or amended ADRs (with or without calling for the exchange
 
of any ADRs) or cash, securities or property
 
on the record date set by the depositary
 
therefor to reflect
any change in par value, split-up, consolidation,
 
cancellation or other reclassification of deposited
 
securities, any share distribution
 
or any distribution other than
cash, ordinary shares or rights, which in each case
 
is not distributed to holders or
 
any cash, securities or property available
 
to the depositary in respect of the
deposited securities from (and the depositary
 
is authorized to surrender any deposited
 
securities to any person and, irrespective
 
of whether such deposited
securities are surrendered or otherwise cancelled by
 
operation of law,
 
rule, regulation or otherwise, to sell by public or private
 
sale any property received in
connection with) any recapitalization,
 
reorganization,
 
merger,
 
consolidation, liquidation, receivership,
 
bankruptcy or sale of all or substantially
 
all of our assets, and
to the extent that the depositary does
 
not so amend the ADRs or make a distribution
 
to holders to reflect any of the foregoin
 
g, or the net proceeds thereof,
whatever cash, securities or property
 
results from any of the foregoing
 
shall constitute deposited securities and
 
each ADS evidenced by an ADR shall automatically
represent its pro rata
 
interest in the deposited securities as then
 
constituted.
 
Promptly upon the occurrence of any of the aforementioned
 
changes affecting
deposited securities, we shall notify the
 
depositary in writing of such occurrence and as soon as practicable
 
after receipt of such notice, may
 
instruct the depositary
to give notice thereof,
 
at our expense, to holders in accordance
 
with the provisions of the deposit agreement. Upon
 
receipt of such instruction, the depositary
 
shall
give notice to the holders in accordance
 
with the terms of the deposit agreement, as soon
 
as reasonably practicable.
Record Dates
The depositary may,
 
after consultation with us if practicable,
 
fix a record date (which, to the extent
 
applicable, shall be as near as practicable
 
to any corresponding
record date set by us)
 
for the determination of the holders
 
who shall be responsible for the fee assessed
 
by the depositary for administration
 
of the ADR program
and for any expenses provided
 
in the deposit agreement as well as for the determination
 
of the holders who shall be entitled to receive
 
any distribution on or in
respect of deposited securities, to give instructions
 
for the exercise of any
 
voting rights, to receive any
 
notice or to act in respect of other matters
 
and only such
holders shall be so entitled or obligated.
Voting of Deposited Securities
Subject to the following sentence, as
 
soon as practicable after receipt of notice
 
of any meetings at which the holders
 
of ordinary shares are entitled to
 
vote, or of
solicitation of consents or proxies
 
from holders of ordinary shares
 
or other deposited securities, the depositary shall fix the ADS record
 
date in accordance with the
deposit agreement in respect of such meeting or solicitation
 
of consent or proxy.
 
The depositary shall, if we request in writing in a timely manner (the
 
depositary
having no obligation to take
 
any further action if the request shall not have
 
been received by the depositary at least
 
thirty (30) days’ prior to the date of such
 
vote
or meeting) and at our expense and provided
 
no legal prohibitions exist, distribute
 
to holders a notice stating:
(i)
 
such information as is contained
 
in such notice and any solicitation materials;
(ii)
 
that each holder on the record date
 
set by the depositary therefor will, subject
 
to any applicable provisions
 
of Dutch law,
 
be entitled to instruct
the depositary as to the exercise
 
of the voting rights, if any,
 
pertaining to the deposited securities represented
 
by the ADSs evidenced by such
holder’s ADRs; and
(iii)
 
the manner in which such instructions may be given,
 
including instructions to give a discretionary proxy
 
to a person designated by us.
Upon actual receipt by the ADR department of the depositary
 
of instructions of a holder on such record
 
date in the manner and on or before
 
the time established
by the depositary for such purpose, the depositary
 
shall endeavor,
 
insofar as practicable and permitted
 
under the provisions of,
 
or governing, deposited securities,
to vote or cause to be voted
 
the deposited securities represented by
 
such holder’s ADRs in accordance with such
 
instructions. The depositary will not itself exercise
any voting discretion in respect
 
of any deposited securities. There is no guarantee
 
that holders generally or any
 
holder in particular will receive the notice described
above with sufficient time to enable such holder
 
to return any voting instructions
 
to the depositary in a timely manner.
 
Notwithstanding anything contained
 
in the deposit agreement or any ADR, the depositary
 
may, to
 
the extent not prohibited by law
 
or regulations, or by the
requirements of the stock exchange
 
on which the ADSs are listed, in lieu of distribution
 
of the materials provided to the depositary
 
in connection with any meeting
of, or solicitation
 
of consents or proxies from, holders
 
of deposited securities, distribute to holders
 
of ADRs a notice that provides such holders
 
with, or otherwise
publicizes to such holders, instructions
 
on how to retrieve such materials or receive
 
such materials upon request
 
(
i.e
., by reference to a website
 
containing the
materials for retrieval
 
or a contact for requesting
 
copies of the materials).
 
ADR holders are strongly encouraged
 
to forward their voting instructions
 
as soon as possible.
 
Voting instructions will not be
 
deemed received until such time as
the ADR department responsible for proxies
 
and voting has received such instructions
 
notwithstanding that such instructions may
 
have been physically received
 
by
the depositary prior to such time.
 
Reports and Other Communications
 
We have delivered to
 
the depositary,
 
the custodian and any transfer
 
office a copy of all provisions of or governing
 
the ordinary shares and any other deposited
securities issued by us or any of our affiliates
 
and, promptly upon any change
 
thereto, we will deliver to the depositary,
 
the
 
custodian and any transfer
 
office, a
copy (in English or with an English translation)
 
of such provisions as so changed.
Amendment and Termination
 
of the Deposit Agreement
Subject to the provisions of the deposit agreement,
 
the ADRs and the deposit agreement may
 
at any time be amended by us and the depositary
 
without your
consent;
provided
 
that any amendment that imposes or increases
 
any fees or charges (other than
 
stock transfer or other taxes
 
and other governmental charges,
transfer or registration
 
fees, SWIFT,
 
cable, telex or facsimile transmission
 
costs, delivery costs or other such expenses),
 
or which otherwise prejudices any
substantial existing right
 
of yours, will take effect
 
30 days after notice of any such
 
amendment has been given to ADR holders. Every
 
holder of an ADR at the time
any amendment to the deposit agreement
 
so becomes effective will be deemed
 
by continuing to hold such ADRs to
 
consent and agree to such amendment and to
be bound by the deposit agreement as amended thereby.
 
In no event may any
 
amendment impair the right of any holder of ADRs to surrender
 
such ADRs and
receive the deposited securities represented
 
thereby,
 
except in order to
 
comply with mandatory provisions of applicable law.
 
Any amendments or supplements which (i) are reasonably
 
necessary (as agreed by us and the depositary) in order
 
for (a) the ADSs to be registered under
 
the
Securities Act or (b) the ADSs or our ordinary shares to be traded
 
solely in electronic book-entry form and (ii) do not
 
in either such case impose or increase any fees
or charges to be borne by holders of ADRs,
 
shall be deemed not to prejudice any substantial
 
rights of such holders. Notwithstanding
 
the foregoing, if any
governmental body or regulatory
 
body should adopt new laws, rules or regulations
 
which would require amendment or supplement
 
of the deposit agreement or
the form of ADR to ensure compliance therewith,
 
we and the depositary may amend or supplement
 
the deposit agreement and the form of ADR
 
at any time in
accordance with such changed laws, rules
 
or regulations. Such amendment or supplement to
 
the deposit agreement in such circumstances
 
may become effective
before a notice of such amendment or supplement
 
is given to holders of ADRs or within any
 
other period of time as required for
 
compliance. Notice of any
amendment to the deposit agreement or form of
 
ADR shall not need to describe in detail the specific amendments
 
effectuated thereby,
 
and failure to describe the
specific amendments in any such notice shall not render
 
such notice invalid,
provided, however,
 
that, in each such case, the notice given to the holders
 
identifies a
means for holders to retrieve
 
or receive the text of such amendment (
i.e
., upon retrieval from the SEC’s,
 
the depositary’s or our website
 
or upon request from the
depositary).
 
The depositary may,
 
and shall at our written direction, terminate
 
the deposit agreement and the ADRs by mailing notice of such
 
termination to the ADR holders at
least 30 days prior to the date
 
fixed in such notice for such termination; provided,
 
however,
 
if the depositary shall have (i) resigned as depositary,
 
notice of such
termination by the depositary shall not be provided
 
to ADR holders unless a successor depositary shall
 
not be operating under the deposit agreement
 
within 60
days of the date of such resignation,
 
or (ii) been removed as depositary,
 
notice of such termination by the depositary shall not
 
be provided to ADR holders unless
 
a
successor depositary shall not be operating
 
under the deposit agreement on the 60
th
 
day after our notice of removal
 
was first provided
 
to the depositary. After the
date so fixed for termination,
 
the depositary and its agents will perform no further
 
acts under the deposit agreement and the ADRs,
 
except to receive and hold
 
(or
sell) distributions on deposited securities and deliver
 
deposited securities being withdrawn.
 
As soon as practicable after the expiration
 
of 6 months from the date
so fixed for termination,
 
the depositary shall sell the deposited securities and shall thereafter
 
(as long as it may lawfully do so) hold in a segregated
 
or unsegregated
account the net proceeds of such sales,
 
together with any other cash then held by
 
it under the deposit agreement, without liability for interest,
 
in trust for the pro
rata benefit of the holders of
 
ADRs not theretofore surrendered.
 
After making such sale, the depositary shall be discharged
 
from all obligations in respect
 
of the
deposit agreement and the ADRs, except
 
to account for such net proceeds
 
and other cash.
 
After the date so fixed for terminat
 
ion, we shall be discharged from all
obligations under the deposit agreement
 
except for our obligations
 
to the depositary and its agents.
In the event that the depositary resigns,
 
is removed or is otherwise substituted, and
 
a successor thereto is appointed, the s
 
uccessor depositary will promptly mail
you notice of such appointment.
Liability of Holder for Taxes
If any tax or other governmental
 
charges (including any penalties and/or
 
interest) become payable
 
by the custodian or the depositary with respect
 
to any ADR, any
deposited securities represented
 
by the ADSs evidenced thereby or any distribution
 
thereon, such tax or other governmental
 
charge will be paid by the holder
thereof to the depositary and by holding or
 
having held an ADR the holder and all prior holders, jointly
 
and severally,
 
agree to indemnify,
 
defend and hold harmless
each of the depositary and its agents in respect thereof.
 
The depositary may refuse to
 
effect any registration,
 
registration of transfer
 
or any split-up or combination
 
2019 ING Group Annual Report on Form 20-F
 
22
 
 
 
of such ADR or any withdrawal of deposited
 
securities underlying such ADR until such payment is
 
made. The depositary may also deduct from
 
any dividends or
other distributions or may sell by public or
 
private sale for your account
 
any part or all of the deposited securities underlying
 
such ADR and may apply such
dividends, distributions or the proceeds of any
 
such sale to pay any such tax
 
or other governmental charges, and
 
the holder of such ADR shall remain liable for any
deficiency, and
 
the depositary shall reduce the number of ADSs evidenced thereby
 
to reflect any such sales of shares.
 
In connection with any distribution to
holders, we will remit to the appropriate
 
governmental authority or agency all
 
amounts (if any) required to be withheld
 
and owing to such authority or agency by
us; and the depositary and the custodian will remit to
 
the appropriate governmental
 
authority or agency all amounts (if any) required
 
to be withheld and owing to
such authority or agency by the depositary or the custodian.
 
If the depositary determines that any
 
distribution in property other than cash (including
 
shares or
rights) on deposited securities is subject to any
 
tax that the depositary or the custodian
 
is obligated to withhold, the depositary
 
may dispose of all or a portion of
such property in such
 
amounts and in such manner as the depositary deems necessary and practicable
 
to pay such taxes,
 
by public or private sale, and the
depositary shall distribute the net proceeds
 
of any such sale or the balance of any such property
 
after deduction of such taxes
 
to the holders entitled thereto. Each
holder of an ADR or an interest therein
 
agrees to indemnify the depositary,
 
us, the custodian and any of their respective officers,
 
directors, employees, agents
 
and
affiliates against, and
 
hold each of them harmless from, any claims by any
 
governmental authority with respect
 
to taxes, additions to tax,
 
penalties or interest
arising out of any refund of taxes,
 
reduced rate of withholding at
 
source or other tax benefit obtained, which
 
obligations shall survive any
 
transfer or surrender of
ADSs or the termination of the deposit agreement.
Transfer
 
of American Depositary Receipts
The ADRs are transferable
 
on the books of the depositary,
provided
 
that the depositary may close the transfer
 
books or any portion thereof at any
 
time or from
time to time when deemed expedient by it, and
 
may also close the issuance book portion of the transfer
 
books when reasonably requested
 
by us solely in order to
enable us to comply with applicable law.
 
As a condition precedent to the issue,
 
registration, registration
 
of transfer,
 
split-up or combination of any
 
ADR, the
delivery of any distribution thereon, or withdrawal
 
of any deposited securities, the depositary,
 
we or the custodian may require
 
(i) payment of a sum sufficient to
reimburse it for any tax
 
or other governmental charge and
 
any stock transfer
 
or registration fee with respect
 
thereto (including any
 
such tax or charge and fee with
respect to ordinary shares being deposited
 
or withdrawn) and payment of any
 
applicable fees payable by the holders
 
of ADRs under the deposit agreement,
 
(ii)
proof of the identity of any signatory
 
and genuineness of any signature,
 
(iii) information as to citizenship
 
or residence, exchange control
 
approval, beneficial
ownership of any securities, compliance with
 
applicable law,
 
regulations, provisions of or governing
 
the deposited securities and terms of the deposit agreement
and the ADR or other information as it may
 
deem necessary or proper,
 
and (iv) compliance with such regulations as the depositary
 
may establish consistent
 
with
the deposit agreement. The issuance, transfer,
 
combination or split-up of ADRs or the withdrawal
 
of deposited securities may be suspended, generally
 
or in
particular instances, during any period when the
 
transfer books of the depositary
 
or the books of ING or its agent for the registration
 
and transfer of ordinary
shares are closed or if any such action is
 
deemed advisable by the depositary.
Limitations on Liability
Neither the depositary nor we nor any of our respective
 
directors, officers, employees,
 
agents or affiliates will be liable to
 
you if by reason of any provision
 
of any
present or future law,
 
rule, regulation, fiat, order or decree
 
of the United States, The Netherlands
 
or any other country or jurisdiction, or of any
 
other governmental
or regulatory authority or securities exchange
 
or market or automated
 
quotation system,
 
or by reason of any provision of or governing
 
any deposited securities or
any provision of our charter,
 
or by reason of any act of God, war,
 
terrorism, nationalization,
 
expropriation, currency restrictions,
 
work stoppage, strike, civil unrest,
revolutions, rebellions, explosions,
 
computer failure or circumstance
 
beyond any such party’s
 
direct and immediate control, the depositary,
 
we or any of our
respective directors, employees,
 
agents or affiliates shall be prevented
 
or delayed in performing, or shall be subject
 
to any civil or criminal penalty in connection
with, any act which by the terms of the deposit agreement
 
or the ADRs it is provided shall be done or performed by
 
it or them (including, without limitation, voting
pursuant to the terms of the ADRs); nor will the depositary,
 
we or any of our respective directors,
 
employees, agents or affiliates
 
incur any liability to you by reason
of any exercise of,
 
or failure to exercise,
 
any discretion provided
 
for under the deposit agreement or any
 
ADR (including, without limitation, any
 
failure to
determine that any distribution or
 
action may be lawful or reasonably practicable),
 
or for any action or inaction by it in reliance upon
 
the advice of or information
from legal counsel, accountants,
 
any person presenting ordinary
 
shares for deposit, any ADR holder,
 
or any other person believed by
 
it to be competent to give
such advice or information.
Neither we nor the depositary nor any of our respective
 
directors, officers, employees,
 
agents or affiliates assume any
 
obligation or be subject to any
 
liability
except to perform its obligations
 
to the extent they are specifically provided
 
under the deposit agreement or the ADRs without gross
 
negligence or willful
misconduct. We, the depositary
 
and its agents and may rely and shall be protected
 
in acting upon any written notice, request,
 
direction, instruction or document
believed to be genuine and to have
 
been signed, presented or given by the
 
proper party or parties.
 
The depositary and its agents have no
 
obligation to appear in, prosecute
 
or defend any action, suit or other proceeding
 
in respect of any deposited securities or the
ADRs, and we and our agents have no
 
obligation to appear in, prosecute
 
or defend any action, suit or other proceeding
 
in respect of any deposited securities or the
ADRs, which in our opinion may involve
 
us in expense or liability,
 
unless indemnity satisfactory to us
 
against all expense (including fees and
 
disbursements of
counsel) and liability is furnished as often as may be required.
The depositary shall not be liable for the acts or omissions made by,
 
or the insolvency of, any
 
securities depository,
 
clearing agency or settlement system,
 
and shall
not have any liability for the
 
price received in connection with any sale of securities,
 
the timing thereof or any delay in action
 
or omission to act, nor shall it be
responsible for any error
 
or delay in action, omission to act, default
 
or negligence on the part of the party so retained in connection
 
with any such sale or proposed
sale.
 
The depositary shall be under no obligation to
 
inform registered holders
 
of ADRs or any other holders of an interest
 
in any ADSs about the requirements of
the laws, rules or regulations or any
 
changes therein or thereto of any country
 
or jurisdiction or of any governmental
 
or regulatory authority or any
 
securities
exchange or market
 
or automated quotation system.
 
The depositary and its agents will not be responsible
 
for any failure to carry out
 
any instructions to vote any
 
of
the Deposited Securities, for the manner in which any
 
such vote is cast or for the effect
 
of any such vote. The depositary
 
may rely upon instructions from us
 
or our
counsel in respect of any approval
 
or license required for any currency
 
conversion, transfer
 
or distribution. The depositary and its agents
 
may own and deal in any
class of our securities and securities or our affiliates
 
and in ADRs. Notwithstanding anything to
 
the contrary set forth in the deposit
 
agreement or an ADR, the
depositary and its agents may fully respond
 
to any and all demands or requests for
 
information maintained by or
 
on its behalf in connection with the deposit
agreement, any ADR holder or holders,
 
any ADR or ADRs or otherwise related thereto
 
to the extent such information
 
is requested or required
 
by or pursuant to any
lawful authority,
 
including without limitation laws, rules, regulations,
 
administrative or judicial process,
 
banking, securities or other regulators.
 
None of us, the depositary or the custodian shall be liable for
 
the failure by any registered
 
holder or beneficial owner of ADRs to obtain the benefits
 
of credits or
refunds of non-U.S. tax paid against
 
such holder's or beneficial owner's income tax liability.
 
Neither we nor the depositary shall incur any liability
 
for any tax or tax
consequences that may be incurred by
 
registered holders or beneficial owners
 
of ADRs on account of their ownership
 
or disposition
 
of the ADRs or ADSs.
 
The depositary shall not incur any liability for
 
the content of any information
 
submitted to it by or on our behalf for distribution
 
to the ADR holders or for any
inaccuracy of any translation
 
thereof, for any
 
investment risk associated
 
with acquiring an interest in the deposited
 
securities, for the validity or worth of the
deposited securities, for the credit-worthiness
 
of any third party,
 
for allowing any rights to lapse upon
 
the terms of the deposit agreement or for the failure
 
or
timeliness of any notice from us.
 
The depositary shall not be liable for any acts or omissions
 
made by a successor depositary whether in connection with a
 
previous
act or omission of the depositary or in connection with any
 
matter arising wholly after the removal
 
or resignation of the depositary,
 
unless a liability is directly
caused by the previous gross negligence
 
or willful misconduct of the depositary or its directors,
 
officers, employees, agents
 
or affiliates acting in their capacities as
such under the deposit agreement.
 
Neither we nor the depositary nor any of our respective
 
agents shall be liable to registered
 
holders of ADRs or beneficial owners of interests
 
in ADSs for any
indirect, special, punitive or consequential
 
damages (including, without limitation, legal fees
 
and expenses) or lost profits, in each
 
case of any form incurred by any
person or entity,
 
whether or not foreseeable and regardless
 
of the type of action in which such a claim may be brought.
 
The depositary shall not be responsible for,
 
and shall incur no liability in connection with or arising from any
 
act or omission to act on the part of the custodian
except to the extent that
 
(i) such custodian was not us or one of our affiliates
 
when such act or omission occurred and (ii) a holder has
 
incurred liability directly as a
result of the custodian having (a) committed
 
fraud or willful misconduct in the provision
 
of custodial services to the depositary or (b) failed
 
to use reasonable care
in the provision of custodial services to the depositary
 
as determined in accordance with the standards
 
prevailing in the jurisdiction in which the custodian
 
is
located. As long as we or one of our affiliates
 
is serving as the custodian with respect to the deposit
 
agreement we shall be solely liable for each
 
and any act or
failure to act on the part of the custodian.
No disclaimer of liability under the Securities Act of 1933 or the Securities Exchange
 
Act of 1934, to the extent applicable,
 
is intended by any provision of the
Deposit Agreement.
Governing Law,
 
Submission to Jurisdiction and Waiver
 
of Right to Trial by Jury
The deposit agreement is governed by and
 
construed in accordance with the laws of the
 
State of New York.
We have irrevocably
 
agreed that any legal suit, action
 
or proceeding against us brought
 
by the depositary or any holder,
 
arising out of or based upon the deposit
agreement or the transactions contemplated
 
thereby,
 
may be instituted in any state
 
or federal court in New York,
 
New York, an
 
d
 
irrevocably waive any
 
objection
which we may now or hereafter have
 
to the laying of venue of any such
 
proceeding, and irrevocably submit to
 
the non-exclusive jurisdiction of such
 
courts in any
such suit, action or proceeding. We have
 
also irrevocably agreed that any
 
legal suit, action or proceeding against
 
the depositary brought by us, arising out of or
based upon the deposit agreement or the transactions
 
contemplated thereby,
 
may only be instituted in a state
 
or federal court in New York,
 
New York.
Each holder or beneficial owner of ADSs and each holder of
 
interests therein, has irrevocably
 
agreed that any legal suit, action
 
or proceeding against or involving
 
us
or the depositary,
 
arising out of or based on the deposit agreement, the ADSs, or the transactions
 
contemplated thereby,
 
may only be instituted in a state
 
or
 
2019 ING Group Annual Report on Form 20-F
 
23
 
 
 
federal court in New York,
 
New York, and
 
each such party has irrevocably waived
 
any objection which it may now or hereafter
 
have to the laying of venue
 
of any
such proceeding, and irrevocably submits
 
to the exclusive jurisdiction of such
 
courts in any such suit, action or proceeding.
 
Each party to the deposit agreement, including
 
each holder and beneficial owner and/or holder
 
of interests in ADRs, irrevocably
 
waives, to the fullest extent
permitted by applicable law,
 
any right it may have
 
to a trial by jury in any suit, action or proceeding against
 
the depositary and/or us directly or indirectly
 
arising out
of or relating to the ordinary shares or
 
other deposited securities, the ADSs or the ADRs, the deposit agreement
 
or any transaction contemplated
 
therein, or the
breach thereof, whether
 
based on contract, tort, common law
 
or any other theory.
 
Appointment
 
In the deposit agreement, each registered
 
holder of ADRs and each person holding an interest
 
in ADSs, upon acceptance of any ADSs (or any
 
interest therein)
issued in accordance with the terms and conditions
 
of the deposit agreement shall be deemed for all purposes
 
to:
 
 
(a) be a party to and bound by the terms of the deposit agreement
 
and the applicable ADR(s), and
 
 
(b) appoint the depositary its attorney
 
-in-fact, with full power to delegate,
 
to act on its behalf and to take
 
any and all actions contemplated in
 
the deposit
agreement and the applicable ADR(s), to adopt
 
any and all procedures necessary to comply
 
with applicable law and to take
 
such action as the depositary in its sole
discretion may deem necessary or appropriate
 
to carry out the purposes of the deposit agreement and the applicable
 
ADR(s), the taking of such actions to be the
conclusive determinant of the necessity
 
and appropriateness thereof.