Filed Pursuant to Rule 424(b)(5)
Registration No. 333-84226
PROSPECTUS SUPPLEMENT
(To prospectus dated July 1, 2002)
$500,000,000
[ING LOGO]
ING GROEP N.V.
6.20% ING PERPETUAL DEBT SECURITIES
------------------------
We are issuing $500,000,000 aggregate principal amount of 6.20% ING
Perpetual Debt Securities, which will be issued pursuant to a subordinated
indenture between us and The Bank of New York, as trustee.
The ING Perpetual Debt Securities will bear interest at a rate of 6.20% per
annum on their outstanding principal amount, payable in U.S. dollars quarterly
in arrears on January 15, April 15, July 15 and October 15, commencing on
January 15, 2004. We refer to these dates as interest payment dates. You will
receive interest payments on your ING Perpetual Debt Securities only in cash. As
more fully described in this prospectus supplement, except in limited
circumstances, we may defer interest payments for any period of time; provided,
however, that such deferred payments will become immediately due and payable if
we make any payment on, or repurchase or redeem, our Junior Securities or Parity
Securities (each as defined herein). Although you will always receive cash in
satisfaction of any payments, we may, in certain circumstances, elect and, in
the case of deferred payments, be required to satisfy our obligation to make
such payments in cash by issuing our Ordinary Shares, which, when sold, will
provide a sufficient amount of cash necessary to make all such payments. We
refer to this as the Alternative Interest Satisfaction Mechanism. When we refer
to Ordinary Shares, we mean our ordinary shares, or bearer receipts in respect
thereof.
ING Perpetual Debt Securities are perpetual securities that have no fixed
maturity or redemption date. However, at our option, we may redeem the ING
Perpetual Debt Securities in whole (but not in part) at their aggregate
principal amount of $500,000,000, together with any Outstanding Payments (as
defined herein), on January 15, 2009 or any interest payment date thereafter,
and upon the occurrence of certain tax and regulatory events described in this
prospectus supplement under "Description of the ING Perpetual Debt Securities."
We have applied to list the ING Perpetual Debt Securities on the New York
Stock Exchange under the symbol "ISP." Trading of the ING Perpetual Debt
Securities is expected to begin within 30 days after the initial delivery of the
ING Perpetual Debt Securities.
FOR A DISCUSSION OF THE RISKS THAT YOU SHOULD CONSIDER BEFORE PURCHASING THE
ING PERPETUAL DEBT SECURITIES, SEE "RISK FACTORS" BEGINNING ON PAGE S-8 OF THIS
PROSPECTUS SUPPLEMENT.
------------------------
PRICE TO UNDERWRITING PROCEEDS TO ING
PUBLIC(1) DISCOUNT(2) GROEP N.V.(3)
--------- ------------ ---------------
Per ING Perpetual Debt Security............................. 100% 3.15% 96.85%
Total....................................................... $500,000,000 $15,750,000 $484,250,000
---------------
(1) Plus accrued interest, if any.
(2) In the event that the Underwriters make sales of $1,000,000 or more
aggregate principal amount of ING Perpetual Debt Securities to a single
purchaser, we will pay Underwriters compensation of 2.00% per ING Perpetual
Debt Security for such sales. In such case, the proceeds to ING Groep N.V.
will be higher than those stated in the table above.
(3) Before deducting expenses.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined that
this prospectus supplement and the accompanying prospectus are truthful or
complete. Any representation to the contrary is a criminal offense.
The Underwriters will deliver the ING Perpetual Debt Securities in
book-entry form only through the facilities of The Depository Trust Company on
or about October 28, 2003. Beneficial interests in the ING Perpetual Debt
Securities will be shown on, and transfers thereof will be effected only
through, records maintained by The Depository Trust Company and its
participants, including Clearstream Banking, societe anonyme, Luxembourg and
Euroclear Bank S.A./N.V.
------------------------
ING FINANCIAL MARKETS MORGAN STANLEY
------------------------
CITIGROUP
MERRILL LYNCH & CO.
UBS INVESTMENT BANK
WACHOVIA SECURITIES
------------------------
GOLDMAN, SACHS & CO. HSBC
------------------------
The date of this prospectus supplement is October 17, 2003.
TABLE OF CONTENTS
PROSPECTUS SUPPLEMENT
PAGE
----
Summary of the Offering..................................... S-1
Ratio of Earnings to Fixed Charges.......................... S-7
Risk Factors................................................ S-8
Where You Can Find More Information......................... S-10
Incorporation of Information We File with the SEC........... S-11
Capitalization and Indebtedness............................. S-12
Use of Proceeds............................................. S-12
ING Groep N.V. ............................................. S-13
Description of the ING Perpetual Debt Securities............ S-14
United States Taxation...................................... S-30
The Netherlands Taxation.................................... S-35
Underwriting................................................ S-38
Validity of the Securities.................................. S-40
Experts..................................................... S-41
PROSPECTUS
Prospectus Summary.......................................... 1
Ratio of Earnings to Fixed Charges.......................... 2
Risk Factors................................................ 3
Where You Can Find More Information......................... 5
Forward-Looking Statements.................................. 7
About This Prospectus....................................... 7
ING Groep N.V. ............................................. 8
Capitalization and Indebtedness............................. 10
Use of Proceeds............................................. 10
Description of Debt Securities We May Offer................. 11
Description of Ordinary Shares.............................. 36
Description of the Stichting Trust and the Bearer
Receipts.................................................. 39
Description of American Depositary Shares We May Offer...... 41
Legal Ownership and Book-Entry Issuance..................... 47
Taxation.................................................... 54
ERISA Considerations........................................ 75
Plan of Distribution........................................ 76
Validity of the Securities.................................. 77
Experts..................................................... 78
Expenses.................................................... 78
Notices..................................................... 78
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS SUPPLEMENT AND THE ACCOMPANYING PROSPECTUS. WE HAVE
NOT, AND THE UNDERWRITERS HAVE NOT, AUTHORIZED ANY OTHER PERSON TO PROVIDE YOU
WITH DIFFERENT INFORMATION. IF ANYONE PROVIDES YOU WITH DIFFERENT OR
INCONSISTENT INFORMATION, YOU SHOULD NOT RELY ON IT. WE ARE NOT, AND THE
UNDERWRITERS ARE NOT, MAKING AN OFFER TO SELL THESE SECURITIES IN ANY
JURISDICTION WHERE THE OFFER OR SALE IS NOT PERMITTED. YOU SHOULD ASSUME THAT
THE INFORMATION APPEARING IN THIS PROSPECTUS SUPPLEMENT AND THE ACCOMPANYING
PROSPECTUS, AS WELL AS INFORMATION WE PREVIOUSLY FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION, WHICH WE SOMETIMES REFER TO AS THE SEC, AND INCORPORATED BY
REFERENCE, IS ACCURATE AS OF THE DATE ON THE FRONT COVER OF THIS PROSPECTUS
SUPPLEMENT ONLY. OUR BUSINESS, FINANCIAL CONDITION, RESULTS OF OPERATIONS AND
PROSPECTS MAY HAVE CHANGED SINCE THAT DATE.
i
"We" and "us" refer to ING Groep N.V., the term "Group" or "ING" means ING
Groep N.V. and its consolidated subsidiaries.
This prospectus supplement does not constitute an offer to sell, or a
solicitation of an offer to buy, any of the securities offered hereby by any
person in any jurisdiction in which it is unlawful for such person to make such
an offering or solicitation. The offer or sale of the ING Perpetual Debt
Securities may be restricted by law in certain jurisdictions, and you should
inform yourself about, and observe, any such restrictions.
ii
SUMMARY OF THE OFFERING
The following summary highlights information contained elsewhere in this
prospectus supplement and the accompanying prospectus. This summary is not
complete and does not contain all the information that may be important to you.
You should read the entire accompanying prospectus and prospectus supplement,
including the financial statements and related notes incorporated by reference
herein, before making an investment decision. Terms which are defined in
"Description of the ING Perpetual Debt Securities" or in the accompanying
prospectus have the same meaning when used herein.
Issuer........................ ING Groep N.V., Amstelveenseweg 500, 1081 KL
Amsterdam, P.O. Box 810, 1000 AV Amsterdam, The
Netherlands,
telephone: 011-31-20-541-54-11.
Trustee....................... The Bank of New York, 101 Barclay Street, New
York, New York 10286.
Calculation Agent............. ING Financial Markets LLC.
Securities Offered............ 6.20% ING Perpetual Debt Securities, in an
aggregate principal amount of $500,000,000.
The ING Perpetual Debt Securities will be
issued under our subordinated indenture, as
supplemented by a third supplemental indenture,
between us and The Bank of New York, as
trustee, and will constitute a series of our
subordinated debt securities as described in
this prospectus supplement and the accompanying
prospectus.
Interest...................... The ING Perpetual Debt Securities will bear
interest at a rate of 6.20% per annum, payable
quarterly in arrears in equal payments for any
full Interest Period.
Interest Payment Dates........ Subject as described below, interest payments
on the ING Perpetual Debt Securities will be
payable quarterly on January 15, April 15, July
15 and October 15 of each year, commencing on
January 15, 2004. We refer to these dates as
interest payment dates.
Regular Record Dates.......... The regular record dates for each interest
payment date will be January 1, April 1, July 1
and October 1, respectively.
Redemption.................... The ING Perpetual Debt Securities are perpetual
securities and have no fixed maturity date or
redemption date. The ING Perpetual Debt
Securities are redeemable at our option, in
whole, but not in part, at their aggregate
principal amount, together with any outstanding
payments, on January 15, 2009, which we refer
to as the First Call Date, or any interest
payment date thereafter. The ING Perpetual Debt
Securities are also subject to redemption upon
the occurrence of a Tax Event or a Regulatory
Event, each as described in this prospectus
supplement under "Description of the ING
Perpetual Debt Securities -- Optional
Redemption and Redemption upon Certain Events."
Subordination................. The ING Perpetual Debt Securities are our
direct, unsecured and subordinated securities.
The rights and claims of the holders of the ING
Perpetual Debt Securities are subordinated to
the claims of holders of our Senior Debt. Our
Senior Debt means:
- all claims of our unsubordinated creditors;
S-1
- all claims of creditors whose claims are, or
are expressed to be, subordinated only to the
claims of our unsubordinated creditors
(whether only in the event of our bankruptcy
or otherwise); 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 the ING
Perpetual Debt Securities.
Upon our liquidation (upon dissolution or
otherwise), you will be treated effectively
from a financial point of view as if you were a
holder of our most senior class or classes of
preference shares. As a result, your claims
would effectively from a financial point of
view rank pari passu with such preference
shares and any other Parity Securities or
Parity Guarantees, and junior to our Senior
Debt. When we refer to Parity Securities, we
mean 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:
- with respect to distributions on a return
of assets upon our liquidation; or
- 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.
When we refer to Parity Guarantees, we mean 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:
- with respect to distributions on a return
of assets upon our liquidation; or
- 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.
Optional Deferral of
Payments...................... Subject to the payment restriction described
below, we may elect to defer any payment (other
than principal) on the ING Perpetual Debt
Securities for any period of time. However, if
we make this election, the deferred payment
will bear interest at a rate of 6.20%.
Required Deferral of
Payments...................... We will not make interest payments on the ING
Perpetual Debt Securities if, following payment
of the interest, we would not be solvent.
Payments that are not made will be treated as
deferred interest. Interest will not accrue on
interest payments we are required to defer.
Dividend Stopper.............. As long as there is deferred interest
outstanding and any payment is so deferred, we
may not recommend to our shareholders and, to
the fullest extent permitted by law, we will
S-2
otherwise act to prevent, any action that would
constitute a Mandatory Payment Event or
Mandatory Partial Payment Event, each as
described in this prospectus supplement under
"Description of the ING Perpetual Debt
Securities -- Dividend Stopper; Mandatory
Interest Payment."
Mandatory Payment Events;
Mandatory Partial Payment
Events...................... Notwithstanding the payment restrictions
described above, if a Mandatory Payment Event
or a Mandatory Partial Payment Event occurs,
interest and deferred interest will be
mandatorily due and payable, including any
additional amounts due, as described herein
under the heading "Description of the ING
Perpetual Debt Securities -- Dividend Stopper;
Mandatory Interest Payment." We refer to these
payments as Mandatory Interest Payments.
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, any Parity Securities or any
securities issued by any of our subsidiaries
or Undertakings benefitting from a Junior
Guarantee or Parity Guarantee, other than:
- by conversion into or in exchange for our
Ordinary Shares;
- in connection with transactions effected by
or for the account of our customers or
customers of any of our subsidiaries or in
connection with distribution, trading or
market-making activities in respect of
those securities;
- in connection with our satisfaction of our,
or the satisfaction by any of our
subsidiaries of its, obligations under any
employee benefit plans or similar
arrangements with or for the benefit of
employees, officers, directors or
consultants;
- 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
- the purchase of the 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
S-3
- 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.
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.
Alternative Interest
Satisfaction Mechanism........ If we have deferred an interest payment, we
must, or if we so elect at any time we may,
satisfy our obligation to make any payment to
you on the ING Perpetual Debt Securities by
issuing Ordinary Shares in such amount that,
when the Ordinary Shares are sold, will provide
enough cash for us to make full payments to you
on the ING Perpetual Debt Securities in respect
of the relevant payment. The Calculation Agent
will calculate in advance the number of our
Ordinary Shares that we must issue to raise the
full amount of money due to you on the relevant
payment date. You will receive payments on the
ING Perpetual Debt Securities only in cash,
never in Ordinary Shares.
Sufficiency and Availability
of Ordinary Shares............ We are required to keep available for issue
enough Ordinary Shares as we reasonably
consider would be required for issuance in
order to satisfy the next four interest
payments using the Alternative Interest
Satisfaction Mechanism.
Market Disruption Event....... If, in our opinion, a Market Disruption Event
exists on or after the 15th business day
preceding any date upon which we are due to
satisfy a payment using the Alternative
Interest Satisfaction Mechanism, we may delay
making payment to you until the Market
Disruption Event no longer exists. Any such
deferred payment shall bear interest at the
Interest Rate if the Market Disruption Event
continues for 14 days or more beyond the
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
S-4
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, moneys 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.
Additional Amounts............ We will pay additional amounts to you to gross
up interest payments upon the imposition of
Dutch withholding tax, subject to customary
exceptions.
Early Redemption for Tax
Event......................... Upon the occurrence of certain changes in the
treatment of the ING Perpetual Debt Securities
for taxation purposes (e.g., loss of
deductibility to us or payments becoming
subject to withholding tax), we may redeem the
ING Perpetual Debt Securities in whole, but not
in part, on the next interest payment date,
including before or after the First Call Date,
at their aggregate principal amount, together
with any Outstanding Payments.
Early Redemption for
Regulatory Event.............. If we become subject to capital adequacy
regulations and if the relevant regulator has
determined 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 the purposes of such capital adequacy
regulations, then we may redeem the ING
Perpetual Debt Securities at any time,
including prior to the First Call Date, in
whole, but not in part, at their aggregate
principal amount together with any Outstanding
Payments.
Book-entry System; Delivery
and Form.................... We will issue 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 only 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 The Depository Trust
Company, which we refer to as DTC.
The ING Perpetual Debt Securities will be
accepted for clearance by DTC, Euroclear, and
Clearstream, Luxembourg. The initial
distribution of the ING Perpetual Debt
Securities will be cleared through DTC only.
Beneficial interests in the global ING
Perpetual Debt Securities will be shown on, and
transfers thereof will be effected only
through, the book-entry records maintained by
DTC and its direct and indirect participants,
including Euroclear and Clearstream. Owners of
beneficial interests in the ING Perpetual Debt
Securities will receive all payments relating
to their ING Perpetual Debt Securities in U.S.
dollars.
The ING Perpetual Debt Securities will not be
issued in definitive form, except under certain
limited circumstances described herein. See
"Description of the ING Perpetual Debt
Securities -- Book-entry System; Delivery and
Form."
S-5
Remedy for Non-payment........ 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
"Description of the ING Perpetual Debt
Securities -- Defaults; Limitation of
Remedies -- Payment Defaults," such failure
does not constitute a Payment Default, but
instead constitutes a Payment Event. Upon 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, as a holder of
the ING Perpetual Debt Securities, you 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
your consent.
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, if we fail to
make any Mandatory Interest Payment as a result
of:
- failure to satisfy the solvency conditions;
or
- 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.
Listing; Trading.............. The ING Perpetual Debt Securities constitute a
series of our debt securities. We have applied
to list the ING Perpetual Debt Securities on
the New York Stock Exchange under the symbol
"ISP." Trading of the ING Perpetual Debt
Securities is expected to begin within 30 days
after the initial delivery of the ING Perpetual
Debt Securities.
Once listed, each ING Perpetual Debt Security
will trade as an individual unit at a trading
price that will take into account the value, if
any, of accrued but unpaid interest.
Governing Law................. The ING Perpetual Debt Securities and the
related Indenture will be governed by, and
construed in accordance with, the laws of the
State of New York, except that the
subordination provisions will be governed by
and construed in accordance with the laws of
The Netherlands.
S-6
Use of Proceeds............... We will use the net proceeds of the issue and
sale of the ING Perpetual Debt Securities for
general corporate purposes and to further
strengthen our capital base.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our ratio of earnings to fixed charges for
the periods indicated:
YEAR ENDED DECEMBER 31,
-------------------------------- SIX MONTHS ENDED
1998 1999 2000 2001 2002 JUNE 30, 2003
---- ---- ---- ---- ---- ----------------
1.25 1.45 1.69 1.23 1.31 1.24
The ratio of earnings to fixed charges is calculated by dividing earnings
by fixed charges. For this purpose, "earnings" means income from continuing
operations before income tax and before minority interests in consolidated
subsidiaries plus fixed charges and losses from investments accounted for under
the equity method. "Fixed charges" means interest expense plus capitalized
interest.
S-7
RISK FACTORS
Your investment in the ING Perpetual Debt Securities will involve a degree
of risk, including those risks which are described in this section. You should
carefully consider the following discussion of risks, as well as the risks set
forth in our Annual Report on Form 20-F and in the accompanying prospectus
beginning on page 3, before deciding whether an investment in the ING Perpetual
Debt Securities is suitable for you.
WE MAY DEFER PAYMENTS ON THE ING PERPETUAL DEBT SECURITIES FOR ANY PERIOD OF
TIME.
We may elect, and under certain circumstances we may be required, to defer
payments on the ING Perpetual Debt Securities for any period of time, subject to
suspension of payments on our Junior Securities, Parity Securities, Junior
Guarantees or Parity Guarantees. Unless deferral is required, deferred payments
will bear interest at a rate of 6.20%. See "Description of the ING Perpetual
Debt Securities -- Deferral of Interest Payments."
THE ING PERPETUAL DEBT SECURITIES ARE PERPETUAL SECURITIES, AND YOU WILL HAVE NO
RIGHT TO CALL FOR THEIR REDEMPTION.
The ING Perpetual Debt Securities are perpetual securities and have no
fixed maturity date or redemption date. We are under no obligation to redeem the
ING Perpetual Debt Securities at any time and you will have no right to call for
their redemption.
WE MAY REDEEM THE ING PERPETUAL DEBT SECURITIES AT ANY TIME IF CERTAIN ADVERSE
TAX OR REGULATORY EVENTS OCCUR AND WE MAY REDEEM THEM AT OUR OPTION ON JANUARY
15, 2009 OR AT ANY TIME ON ANY INTEREST PAYMENT DATE THEREAFTER.
Upon the occurrence of certain tax or regulatory events described more
fully in this prospectus supplement under "Description of the ING Debt
Securities -- Optional Redemption and Redemption upon Certain Events," the ING
Perpetual Debt Securities will be redeemable at any time in whole, but not in
part, at our option. We may also redeem the ING Perpetual Debt Securities at our
option, in whole but not in part, on or after January 15, 2009. Any redemption
of the ING Perpetual Debt Securities will be subject to the conditions described
under "Description of the ING Debt Securities -- Optional Redemption and
Redemption upon Certain Events."
WE ARE NOT PROHIBITED FROM ISSUING FURTHER DEBT WHICH MAY RANK PARI PASSU WITH
OR SENIOR TO THE ING PERPETUAL DEBT SECURITIES.
Subject only to the conditions described in "Description of the ING
Perpetual Debt Securities -- Subordination," there is no restriction on the
amount of debt that we may issue, which ranks senior to the ING Perpetual Debt
Securities or on the amount of securities that we may issue, which ranks pari
passu with the ING Perpetual Debt Securities. The issue of any such debt or
securities may reduce the amount recoverable by you upon our bankruptcy or may
increase the likelihood of a deferral of payments on the ING Perpetual Debt
Securities.
WE MAY DEFER PAYMENTS THAT WE ELECT, OR ARE REQUIRED, TO MAKE PURSUANT TO THE
ALTERNATIVE INTEREST SATISFACTION MECHANISM SHOULD WE FAIL TO HAVE A SUFFICIENT
NUMBER OF ORDINARY SHARES AVAILABLE FOR ISSUE.
If we are to make a payment using the Alternative Interest Satisfaction
Mechanism and we have an insufficient number of Ordinary Shares available for
issue, then our payment obligation will be suspended to the extent of such
insufficiency until such time as sufficient Ordinary Shares are available to
satisfy all or part of the suspended payment obligation, as more fully described
under "Description of the ING Perpetual Debt Securities -- Alternative Interest
Satisfaction Mechanism -- Insufficiency of Payment Ordinary Shares."
S-8
WE MAY DEFER PAYMENTS ON THE ING PERPETUAL DEBT SECURITIES IF A MARKET
DISRUPTION EVENT OCCURS.
If, following our decision to satisfy a payment using the Alternative
Interest Satisfaction Mechanism, in our opinion, a Market Disruption Event
exists, such payment may be deferred until the cessation of such market
disruption, as more fully described under "Description of the ING Perpetual Debt
Securities -- Market Disruption Event." Any such deferred payments shall bear
interest at a rate of 6.20% if the Market Disruption Event continues for 14 days
or more.
THERE ARE LIMITATIONS ON THE REMEDIES AVAILABLE TO YOU AND THE TRUSTEE SHOULD WE
FAIL TO PAY AMOUNTS DUE ON THE ING PERPETUAL DEBT SECURITIES.
If a 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 sums due and unpaid or
commencing a bankruptcy proceeding in The Netherlands, but not elsewhere. The
trustee may not, however, declare the principal amount of any outstanding ING
Perpetual Debt Security to be due and payable. Upon a Payment Event, the sole
remedy available to you and the trustee for recovery of amounts owing in respect
of any payment or principal in respect of the ING Perpetual Debt Securities will
be the institution of bankruptcy proceedings in The Netherlands. Although there
is some doubt under Dutch law whether the trustee would be permitted to commence
a bankruptcy proceeding in The Netherlands, in all cases any holder of the ING
Perpetual Debt Securities with a due and payable claim would be permitted to
commence such proceedings in accordance with Dutch bankruptcy law. See
"Description of the ING Perpetual Debt Securities -- Defaults; Limitation of
Remedies."
YOU WILL BE DEEMED TO HAVE WAIVED ALL RIGHTS OF SET-OFF.
Subject to applicable law, you may not exercise or claim any right of
set-off in respect of any amount we owe you arising under or in connection with
the ING Perpetual Debt Securities and you will be deemed to have waived all such
rights of set-off. See "Description of the ING Perpetual Debt
Securities -- Defaults; Limitation of Remedies."
THE ING PERPETUAL DEBT SECURITIES ARE A NEW ISSUE OF SECURITIES, AND THERE IS NO
ASSURANCE THAT A TRADING MARKET WILL EXIST OR THAT IT WILL BE LIQUID.
The ING Perpetual Debt Securities are a new issue of securities and have no
established trading market. Although application has been made to list the ING
Perpetual Debt Securities on the New York Stock Exchange, there can be no
assurance that an active trading market will develop. Even if an active trading
market does develop, no one, including the underwriters, is required to maintain
its liquidity. The liquidity and the market prices for the ING Perpetual Debt
Securities can be expected to vary with changes in market and economic
conditions, our financial condition and prospects and other factors that
generally influence the market prices of securities.
S-9
WHERE YOU CAN FIND MORE INFORMATION
We file annual reports on Form 20-F and other reports and information on
Form 6-K with the SEC. You may also read and copy any document we file at the
SEC's Public Reference Room at 450 Fifth Street, N.W., Washington, D.C. 20549.
Please call the SEC at 1-800-SEC-0330 for more information about the operation
of the Public Reference Room. You may also inspect our SEC reports and other
information at the New York Stock Exchange, Inc., 20 Broad Street, New York, New
York 10005 or on our website at http://www.ing.com.
We have filed a registration statement on Form F-3 under the Securities Act
of 1933, as amended, with the SEC covering the ING Perpetual Debt Securities.
For further information on the ING Perpetual Debt Securities, you should review
our registration statement and its exhibits.
S-10
INCORPORATION OF INFORMATION WE FILE WITH THE SEC
The SEC allows us to "incorporate by reference" the information we file
with them, which means:
- incorporated documents are considered part of this prospectus supplement;
- we can disclose important information to you by referring you to those
documents; and
- information that we file with the SEC will automatically be considered to
update and supersede this prospectus supplement.
We incorporate by reference the documents listed below, which we filed with
the SEC under the Securities Exchange Act of 1934, as amended:
- Annual Report on Form 20-F for the year ended December 31, 2002, filed on
March 27, 2003; and
- Current Report on Form 6-K filed on October 6, 2003.
We also incorporate by reference any future filings made by us with the SEC
under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934,
as well as any Form 6-K furnished to the SEC to the extent such form 6-K
expressly states that we incorporate such form by reference in this prospectus
supplement, until we sell all of the ING Perpetual Debt Securities covered by
this prospectus supplement.
Except as otherwise noted, we present the financial statement amounts in
this prospectus supplement and the accompanying prospectus and in our Annual
Report in accordance with generally accepted accounting principles in The
Netherlands ("Dutch GAAP"), which differ in certain significant respects from
generally accepted accounting principles in the United States. Please refer to
note 6 of the notes to the consolidated financial statements that are contained
in the Annual Report and note 3 of the notes to the unaudited consolidated
financial statements that are contained in the report on Form 6-K filed on
October 6, 2003 with respect to the six months ended June 30, 2003 that we
incorporate by reference into this prospectus supplement and the accompanying
prospectus for a description of the significant differences between Dutch GAAP
and U.S. GAAP and a reconciliation of certain income statement and balance sheet
items to U.S. GAAP.
You may request, orally or in writing, a copy of any filings referred to
above, at no cost, by contacting us at the following address: ING Groep N.V.,
Attention: Investor Relations, Amstelveenseweg 500, 1081 KL Amsterdam, P.O. Box
810, 1000 AV Amsterdam, The Netherlands, telephone: 011-31-20-541-54-11.
You should rely only on the information contained or incorporated by
reference in this prospectus supplement and the accompanying prospectus. We have
not authorized any other person to provide you with different information. If
anyone provides you with different or inconsistent information, you should not
rely on it. We are not making an offer to sell the ING Perpetual Debt Securities
in any jurisdiction where the offer or sale is prohibited. You should assume
that the information appearing in this prospectus supplement and the
accompanying prospectus, as well as information we previously filed with the SEC
and incorporated by reference, is accurate as of the date on the front cover of
this prospectus supplement only. Our business, financial condition, results of
operations and prospects may have changed since that date. We have taken all
reasonable care to ensure that the statements we made in this prospectus
supplement and the accompanying prospectus are true and accurate in all material
respects and that we have not omitted any material facts that make any of the
statements we made in this prospectus supplement and the accompanying prospectus
misleading.
S-11
CAPITALIZATION AND INDEBTEDNESS
The following table sets forth the Group's capitalization in accordance
with Dutch GAAP on June 30, 2003, both actual and as adjusted to give effect to
this offering.
AT JUNE 30, 2003 AS ADJUSTED
----------------- -----------------
EUR USD(1) EUR USD(1)
------- ------- ------- -------
(IN MILLIONS)
Short-term debt(2).............................. 444,263 517,566 444,263 517,566
======= ======= ======= =======
Long-term debt(2)............................... 81,767 95,259 81,767 95,259
Subordinated loans.............................. 3,014 3,511 3,443 4,011
Minority interests.............................. 1,705 1,986 1,705 1,986
Preference shares of Group companies............ 1,970 2,295 1,970 2,295
Shareholders' equity
Preference shares (nominal value EUR 1.20;
authorized 300,000,000; issued
87,080,450)(3)(4).......................... 104 121 104 121
Ordinary shares (nominal value EUR 0.24;
authorized 3,000,000,000; issued
2,061,674,099)(4).......................... 495 577 495 577
Other surplus reserves........................ 18,594 21,662 18,594 21,662
Total shareholders' equity.................... 19,193 22,360 19,193 22,360
Total capitalization....................... 107,649 125,411 108,078 125,911
---------------
(1) For your convenience, we have translated euro amounts into U.S. dollars at
the Noon Buying Rate on September 30, 2003, of $1.1650 to EUR 1.00.
(2) Short-term debt and long-term debt include savings accounts, time deposits
and other customer credit balances, certificates of deposit, debentures and
other non-subordinated debt securities, securities sold subject to
repurchase agreements, non-subordinated interbank debt and other borrowings.
(3) We have also authorized 900,000,000 Cumulative Preference Shares (nominal
value EUR 1.20), of which there were none outstanding as of June 30, 2003.
(4) As of July 2, 2001, the nominal value of the Preference Shares, Cumulative
Preference Shares and the Ordinary Shares was changed to EUR 1.20, EUR 1.20
and EUR 0.24, respectively.
USE OF PROCEEDS
The net proceeds to ING Groep N.V. from the sale of the ING Perpetual Debt
Securities offered pursuant to this prospectus supplement are expected to be
approximately $484,250,000 (before expenses). We will use the net proceeds of
the issue and sale of the ING Perpetual Debt Securities for general corporate
purposes and to further strengthen our capital base.
S-12
ING GROEP N.V.
GENERAL
We are a global financial institution of Dutch origin and are active in the
fields of banking, insurance and asset management in 60 countries with more than
115,000 employees. We provide a full range of financial services to 60 million
clients worldwide through a variety of distribution channels, giving our clients
the freedom to choose the option that best suits their individual needs.
The Group consists of a broad spectrum of prominent companies that
increasingly serve their clients under the ING brand. Our strategy is to achieve
stable growth while maintaining healthy profitability. Our financial strength,
the broad range of our products and services, the wide diversity of our profit
sources and the diversification of risks form the basis of our continuity and
growth potential.
We market our products and services under a variety of well-recognized and
strong brand names, including Nationale-Nederlanden, ING Bank and Postbank in
The Netherlands, ING (formerly BBL) in Belgium, ING BHF-BANK in Germany and ING
Direct worldwide. Increasingly, our subsidiaries, particularly outside The
Netherlands are choosing to include the letters "ING" and the orange lion in
their name logo. Virtually all ING companies in North America have adjusted
their name and logo during the past two years.
Our home market is Belgium, The Netherlands and Luxembourg, which we refer
to as the Benelux countries, where we are the market leader in integrated
financial services. We also have considerable market positions in the rest of
Europe, North America, South America, Asia and Australia. In The Netherlands, we
are currently the largest life and pension insurer (with a 22% market share) and
the second largest non-life insurer (with an 11% market share). We are currently
the second biggest bank in The Netherlands, with a 25% market share based on
total assets and a 26% market share based on total deposits. Through our banking
and insurance operations, we have a financial relationship with approximately
75% of households in The Netherlands. We are also one of the largest banks and
largest insurers in Belgium with a 12% and 8% market share, respectively.
S-13
DESCRIPTION OF THE ING PERPETUAL DEBT SECURITIES
The following description is only a summary and does not describe every
aspect of the ING Perpetual Debt Securities or the Indenture. Therefore, it may
not contain all of the information that is important to you as a potential
purchaser of the ING Perpetual Debt Securities. If you purchase the ING
Perpetual Debt Securities, your rights will be determined by the ING Perpetual
Debt Securities, the Indenture and the Trust Indenture Act of 1939. In light of
this, you should read the Indenture and the form of the ING Perpetual Debt
Securities filed with the Securities and Exchange Commission before making an
investment decision. You can read the Indenture and the form of ING Perpetual
Debt Securities at the locations listed under "Where You Can Find More
Information" in this prospectus supplement.
GENERAL
The following summary description of the material terms and provisions of
the ING Perpetual Debt Securities supplements the description of certain terms
and provisions of the debt securities of any series set forth in the
accompanying prospectus under the heading "Description of Debt Securities We May
Offer." Reference is hereby made to such description for additional information
relating to the ING Perpetual Debt Securities. Together with the terms of the
debt securities contained in the accompanying prospectus, the terms described
herein constitute a description of the material terms of the ING Perpetual Debt
Securities. In cases of inconsistency between the terms described herein and the
relevant terms of the prospectus, the terms presented herein will apply and
replace those described in the accompanying prospectus.
The ING Perpetual Debt Securities will be issued under our subordinated
debt indenture, dated as of July 18, 2002, between us and The Bank of New York,
as trustee, which we refer to as the Subordinated Indenture, and a third
supplemental indenture, to be dated as of October 28, 2003, 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 will be treated
as a separate series of our subordinated debt securities. We will file a copy of
the Supplemental Indenture relating to the ING Perpetual Debt Securities and the
form of the ING Perpetual Debt Securities with the SEC. In accordance with the
terms of the Subordinated Indenture, we are permitted to issue additional ING
Perpetual Debt Securities that would be considered part of the same series of
ING Perpetual Debt Securities we are offering pursuant to this prospectus
supplement. None of the defeasance provisions contained in Section 1302 of the
Subordinated Indenture will apply to the ING Perpetual Debt Securities and will
not be considered part of the Indenture with respect to the ING Perpetual Debt
Securities.
FORM AND DENOMINATION
We will issue 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. Please read "-- Book-entry System; Delivery and Form" for more
information about the form of the ING Perpetual Debt Securities and their
clearance and settlement.
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 6.20%,
commencing on January 15, 2004 (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.
S-14
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 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:
- 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.
S-15
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, unless we obtain
the prior consent of the relevant regulator, we may satisfy any such payment at
any time, but 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
6.20% 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. 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:
- by conversion into or in exchange for our Ordinary Shares;
- 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;
- in connection with our satisfaction of our, or the satisfaction by any
of our subsidiaries of its, obligations under any of our employee
benefit plans or similar arrangements with or for the benefit of
employees, officers, directors or consultants of the Group;
S-16
- 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
- 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.
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, as the case may
be, 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, as the case may be, 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.
S-17
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 Deferral 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);
- 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.
S-18
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 % 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 Event, 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 Alternative Interest Satisfaction
Mechanism, then we may give notice to the trustee, the Calculation Agent and the
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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.
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 June 30, 2003, we had approximately EUR 6 billion of Senior Debt
outstanding.
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.
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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
The Events of Default and rights to accelerate described in the
accompanying prospectus under "Description of Debt Securities We May
Offer -- Default, Remedies and Waiver of Default -- Events of Default" and
certain remedies provided for under "-- Remedies if an Event of Default Occurs"
do not apply to the ING Perpetual Debt Securities.
The only defaults and remedies are as provided below.
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
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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 offered 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.
ADDITIONAL AMOUNTS
Any amounts to be paid by us on the ING Perpetual Debt Securities will be
made without deduction or withholding for any taxes, assessments or other
charges imposed by the government of The Netherlands or the government of a
jurisdiction in which a successor to us is organized, unless the withholding or
deduction of such taxes, assessments or charges is required by law. In that
event we will pay such additional amounts, which we refer to as Additional
Amounts, as may be necessary in order that the net amounts received by holders
after such withholding or deduction equal the respective amounts of principal
and interest which would have been received in respect of the ING Perpetual Debt
Securities in the absence of such withholding or deduction.
There are certain circumstances in which we will not be obligated to pay
such Additional Amounts. Please see "Description of Debt Securities We May
Offer -- Payment of Additional Amounts with Respect to the Debt Securities" in
the accompanying prospectus.
Whenever we refer in this prospectus supplement or the accompanying
prospectus to principal, interest amounts, Deferred Interest Payments, Mandatory
Partial Payments and/or Accrued Interest
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Payments, we intend to include any Additional Amounts which may become payable
pursuant to the terms of the Indenture as described above.
In the event that any payment is satisfied through the Alternative Interest
Satisfaction Mechanism, then any Additional Amounts which are payable must also
be satisfied through the Alternative Interest Satisfaction Mechanism.
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, 2009,
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, 2009, or on any interest payment date thereafter
at their aggregate principal amount together 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
Securities 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 payment 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 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,
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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 October 17, 2003, 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.
TRADING CHARACTERISTICS
The ING Perpetual Debt Securities will be listed and traded on the New York
Stock Exchange under the symbol "ISP." We expect the ING Perpetual Debt
Securities to trade as an individual unit at a trading price that takes into
account the value, if any, of accrued but unpaid interest. This means that
purchasers will not pay, and sellers will not receive, accrued and unpaid
interest on the ING Perpetual Debt Securities which has not been included in
their trading price.
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BOOK-ENTRY SYSTEM; DELIVERY AND FORM
GENERAL
The ING Perpetual Debt Securities will initially be represented by one or
more global securities in registered form, without coupons attached. They will
be deposited with or on behalf of The Depository Trust Company, DTC, or its
nominee and registered in the name of Cede & Co., as nominee of DTC. Until the
ING Perpetual Debt Securities are exchanged for definitive securities, the
global securities may not be transferred except as a whole by DTC to a nominee
or a successor of DTC.
The ING Perpetual Debt Securities have been accepted for clearance by DTC,
Euroclear and Clearstream, Luxembourg. The initial distribution of the ING
Perpetual Debt Securities will be cleared through DTC only. Beneficial interests
in the global ING Perpetual Debt Securities will be shown on, and transfers
thereof will be effected only through, the book-entry records maintained by DTC
and its direct and indirect participants, including Euroclear and Clearstream,
Luxembourg. Owners of beneficial interests in the ING Perpetual Debt Securities
will receive all payments relating to their ING Perpetual Debt Securities in
U.S. dollars.
So long as DTC, or its nominee, is the holder of a global ING Perpetual
Debt Security, it will be considered the sole holder of the global ING Perpetual
Debt Security for all purposes under the Indenture. Except as described below
under "-- Issuance of Definitive Securities," no participant, indirect
participant or other person will be entitled to have ING Perpetual Debt
Securities registered in its name, receive or be entitled to receive physical
delivery of ING Perpetual Debt Securities in definitive form or be considered
the owner or holder of the ING Perpetual Debt Securities under the Indenture.
Each person having an ownership or other interest in ING Perpetual Debt
Securities must rely on the procedures of DTC, Euroclear and Clearstream,
Luxembourg, and, if a person is not a participant or another securities
intermediary through which that person owns its interest, exercise any rights
and obligations of a holder under the Indenture or the ING Perpetual Debt
Securities. See also "Legal Ownership and Book-Entry Issuance" in the
accompanying prospectus.
PAYMENTS ON THE GLOBAL SECURITIES
Payments of any amounts in respect of any global ING Perpetual Debt
Securities will be made by the trustee to DTC. Payments will be made to
beneficial owners of ING Perpetual Debt Securities in accordance with the rules
and procedures of DTC or its direct and indirect participants, as applicable.
Neither we, the trustee or any of our agents will have any responsibility or
liability for any aspect of the records of any securities intermediary in the
chain of intermediaries between DTC, Euroclear or Clearstream, Luxembourg, and
any beneficial owner of an interest in a global security, or the failure of DTC,
Euroclear or Clearstream, Luxembourg, or any intermediary to pass through to any
beneficial owner any payments that we make to DTC.
For more information about holding ING Perpetual Debt Securities in global
book-entry form please see "Legal Ownership and Book-Entry Issuance" in the
accompanying prospectus.
ISSUANCE OF DEFINITIVE SECURITIES
So long as DTC holds the global ING Perpetual Debt Securities, the global
securities will not be exchangeable for definitive securities unless:
- DTC notifies the trustee that it is unwilling or unable to continue to
hold the book-entry ING Perpetual Debt Securities or DTC ceases to be a
clearing agency registered under the Securities Exchange Act of 1934 and
the trustee does not appoint a successor to DTC which is registered under
the Securities Exchange Act of 1934 within 120 days;
- a Payment Default has occurred and is continuing;
- a Payment Event has occurred;
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- in the event of our bankruptcy we fail to make a payment on the ING
Perpetual Debt Securities when due; or
- at any time we determine in our sole discretion that the global
securities of a particular series should be exchanged for definitive debt
securities of that series in registered form.
Each person having an ownership or other interest in ING Perpetual Debt
Securities must rely exclusively on the rules and procedures of DTC, Euroclear
or Clearstream, Luxembourg, as the case may be, and any agreement with any
participant of DTC, Euroclear or Clearstream, Luxembourg, as the case may be, or
any other securities intermediary through which that person holds its interest
to receive or direct the delivery or possession of any definitive security.
Definitive securities will be issued in registered form only in
denominations of US$25 and any integral multiples thereof. To the extent
permitted by law, we and the trustee are entitled to treat the person in whose
name any definitive security is registered as its absolute owner.
Payments in respect of each series of definitive securities will be made to
the person in whose name the definitive securities are registered as it appears
in the register for that series. Payments will be made in respect of the ING
Perpetual Debt Securities by transfer to the holder's account in New York.
If we issue definitive securities of a particular series in exchange for
global ING Perpetual Debt Securities, DTC, as holder of the global ING Perpetual
Debt Securities, will surrender it against receipt of the definitive securities,
cancel the book-entry securities of that series, and distribute the definitive
securities of that series to the persons in the amounts that DTC specifies.
If definitive securities are issued in the limited circumstances described
above, those securities may be transferred in whole or in part in denominations
of any whole number of securities upon surrender of the definitive securities
certificates together with the form of transfer endorsed on it, duly completed
and executed at the specified office of the trustee. If only part of a
securities certificate is transferred, a new securities certificate representing
the balance not transferred will be issued to the transferor. For more
information regarding the transfer and exchange of definitive securities see
"Description of Debt Securities We May Offer -- Form, Exchange and Transfer of
Debt Securities -- Transfer and Exchange" in the accompanying prospectus.
GOVERNING LAW
The ING Perpetual Debt Securities and the related Indenture will be
governed by, and construed in accordance with, the laws of the State of New
York, except that the subordination provisions of the ING Perpetual Debt
Securities and the Indenture will be governed by and construed in accordance
with the laws of The Netherlands.
GLOSSARY
Certain defined terms that are used in this prospectus supplement 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 payment 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 Market 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."
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"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.
"BASE REDEMPTION PRICE" has the meaning set forth under "Description of the
ING Perpetual Debt Securities -- Optional Redemption and Redemption upon Certain
Events -- Optional Redemption."
"CALCULATION AGENCY AGREEMENT" means the calculation agency agreement to be
dated as of October 28, 2003, 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.
"DEFERRAL NOTICE" has the meaning set forth under "Description of the ING
Perpetual Debt Securities -- Deferral of Interest Payments -- Required Deferral
of Payments."
"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 full.
"ELECTIVE DEFERRAL INTEREST PAYMENT" has the meaning set forth under
"Description of the ING Perpetual Debt Securities -- Deferral of Interest
Payments -- Optional Deferral of Payments."
"INDENTURE" has the meaning set forth under "Description of the ING
Perpetual Debt Securities -- General."
"ING PERPETUAL DEBT SECURITIES" means the 6.20% 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
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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 PAYMENT DATE" has the meaning set forth under "Description of the
ING Perpetual Debt Securities -- Interest."
"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.
"INTEREST RATE" has the meaning set forth under "Description of the ING
Perpetual Debt Securities -- Interest."
"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.
"MANDATORY PARTIAL PAYMENT EVENT" has the meaning set forth under
"Description of the ING Perpetual Debt Securities -- Dividend Stopper; Mandatory
Interest Payment."
"MANDATORY PAYMENT EVENT" has the meaning set forth under "Description of
the ING Perpetual Debt Securities -- Dividend Stopper; Mandatory Interest
Payment."
"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:
- 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
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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:
- with respect to distributions on a return of assets upon our
liquidation; or
- 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:
- 7.70% Noncumulative Guaranteed Trust Preferred Securities issued by ING
Capital Funding Trust I;
- 9.20% Noncumulative Guaranteed Trust Preferred Securities issued by ING
Capital Funding Trust II; and
- 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:
- with respect to distributions on a return of assets upon our
liquidation; or
- 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 Securities issued on September 28, 2001, 7.05% ING Perpetual Debt
Securities issued on July 18, 2002, 7.20% ING Perpetual Debt Securities issued
on December 6, 2002 and Variable Rate ING Perpetual Securities issued on June
20, 2003.
"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 -- Defaults; Limitation of Remedies -- Limitation of
Remedies."
"PAYMENT ORDINARY SHARES" has the meaning set forth under "Description of
the ING Perpetual Debt Securities -- Alternative Interest Satisfaction
Mechanism -- General."
"REGULATORY EVENT" has the meaning set forth under "Description of the ING
Perpetual Debt Securities -- Optional Redemption and Redemption upon Certain
Events -- Redemption upon Certain Events -- Regulatory Event."
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"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.
"SENIOR DEBT" has the meaning set forth under "Description of the ING
Perpetual Debt Securities -- Subordination."
"SOLVENCY CONDITIONS" has the meaning set forth under "Description of the
ING Perpetual Debt Securities -- Payments."
"TAX EVENT" has the meaning set forth under "Description of the ING
Perpetual Debt Securities -- Optional Redemption and Redemption upon Certain
Events -- Redemption upon Certain Events -- Tax Event."
"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."
UNITED STATES TAXATION
This section describes the material United States federal income tax
consequences of owning ING Perpetual Debt Securities. It applies to you only if
you acquire your ING Perpetual Debt Securities in this offering and you hold
your ING Perpetual Debt Securities as capital assets for tax purposes. This
section does not apply to you if you are a member of a special class of holders
subject to special rules, including:
- a dealer in ING Perpetual Debt Securities;
- a trader in ING Perpetual Debt Securities that elects to use a
mark-to-market method of accounting for your ING Perpetual Debt
Securities holdings;
- a tax-exempt organization;
- a life insurance company;
- a person liable for alternative minimum tax;
- a person that actually or constructively owns 10% or more of the voting
stock of ING Groep N.V.;
- a person that holds ING Perpetual Debt Securities as part of a straddle
or a hedging or conversion transaction; or
- a person whose functional currency is not the U.S. dollar.
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This section is based on the Internal Revenue Code of 1986, as amended, its
legislative history, existing and proposed regulations, published rulings and
court decisions all as currently in effect. These laws are subject to change,
possibly on a retroactive basis.
You are a U.S. holder if you are a beneficial owner of ING Perpetual Debt
Securities and you are, for U.S. federal income tax purposes:
- a citizen or resident of the United States;
- a domestic corporation;
- an estate whose income is subject to U.S. federal income tax regardless
of its source; or
- a trust if a U.S. court can exercise primary supervision over the trust's
administration and one or more U.S. persons are authorized to control all
substantial decisions of the trust.
A "non-U.S. holder" is a beneficial owner of ING Perpetual Debt Securities
that is not a U.S. person for U.S. federal income tax purposes.
You should consult your own tax advisor regarding the U.S. federal, state and
local and other tax consequences of owning and disposing of ING Perpetual Debt
Securities in your particular circumstances.
CLASSIFICATION OF THE ING PERPETUAL DEBT SECURITIES
Although the matter is not free from doubt, the ING Perpetual Debt
Securities should be treated as an equity interest in ING Groep N.V., and not as
debt. Accordingly, each "interest" payment should be treated as a distribution
by ING Groep N.V. with respect to such equity interest, and any reference in
this discussion to "dividends" refers to the "interest" payments on the ING
Perpetual Debt Securities. The rest of this discussion so assumes.
TAXATION OF DIVIDENDS
U.S. HOLDERS. Under the U.S. federal income tax laws, and subject to the
passive foreign investment company, or PFIC, rules discussed below, if you are a
U.S. holder, the gross amount of any dividend paid by ING Groep N.V. out of its
current or accumulated earnings and profits (as determined for U.S. federal
income tax purposes) is subject to U.S. federal income taxation. If you are a
noncorporate U.S. holder, dividends paid to you in taxable years beginning
before January 1, 2009 will be taxable to you at a maximum tax rate of 15%
provided that you hold the ING Perpetual Debt Securities for more than 60 days
during the 120-day period beginning 60 days before the ex-dividend date or, if
the dividend is attributable to a period or periods aggregating over 366 days,
provided that you hold the ING Perpetual Debt Securities for more than 90 days
during the 180-day period beginning 90 days before the ex-dividend date and meet
other holding period requirements. The dividend is ordinary income that you must
include in income when you receive the dividend, actually or constructively. The
dividend will not be eligible for the dividends-received deduction generally
allowed to U.S. corporations in respect of dividends received from other U.S.
corporations. Distributions in excess of current and accumulated earnings and
profits, as determined for U.S. federal income tax purposes, will be treated as
a non-taxable return of capital to the extent of your basis in the ING Perpetual
Debt Securities and thereafter as capital gain.
Dividends will be income from sources outside the United States, but
generally will be "passive income" or "financial services income" which is
treated separately from other types of income for purposes of computing the
foreign tax credit allowable to you.
NON-U.S. HOLDERS. If you are a non-U.S. holder, dividends paid to you in
respect of ING Perpetual Debt Securities will not be subject to U.S. federal
income tax unless the dividends are "effectively connected" with your conduct of
a trade or business within the United States, and the dividends are attributable
to a permanent establishment that you maintain in the United States if that is
required by an
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applicable income tax treaty as a condition for subjecting you to U.S. taxation
on a net income basis. In such cases you generally will be taxed in the same
manner as a U.S. holder. If you are a corporate non-U.S. holder, "effectively
connected" dividends may, under certain circumstances, be subject to an
additional "branch profits tax" at a 30% rate or at a lower rate if you are
eligible for the benefits of an income tax treaty that provides for a lower
rate.
TAXATION OF CAPITAL GAINS
U.S. HOLDERS. Subject to the PFIC rules discussed below, if you are a U.S.
holder and you sell or otherwise dispose of your ING Perpetual Debt Securities,
you will recognize capital gain or loss for U.S. federal income tax purposes
equal to the difference between the U.S. dollar value of the amount that you
realize and your tax basis in your ING Perpetual Debt Securities. Capital gain
of a noncorporate U.S. holder that is recognized before January 15, 2009 is
generally taxed at a maximum rate of 15% where the property is held more than
one year. The gain or loss will generally be income or loss from sources within
the United States for foreign tax credit limitation purposes.
NON-U.S. HOLDERS. If you are a non-U.S. holder, you will not be subject to
U.S. federal income tax on gain recognized on the sale or other disposition of
your ING Perpetual Debt Securities unless:
- the gain is "effectively connected" with your conduct of a trade or
business in the United States, and the gain is attributable to a
permanent establishment that you maintain in the United States if that is
required by an applicable income tax treaty as a condition for subjecting
you to U.S. taxation on a net income basis; or
- you are an individual, you are present in the United States for 183 or
more days in the taxable year of the sale and certain other conditions
exist.
If you are a corporate non-U.S. holder, "effectively connected" gains that
you recognize may also, under certain circumstances, be subject to an additional
"branch profits tax" at a 30% rate or at a lower rate if you are eligible for
the benefits of an income tax treaty that provides for a lower rate.
PFIC RULES
We believe that ING Perpetual Debt Securities should not be treated as
stock of a PFIC for U.S. federal income tax purposes, but this conclusion is a
factual determination that is made annually and thus may be subject to change.
If we were to be treated as a PFIC, unless a U.S. holder elects to be taxed
annually on a mark-to-market basis with respect to the ING Perpetual Debt
Securities, gain realized on the sale or other disposition of your ING Perpetual
Debt Securities would in general not be treated as capital gain. Instead, if you
are a U.S. holder, you would be treated as if you had realized such gain and
certain "excess distributions" ratably over your holding period for the ING
Perpetual Debt Securities and would be taxed at the highest tax rate in effect
for each such year to which the gain was allocated, together with an interest
charge in respect of the tax attributable to each such year.
BACKUP WITHHOLDING AND INFORMATION REPORTING
If you are a noncorporate U.S. holder, information reporting requirements,
on Internal Revenue Service Form 1099, generally will apply to:
- dividend payments or other taxable distributions made to you within the
United States; and
- the payment of proceeds to you from the sale of ING Perpetual Debt
Securities effected at a U.S. office of a broker.
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Additionally, backup withholding may apply to such payments if you are a
noncorporate U.S. holder that:
- fails to provide an accurate taxpayer identification number;
- is notified by the Internal Revenue Service that you have failed to
report all interest and dividends required to be shown on your federal
income tax returns; or
- in certain circumstances, fails to comply with applicable certification
requirements.
If you are a non-U.S. holder, you are generally exempt from backup
withholding and information reporting requirements with respect to:
- dividend payments made to you outside the United States by ING Groep N.V.
or another non-U.S. payor; and
- other dividend payments and the payment of the proceeds from the sale of
ING Perpetual Debt Securities effected at a U.S. office of a broker, as
long as the income associated with such payments is otherwise exempt from
U.S. federal income tax; and:
- the payor or broker does not have actual knowledge or reason to know
that you are a U.S. person; and you have furnished the payor or broker:
- an Internal Revenue Service Form W-8BEN or an acceptable substitute
form upon which you certify, under penalties of perjury, that you are
a non-U.S. person; or
- other documentation upon which it may rely to treat the payments as
made to a non-U.S. person in accordance with U.S. Treasury
regulations; or
- you otherwise establish an exemption.
Payment of the proceeds from the sale of ING Perpetual Debt Securities
effected at a foreign office of a broker generally will not be subject to
information reporting or backup withholding. However, a sale of ING Perpetual
Debt Securities that is effected at a foreign office of a broker will be subject
to information reporting and backup withholding if:
- the proceeds are transferred to an account maintained by you in the
United States;
- the payment of proceeds or the confirmation of the sale is mailed to you
at a U.S. address; or
- the sale has some other specified connection with the United States as
provided in U.S. Treasury regulations,
unless the broker does not have actual knowledge or reason to know that you are
a U.S. person and the documentation requirements described above are met or you
otherwise establish an exemption.
In addition, a sale of ING Perpetual Debt Securities effected at a foreign
office of a broker will be subject to information reporting if the broker is:
- a U.S. person;
- a controlled foreign corporation for U.S. tax purposes;
- a foreign person 50% or more of whose gross income is effectively
connected with the conduct of a U.S. trade or business for a specified
three-year period; or
- a foreign partnership, if at any time during its tax year:
- one or more of its partners are "U.S. persons," as defined in U.S.
Treasury regulations, who in the aggregate hold more than 50% of the
income or capital interest in the partnership; or
- such foreign partnership is engaged in the conduct of a U.S. trade or
business,
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unless the broker does not have actual knowledge or reason to know that you are
a U.S. person and the documentation requirements described above are met or you
otherwise establish an exemption. Backup withholding will apply if the sale is
subject to information reporting and the broker has actual knowledge that you
are a U.S. person.
You generally may obtain a refund of any amounts withheld under the backup
withholding rules that exceed your income tax liability by filing a refund claim
with the U.S. Internal Revenue Service.
S-34
THE NETHERLANDS TAXATION
This section provides a general description of the material Netherlands tax
issues and consequences of acquiring, holding, redeeming and/or disposing of the
ING Perpetual Debt Securities. This summary provides general information only
and is restricted to the matters of Netherlands taxation stated therein. The
information given below is neither intended as tax advice nor purports to
describe all of the tax considerations that may be relevant to a prospective
purchaser of the ING Perpetual Debt Securities.
You should consult your own tax advisor regarding Netherlands tax consequences
of owning or disposing of ING Perpetual Debt Securities in your particular
circumstances.
This summary is based on the tax legislation, published case law, and other
regulations in force as of October 15, 2003, without prejudice to any amendments
introduced at a later date and implemented with or without retroactive effect.
In the following, it is assumed that the holders of the ING Perpetual Debt
Securities do not hold a substantial interest in ING Groep N.V. Generally
speaking, an interest in the share capital of ING Groep N.V. should not be
considered a substantial interest if the holder of such interest, and, if the
holder is a natural person, his or her spouse, registered partner, certain other
relatives or certain persons sharing the holder's household, alone or together,
does or do not hold, whether directly or indirectly, the ownership of, or
certain rights over, shares or rights resembling shares representing five
percent or more of the total issued and outstanding capital, or the issued and
outstanding capital of any class of shares, of ING Groep N.V.
Furthermore, it is assumed the holders of the ING Perpetual Debt Securities
are not residents of The Netherlands, not deemed to be residents of The
Netherlands and have not opted to be treated as resident in The Netherlands. We
have been informed that under the current tax law and jurisprudence of The
Netherlands:
WITHHOLDING TAX
All payments by us in respect of the ING Perpetual Debt Securities can be
made without withholdings or deductions for or on account of any taxes, duties
or charges of any nature whatsoever that are or may be withheld or assessed by
the Dutch tax authorities or any political subdivision thereof or therein or any
of their representatives, agents or delegates.
TAXES ON INCOME AND CAPITAL GAINS
A holder of an ING Perpetual Debt Security who derives income from such ING
Perpetual Debt Security, or who realizes a gain on the disposal or redemption of
an ING Perpetual Debt Security, will not be subject to Dutch taxation on income
or capital gains, unless:
- such income or gain is attributable to an enterprise or deemed enterprise
or part thereof which is carried on through a permanent establishment or
a permanent representative in The Netherlands;
- the holder is an individual, and such income or gain is attributable to
his or her activities in The Netherlands, other than business or
employment activities, which include the use of that individual's
specific knowledge or activities performed by that individual with
respect to the ING Perpetual Debt Securities as a result of which such
individual can make a return on the ING Perpetual Debt Securities that is
in excess of the return on regular portfolio management activities
("belastbaar resultaat uit overige werkzaamheden in Nederland");
- the holder performs or has performed employment activities in The
Netherlands, or performs or has performed employment activities outside
The Netherlands for remuneration that is subject to Dutch
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payroll tax and social security contributions, and such income or capital
gains qualify as income from these employment activities; or
- the holder is entitled to share in the profits of an enterprise that is
effectively managed in The Netherlands, other than by way of securities
or through an employment contract as to which the ING Perpetual Debt
securities are attributable.
GIFTS, ESTATE OR INHERITANCE TAX
There will be no Dutch gift, estate or inheritance taxes levied on the
receipt of an ING Perpetual Debt Security by way of gift by a holder, or upon
the death of a holder, unless:
- at the time of the gift or death, an ING Perpetual Debt Security can be
attributed to an enterprise or part thereof which is carried on through a
permanent establishment or a permanent representative in the Netherlands;
or
- the holder of an ING Perpetual Debt Security dies within 180 days of
making the gift, and at the time of death is a resident or deemed
resident of the Netherlands.
VALUE-ADDED TAX
No value-added tax will be due in The Netherlands in respect of payments
made in consideration for the issue of the ING Perpetual Debt Securities,
whether in respect of payments of interest and principal or in respect of the
transfer of an ING Perpetual Debt Security.
OTHER TAXES
There will be no registration tax, capital contribution tax, customs duty,
stamp duty, real estate transfer tax or any other similar tax or duty due in The
Netherlands in respect of or in connection with the issue, transfer, execution
or delivery by legal proceedings of the ING Perpetual Debt Securities or the
performance of our obligations under the relevant documents. However, capital
contribution tax will be payable by us upon the issue of our Ordinary Shares to
the trustee or its agent on the basis of the Alternative Interest Satisfaction
Mechanism.
RESIDENCY
A holder of an ING Perpetual Debt Security will not become, and will not be
deemed to be, resident in The Netherlands by the sole virtue of holding such ING
Perpetual Debt Security or the execution, performance, and/or delivery of the
relevant documents.
EUROPEAN UNION SAVINGS DIRECTIVE
On June 3, 2003, the Council of the European Union adopted a Council
Directive on the taxation of savings income in the form of interest payments
(the "Directive"). This Directive will apply to interest payments (as defined in
the Directive) made in one Member State to or for individual beneficial owners
(as defined in the Directive) who are resident in another Member State and will
require all Member States to adopt an information-reporting system with regard
to such payments. However, for a transitional period, Austria, Belgium and
Luxembourg will be permitted to operate a withholding tax system.
Member States will be required to implement the Directive by January 1,
2005 provided that certain European third countries and certain dependent or
associated territories apply the equivalent or, as the case may be, the same
measures from that date. The Council will decide at least six months prior to
this date whether this condition will be met, and will otherwise adopt on a new
date. The transitional period will commence on the same date.
Under the information reporting system, a Member State will automatically
communicate to the beneficial owner's Member State of residence information
regarding interest payments made by paying agents (as defined in the Directive)
established within the former Member State (including the identity and residence
of the
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beneficial owner), without requiring reciprocity. Under the withholding tax
system (for Austria, Belgium and Luxembourg), a Member State will levy
withholding tax in respect of interest payments made by paying agents
established within their respective territories at a rate of 15% during the
first three years of the transitional period, 20% for the subsequent three years
and 35% thereafter. The transitional period will end, and those Member States
permitted to levy a withholding tax will, instead be required to implement an
information reporting system if and when the European Community enters into
certain agreements with certain third countries regarding information exchange
with respect to interest payments.
Under the Directive, the term "paying agent" means, generally, the last
intermediary in any given chain of intermediaries that pays interest directly
to, or secures the payment of interest for the immediate benefit of, the
beneficial owner; the term "interest" is defined broadly and would include
interest relating to debt claims of every kind, including income from bonds; and
the term "beneficial owner" means any individual who receives an interest
payment or any individual for whom an interest payment is secured, unless he or
she provides evidence that it was not received or secured for his or her own
benefit.
Draft legislation was presented to Dutch parliament on September 16, 2003
with a view to implementing the Directive in the Netherlands. Assuming this
legislation takes effect in its current form, an individual holder of Notes who
is resident in an EU Member State other than the Netherlands may become subject
to the automatic supply of information to the Member State in which the
individual is resident with regard to interest payments made by (or in certain
cases, to) paying agents established in The Netherlands.
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UNDERWRITING
Subject to the terms and conditions set forth in an Underwriting Agreement,
dated October 17, 2003, we have agreed to sell to each of the Underwriters named
below, and each of the Underwriters, for whom Morgan Stanley & Co. Incorporated
and ING Financial Markets LLC are acting as Representatives, has severally
agreed to purchase the aggregate principal amount of ING Perpetual Debt
Securities set forth opposite the name of such Underwriter below. The
Underwriters can be reached at either of the following addresses: c/o Morgan
Stanley & Co. Incorporated, 1585 Broadway, New York, New York 10036 or c/o ING
Financial Markets LLC, 1325 Avenue of the Americas, New York, New York 10017. In
the Underwriting Agreement, the several Underwriters have agreed, subject to the
terms and conditions set forth in the Underwriting Agreement, to purchase all of
the ING Perpetual Debt Securities offered hereby if any of the ING Perpetual
Debt Securities are purchased. If an Underwriter defaults, the Underwriting
Agreement provides that, in certain circumstances, the purchase commitments of
the non-defaulting Underwriters may be increased or the Underwriting Agreement
may be terminated.
PRINCIPAL
AMOUNT OF ING
PERPETUAL DEBT
UNDERWRITER SECURITIES
----------- --------------
Morgan Stanley & Co. Incorporated........................... $ 69,062,500
ING Financial Markets LLC .................................. 69,062,500
Citigroup Global Markets Inc. .............................. 69,062,500
Merrill Lynch, Pierce, Fenner & Smith Incorporated ......... 69,062,500
UBS Securities LLC ......................................... 69,062,500
Wachovia Capital Markets, LLC .............................. 69,062,500
Goldman, Sachs & Co. ....................................... 10,000,000
HSBC Securities (USA) Inc. ................................. 10,000,000
A.G. Edwards & Sons, Inc. .................................. 2,812,500
Banc of America Securities LLC.............................. 2,812,500
BB&T Capital Markets, Inc. ................................. 2,812,500
Bear, Stearns & Co. Inc. ................................... 2,812,500
BNP Paribas Securities Corp. ............................... 2,812,500
Charles Schwab & Co., Inc. ................................. 2,812,500
RBC Dain Rauscher Inc. ..................................... 2,812,500
Deutsche Bank Securities Inc. .............................. 2,812,500
H&R Block Financial Advisors, Inc. ......................... 2,812,500
J.P. Morgan Securities Inc. ................................ 2,812,500
Legg Mason Wood Walker, Incorporated ....................... 2,812,500
Lehman Brothers Inc. ....................................... 2,812,500
Oppenheimer & Co. Inc. ..................................... 2,812,500
Quick and Reilly, Inc. ..................................... 2,812,500
TD Waterhouse Investor Services, Inc. ...................... 2,812,500
U.S. Bancorp Piper Jaffray Inc. ............................ 2,812,500
Wells Fargo Brokerage Services, LLC......................... 2,812,500
Advest, Inc. ............................................... 937,500
Robert W. Baird & Co. Incorporated.......................... 937,500
Banc One Capital Markets, Inc. ............................. 937,500
William Blair & Co. ........................................ 937,500
D.A. Davidson & Co. ........................................ 937,500
Fifth Third Securities, Inc. ............................... 937,500
J.J.B. Hilliard, W.L. Lyons, Inc. .......................... 937,500
Janney Montgomery Scott LLC................................. 937,500
C.L. King & Associates, Inc. ............................... 937,500
McDonald Investments Inc., A KeyCorp Company................ 937,500
McGinn, Smith & Co. Inc. ................................... 937,500
Mesirow Financial, Inc. .................................... 937,500
Morgan Keegan & Company, Inc. .............................. 937,500
Pershing/ a Division of Donaldson, Lufkin & Jenrette........ 937,500
Raymond James & Associates, Inc. ........................... 937,500
Ryan, Beck & Co. LLC ....................................... 937,500
Southwest Securities, Inc. ................................. 937,500
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PRINCIPAL
AMOUNT OF ING
PERPETUAL DEBT
UNDERWRITER SECURITIES
----------- --------------
Stifel, Nicolaus & Company Incorporated .................... 937,500
SunTrust Capital Markets, Inc. ............................. 937,500
--------------
Total............................................. $ 500,000,000
==============
The Underwriters propose initially to offer the ING Perpetual Debt
Securities to the public at the initial public offering price set forth on the
cover page of this prospectus supplement, and to certain dealers at such price
less a concession not in excess of 2.00% of the principal amount thereof;
provided that such concession for sales of $1,000,000 or more aggregate
principal amount of ING Perpetual Debt Securities to a single purchaser will not
be in excess of 1.20% of the principal amount thereof. The Underwriters may
allow, and those dealers may reallow, a concession not in excess of 1.80% of the
principal amount thereof to certain other dealers. After the initial offering,
the public offering price and other selling terms may from time to time be
varied by the Representatives.
Application has been made to list the ING Perpetual Debt Securities on the
New York Stock Exchange under the symbol "ISP." Trading of the ING Perpetual
Debt Securities on the New York Stock Exchange is expected to commence within a
30-day period after the initial delivery of the ING Perpetual Debt Securities.
The Representatives have advised us that they intend to make a market in the ING
Perpetual Debt Securities before the commencement of trading on the New York
Stock Exchange. The Representatives will have no obligation to make a market in
the ING Perpetual Debt Securities, however, and may cease market-making
activities, if commenced, at any time.
We have agreed not to sell or transfer any ING Perpetual Debt Securities or
any perpetual security substantially similar to the ING Perpetual Debt
Securities for 30 days after the date of this prospectus supplement without
first obtaining the prior written consent of the Representatives. Specifically,
we have agreed not to, directly or indirectly, sell, offer to sell, grant any
option to sell or otherwise dispose of any ING Perpetual Debt Securities, or any
security substantially similar to the ING Perpetual Debt Securities, other than
pursuant to this prospectus supplement.
In connection with the issuance of the ING Perpetual Debt Securities, the
Underwriters may engage in transactions that stabilize, maintain or otherwise
affect the price of the ING Perpetual Debt Securities. Specifically, the
Underwriters may overallot the offering, creating a syndicate short position. In
addition, the Underwriters may bid for and purchase ING Perpetual Debt
Securities in the open market to cover syndicate shorts or to stabilize the
price of the ING Perpetual Debt Securities above independent market levels. The
Underwriters are not required to engage in these activities, and may end any of
these activities at any time.
Each Underwriter has agreed that:
- it has not offered or sold and before the date six months after the date
of issue of the ING Perpetual Debt Securities will not offer or sell any
ING Perpetual Debt Securities to persons in the United Kingdom except to
persons whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments, as principal or agent, for the
purposes of their businesses or otherwise in circumstances that have not
resulted and will not result in an offer to the public in the United
Kingdom within the meaning of the Public Offers of Securities Regulations
1995;
- it has complied and will comply with all the applicable provisions of the
Financial Services and Markets Act 2000, or FSMA, of Great Britain with
respect to anything done by it in relation to the ING Perpetual Debt
Securities in, from or otherwise involving the United Kingdom;
- it has only communicated or caused to be communicated and will only
communicate or cause to be communicated any invitation or inducement to
engage in investment activity (within the meaning of Section 21 of the
FSMA) received by it in connection with the issue or sale of the ING
Perpetual Debt Securities or any investments representing the ING
Perpetual Debt Securities
S-39
(including without limitation the registration statement registering the
ING Perpetual Debt Securities, the accompanying prospectus and this
prospectus supplement) in circumstances in which Section 21(1) of the
FSMA does not apply to it;
- the ING Perpetual Debt Securities shall exclusively be offered to natural
or legal persons who are established, domiciled or have their residence
(collectively, "are resident") outside The Netherlands and, accordingly,
not to persons who are resident in The Netherlands. We have filed a
statement with The Netherlands Authority for the Financial Markets
(Stichting Autoriteit Financiele Markten) that the offering of the ING
Perpetual Debt Securities, each announcement thereof and this prospectus
supplement comply with the laws and regulations of any state or country
where the persons to whom the offer is made are resident; and
- with respect to any other jurisdiction outside of the United States, it
has not offered or sold and will not offer or sell any of the ING
Perpetual Debt Securities in any jurisdiction, except under circumstances
that resulted in or will result in compliance with the applicable rules
and regulations of such jurisdiction.
Before the offering, there has been no public market for the ING Perpetual
Debt Securities. In order to meet the requirements for listing the ING Perpetual
Debt Securities on the New York Stock Exchange, the Underwriters will undertake:
- to ensure that there will be not less than 1,000,000 publicly-held ING
Perpetual Debt Securities;
- to ensure that the aggregate market value of the ING Perpetual Debt
Securities will be not less than $4,000,000; and
- to sell lots of 100 or more ING Perpetual Debt Securities to a minimum of
400 beneficial holders.
Pursuant to Rule 2720 of the NASD, no NASD member will execute transactions
in any discretionary account without the prior specific written approval of the
customer. We have agreed to indemnify the Underwriters against, or contribute to
payments that the Underwriters may be required to make in respect of, certain
liabilities, including liabilities under the Securities Act of 1933.
The Underwriters and/or their affiliates have provided investment banking,
commercial banking and financial advisory services to us or our affiliates in
the past, for which they have received customary compensation and expense
reimbursement, and may do so again in the future. ING Financial Markets LLC, our
subsidiary, is participating in this offering of ING Perpetual Debt Securities
as an Underwriter.
It is expected that delivery of the ING Perpetual Debt Securities will be
made against payment therefor on or about the date specified in the last
paragraph of the cover page of this prospectus supplement, which will be the
seventh business day following the date of pricing of the ING Perpetual Debt
Securities (such settlement cycle being herein referred to as "T+7"). Trades in
the secondary market generally are required to settle in three business days,
unless the parties to any such trade expressly agree otherwise. Accordingly,
purchasers who wish to trade ING Perpetual Debt Securities on the date of
pricing or the next four business days will be required, by virtue of the fact
that the ING Perpetual Debt Securities initially will settle in T+7, to specify
an alternate settlement cycle at the time of any such trade to prevent a failed
settlement. Purchasers of ING Perpetual Debt Securities who wish to trade
certificates on the date of pricing or the next four business days should
consult their own advisors.
VALIDITY OF THE SECURITIES
Sullivan & Cromwell LLP, New York, New York, our U.S. counsel, and Davis
Polk & Wardwell, U.S. counsel for the Underwriters, will pass on the validity of
the ING Perpetual Debt Securities with respect to U.S. law. De Brauw Blackstone
Westbroek N.V., Amsterdam, The Netherlands, will pass on certain matters
relating to the ING Perpetual Debt Securities under Dutch law. KPMG Meijburg &
Co., Amsterdam, The Netherlands, will pass on certain Dutch tax matters for us.
Sullivan & Cromwell LLP and Davis Polk & Wardwell may rely upon the opinion of
De Brauw Blackstone Westbroek N.V. with respect to all matters of Dutch law.
S-40
EXPERTS
The Consolidated Financial Statements of the Group as of December 31, 2002
and 2001 and for each of the years in the three-year period ended December 31,
2002 incorporated by reference into this prospectus and the Registration
Statement have been audited by Ernst & Young Accountants, independent auditors,
as set forth in their report thereon incorporated by reference herein. Their
report is based in part on the report of KPMG Accountants N.V., independent
auditors, that is incorporated by reference herein, which, as to the years 2002,
2001 and 2000, is based upon the report of other auditors including the report
of Ernst & Young Reviseurs d'Enterprises S.C.C., Independent Auditors, that is
incorporated by reference herein. The financial statements referred to above are
included in reliance upon such reports given on the authority of such firms as
experts in auditing and accounting.
S-41
PROSPECTUS
$3,000,000,000
[ING LOGO]
ING GROEP N.V.
(Amsterdam, The Netherlands)
----------------------
By this prospectus, we may offer from time to time up to $3,000,000,000 of:
- DEBT SECURITIES; AND
- AMERICAN DEPOSITARY RECEIPTS.
------------------------
Bearer receipts representing our Ordinary Shares are traded on the Official
Segment of Euronext Amsterdam N.V.'s Stock Exchange, the principal trading
market for the bearer receipts. The bearer receipts are also listed on the stock
exchanges of Brussels, Frankfurt and Paris, as well as on the Swiss Exchange.
American Depositary Shares, representing all bearer receipts, are listed on the
New York Stock Exchange under the symbol "ING."
When we offer securities, we will provide you with a prospectus supplement
describing the terms of the specific issue of securities including the offering
price of the securities. We may sell the securities directly to purchasers,
through underwriters, dealers or agents or through any combination of these
methods.
BEFORE MAKING ANY INVESTMENT, YOU SHOULD READ THIS PROSPECTUS AND THE
ACCOMPANYING PROSPECTUS SUPPLEMENT CAREFULLY. INVESTING IN THE SECURITIES
INVOLVES RISKS. SEE "RISK FACTORS" BEGINNING ON PAGE 3 TO READ ABOUT FACTORS YOU
SHOULD CONSIDER BEFORE PURCHASING THE SECURITIES.
------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
This prospectus may not be used to sell securities unless it is accompanied
by a prospectus supplement.
------------------------
THE DATE OF THIS PROSPECTUS IS JULY 1, 2002
TABLE OF CONTENTS
Prospectus Summary.......................................... 1
Ratio of Earnings to Fixed Charges.......................... 2
Risk Factors................................................ 3
Where You Can Find More Information......................... 5
Forward-Looking Statements.................................. 7
About This Prospectus....................................... 7
ING Groep N.V............................................... 8
Capitalization and Indebtedness............................. 10
Use of Proceeds............................................. 10
Description of Debt Securities We May Offer................. 11
Description of Ordinary Shares.............................. 36
Description of the Stichting Trust and the Bearer
Receipts.................................................. 39
Description of American Depositary Shares We May Offer...... 41
Legal Ownership and Book-Entry Issuance..................... 47
Taxation.................................................... 54
ERISA Considerations........................................ 75
Plan of Distribution........................................ 76
Validity of the Securities.................................. 77
Experts..................................................... 78
Expenses.................................................... 78
Notices..................................................... 78
i
PROSPECTUS SUMMARY
This summary highlights information contained elsewhere in this prospectus
or incorporated by reference into this prospectus as further described below
under "Where You Can Find More Information." This summary does not contain all
the information that you should consider before investing in the securities
being offered by this prospectus. You should carefully read the entire
prospectus, the documents incorporated by reference into this prospectus and the
prospectus supplement relating to the securities that you propose to buy,
especially any description of investment risks that we may include in the
prospectus supplement.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
SEC utilizing a shelf registration process. Under this shelf process, we may
sell any combination of the securities described in this prospectus in one or
more offerings up to a total amount of $3,000,000,000. This prospectus provides
you with a general description of the securities we may offer. Each time we sell
securities, we will provide a prospectus supplement that will contain specific
information about the terms of that offering. The prospectus supplement may also
add, update or change information contained in this prospectus. You should read
both this prospectus and any prospectus supplement together with the additional
information described under the heading "Where You Can Find More Information."
ING GROEP N.V.
ING Groep N.V. is a holding company incorporated in 1991 under the laws of
The Netherlands, with its corporate seat and headquarters in Amsterdam, The
Netherlands. ING Group is one of the world's largest financial service
providers, offering a comprehensive range of life and non-life insurance,
commercial and investment banking, asset management and related products and
services in 65 countries worldwide through its various subsidiary operations.
ING Groep N.V.'s headquarters are located at Strawinskylaan 2631, 1077 ZZ
Amsterdam, P.O. Box 810, 1000 AV Amsterdam, The Netherlands, telephone
31-20-541-54-11.
THE SECURITIES WE ARE OFFERING
We may offer any of the following securities from time to time:
- debt securities; and
- american depositary receipts.
When we use the term "securities" in this prospectus, we mean any of the
securities we may offer pursuant to this prospectus and a prospectus supplement,
unless we say otherwise. This prospectus, including the following summary,
describes the general terms that may apply to the securities. The specific terms
of any particular securities that we may offer will be described in a separate
supplement to this prospectus.
DEBT SECURITIES
Our debt securities may be senior or subordinated in right of payment. For
any particular debt securities we offer, the applicable prospectus supplement
will describe:
- the specific designation, the aggregate principal or face amount and the
purchase price;
- the ranking, whether senior or subordinated;
- the stated maturity, if any;
- the redemption terms, if any;
- the rate, or manner of calculating the rate, and the payment dates for
interest, if any;
- the amount or manner of calculating the amount payable at maturity; and
- any other specific terms.
We will issue the senior and subordinated debt securities under separate
indentures between us and The Bank of New York, as trustee.
1
AMERICAN DEPOSITARY RECEIPTS
We may issue bearer depositary receipts representing our ordinary shares
which will be held in the form of american depositary shares, as evidenced by
ADRs. ADRs are American Depositary Receipts, which usually make owning foreign
shares easier. Each ADR will represent one bearer depositary receipt in respect
of one Ordinary Share. The ADRs will be issued by JPMorgan Chase Bank, as
depositary. See "Description of Ordinary Shares" and "Description of the
Stichting Trust and the Bearer Receipts" for a description of the Ordinary
Shares and the bearer depositary receipts that the ADRs represent.
FORM OF SECURITIES
We will issue the securities in book-entry form through one or more
depositaries, such as The Depository Trust Company, or DTC, Euroclear or
Clearstream, Luxembourg, named in the applicable prospectus supplement. Each
sale of a security in book-entry form will settle in immediately available funds
through the depositary, unless otherwise stated. We will issue debt securities
only in registered form, without coupons, although we may issue debt securities
in bearer form if so specified in the applicable prospectus supplement.
PAYMENT CURRENCIES
Amounts payable in respect of the securities (other than bearer receipts),
including the purchase price, will be payable in U.S. dollars, unless the
applicable prospectus supplement says otherwise.
LISTING
If any securities are to be listed or quoted on a securities exchange or
quotation system, the applicable prospectus supplement will say so.
USE OF PROCEEDS
Unless we indicate otherwise in the applicable prospectus supplement, we
intend to use the net proceeds from the sales of securities to provide
additional funds for our operations and for other general corporate purposes.
MANNER OF OFFERING
When we issue new securities, we may offer them for sale to or through
underwriters, dealers and agents, including our affiliates, or directly to
purchasers. The applicable prospectus supplement will include any required
information about the firms we use and the discounts or commissions we may pay
them for their services.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our ratio of earnings to fixed charges for
the periods indicated:
YEAR ENDED DECEMBER 31,
------------------------------------
1997 1998 1999 2000 2001
---- ---- ---- ---- ----
Earnings to Fixed Charges:
Including Interest on Deposits........................ 1.39 1.25 1.45 1.72 1.31
The ratio of earnings to fixed charges is calculated by dividing earnings
by fixed charges. For this purpose, "earnings" means income from continuing
operations before income tax and before minority interests in consolidated
subsidiaries plus fixed charges and losses from investments accounted for under
the equity method. "Fixed charges" means interest expense plus capitalized
interest.
2
RISK FACTORS
Our financial results are affected by a number of risk factors that
directly or indirectly affect our business. Some of the factors that may affect
our results of operations are set out below. For a discussion of considerations
relating to specific securities, see "Description of Debt Securities We May
Offer -- Considerations Relating to Indexed Securities" as well as in the
applicable prospectus supplement.
RISKS RELATED TO THE FINANCIAL SERVICES INDUSTRY
WE OPERATE IN HIGHLY COMPETITIVE INDUSTRIES, INCLUDING IN OUR HOME MARKET.
There is substantial competition in The Netherlands and the other countries
in which we do business for the types of insurance, commercial banking,
investment banking and other products and services we provide. Such competition
is most pronounced in our more mature markets of The Netherlands, Belgium, the
rest of Europe, the United States, Canada and Australia. In recent years,
however, competition in emerging markets has also increased as large insurance
and banking industry participants from more developed countries have sought to
establish themselves in markets which are perceived to offer higher growth
potential, and as local institutions have become more sophisticated and
competitive and have sought alliances, mergers or strategic relationships with
our competitors.
In The Netherlands, which is the largest market for our banking operations
and the second largest for our insurance operations, a national policy
historically favoring open markets and the presence of large domestic
competitors in both the insurance and banking sectors has resulted in intense
competition for virtually all of our products and services. In addition, the
Dutch market is a mature market and one in which we already have significant
market shares in most lines of business, which could adversely impact our
ability to further increase our market share.
We are currently the second largest bank in The Netherlands, with a 25%
market share based upon total assets and a 26% market share based on total
deposits. Our main competitors are ABN Amro N.V., with a 34% market share based
upon total assets and a 38% market share based on total deposits, and Rabo Group
B.A., with a 20% market share based upon total deposits and a 21% market share
based on total assets. In The Netherlands, we are also currently the largest
insurance company, with a market share of 22% in the life insurance market and
11% in the non-life insurance market, each based on premium income. Our main
competitors are Fortis Utrecht N.V., with a 12% and 11.7% market share in the
life and non-life markets, respectively, and Aegon N.V., with a 14.1% and 3.5%
market share, respectively.
In the United States, which is the largest market for our insurance
operations, we work in several areas of the insurance market, including life
insurance and pensions (with a 6% market share) fixed and variable annuities
(with a 5% market share), as well as the broker-dealer network market. Our main
competitors in the United States are large financial institutions, such as
Citigroup, AIG, The Hartford and Aegon N.V.
In Belgium, our market share in the insurance market is 6% and our main
competitors are AXA and Fortis Utrecht N.V. We have a market share of 15% in the
banking market and our main competitors are Fortis Utrecht N.V., Dexia S.A. and
KBC Bank N.V.
Increasing competition in these markets may significantly impact our
results if we are unable to match the products and services offered by our
competitors.
CHANGES IN INTEREST RATES AND OTHER MARKET FACTORS MAY ADVERSELY AFFECT OUR
INSURANCE, BANKING AND ASSET MANAGEMENT BUSINESSES.
Fluctuations in interest rates affect the returns we earn on fixed interest
investments. Interest rate changes also affect the market values of, and the
amounts of capital gains or losses we take on, the fixed interest securities we
hold.
The results of our banking operations are affected by our management of
interest rate sensitivity. Interest rate sensitivity refers to the relationship
between changes in market interest rates and changes in net interest income. The
composition of our banking assets and liabilities, and any gap position
resulting from that composition, causes the banking operations' net interest
income to vary with changes in interest
3
rates. In addition, variations in interest rate sensitivity may exist within the
repricing periods or between the different currencies in which we hold interest
rate positions. A mismatch of interest-earning assets and interest-bearing
liabilities in any given period may, in the event of changes in interest rates,
have a material effect on the financial condition or result from operations of
our banking businesses.
In addition to interest rates, activity in the securities markets generally
also significantly affects our banking, securities trading and brokerage
activities, which tends to make those activities more volatile than other parts
of our businesses. We also offer a number of insurance and financial products
that expose us to risks associated with fluctuations in interest rates,
securities prices or the value of real estate assets.
RISKS RELATED TO THE COMPANY
OUR RESULTS MAY BE AFFECTED BY REGIONAL AND EMERGING MARKET EXPOSURES.
In 2001, we derived approximately 23% of our operational income from our
operations in The Netherlands. Accordingly, changes in the Dutch economy and
levels of Dutch consumer spending and downturns in the Dutch real estate,
securities and other markets may have a material adverse effect on our
operations.
Similarly, we derived approximately 52% of our operational income from the
North American market in 2001 due to the acquisition of ReliaStar Financial
Corp., which we refer to as ReliaStar, and the financial services and
international businesses of Aetna Inc., which we refer to as Aetna, and as a
result, changes in the economy or financial markets of the United States and
Canada may also have a material adverse effect on our results.
We derive approximately 10% of our operational income from commercial
banking, investment banking and insurance operations in the emerging markets of
South America, Asia and Central and Eastern Europe and are an active trader of
emerging market loans and debt securities. Historically, our capital markets and
securities trading activities in emerging markets have been more volatile than
those in developed countries and are subject to certain risks, such as political
and currency volatility risks, which we do not face in our more mature markets.
In the past, we have experienced significant fluctuations in the results of our
emerging markets trading operations and no assurance can be given that such
fluctuations will not occur in future periods.
FLUCTUATIONS IN EXCHANGE RATES COULD ADVERSELY AFFECT RESULTS OF OUR OPERATIONS
OUTSIDE THE EUROPEAN UNION.
We publish our consolidated financial statements in euros. In 2001, we
derived approximately 65% of our operational income from operations outside the
European Union. Because of this exposure to non-euro currencies, fluctuations in
the exchange rates used to translate foreign currencies, particularly the U.S.
dollar, the Australian dollar, the Canadian dollar and the Japanese yen, into
euros will impact our reported results of operations and cash flows from year to
year. Exchange rate fluctuations will also affect the value (denominated in
euros) of our investments in our non-European subsidiaries. Our obligations are
primarily denominated in euros and we pay dividends on our Ordinary Shares in
euros. The euro value of those dividends in other currencies is also subject to
exchange rate fluctuations.
The contribution of North American operations to our results has grown
substantially as a consequence of the acquisitions of ReliaStar and Aetna in
2000. As a result, our sensitivity to changes in the U.S. dollar has increased.
Based on our expectation that the euro will strengthen with regard to the U.S.
dollar in the future, we have decided to hedge (at a spot rate of 0.868) the
expected contribution of our North American operations to profit before taxation
in 2002. This means in practice that the impact of a change of the euro by one
cent against the U.S. dollar in 2002 would have a very limited effect on the net
profit of ING Group.
OUR INSURANCE BUSINESS IS SUBJECT TO LOSSES FROM CATASTROPHIC EVENTS.
In our life and non-life insurance and reinsurance businesses, we are
subject to losses from natural and man-made catastrophic events. Such events
include weather and other natural catastrophes such as hurricanes, floods and
earthquakes, as well as events such as the September 11, 2001 terrorist attacks
on the United States. The effect of the September 11, 2001 terrorist attacks on
our net profit is E100 million under Dutch GAAP and E321 million under U.S.
GAAP. The frequency and severity of such events, and the losses associated with
them, are inherently unpredictable and may materially impact our results of
operations.
4
RESTRICTIONS ON SHAREHOLDER RIGHTS COULD REDUCE THE ACCOUNTABILITY OF THE
DIRECTORS AND MANAGEMENT TO SHAREHOLDERS.
While holders of bearer receipts are entitled to attend and speak at
general meetings of shareholders, they have no voting rights, and the Stichting
Trust which holds our Ordinary Shares will exercise the voting rights attached
to the Ordinary Shares for which bearer receipts have been issued. In certain
limited circumstances, an individual holder of bearer receipts who is a person
may obtain voting rights by proxy from the trust. The Stichting Trust is
required to make use of the voting rights attached to the Ordinary Shares in
such a manner that (i) our interests and the interests of our affiliates are
served; (ii) our interests and the interests of our affiliates and all parties
concerned are safeguarded as well as possible; and (iii) influences which could
violate our independence, continuity or identity or which are contrary to our
interests or those of our affiliates are barred to the greatest extent possible.
The Stichting Trust may, but has no obligation to, consult with the holders of
bearer receipts of ADSs in exercising its voting rights in respect of Ordinary
Shares.
Under our Articles of Association, approval of our annual accounts by the
General Meeting of Shareholders acting as a corporate body discharges the
members of the Executive Board and the Supervisory Board from liability in
respect of the exercise of their duties during the financial year concerned,
unless an explicit reservation is made by the General Meeting, subject to
certain provisions of Netherlands law (including provisions relating to
liability of members of Supervisory Boards and Executive Boards upon bankruptcy
of a company).
These arrangements differ substantially from U.S. practice and
significantly reduce the power of shareholders to affect the Group's business
and operations and the accountability of the Group's directors and management.
JUDGMENTS AGAINST US MAY BE DIFFICULT TO ENFORCE.
Most of the members of ING Groep's Supervisory Board, its Executive Board
and some of the experts named in this prospectus are persons who are not
residents of the United States. Most of the assets of the Group and those
non-resident persons are located outside the United States. As a result, you may
not be able to serve process on those persons within the United States or to
enforce judgments against them in United States courts.
You also may not be able to enforce judgments of U.S. courts under the U.S.
federal securities laws in courts outside the United States, including The
Netherlands. The United States and The Netherlands do not currently have a
treaty providing for the reciprocal recognition and enforcement of judgments
(other than arbitration awards) in civil and commercial matters. Therefore, you
would not be able to enforce in The Netherlands a final judgment for the payment
of money rendered by any U.S. federal or state court based on civil liability,
even if the judgment is not based only on the U.S. federal securities laws,
unless a competent court in The Netherlands gives binding effect to the
judgment.
WHERE YOU CAN FIND MORE INFORMATION
We file annual reports on Form 20-F and other reports and information on
Form 6-K with the Securities and Exchange Commission, or the SEC. You may also
read and copy any document we file at the SEC's public reference room at 450
Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 for more information about the public reference rooms and their
copy charges. You may also inspect our SEC reports and other information at the
New York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005 or on
our website at http://www.ing.com.
We have filed a registration statement on Form F-3 under the Securities Act
of 1933, as amended, with the SEC covering the securities. For further
information on the securities of ING Groep N.V., you should review our
registration statement and its exhibits. This prospectus summarizes material
provisions of the contracts and other documents to which we refer you. Since
this prospectus may not contain all the information that you may find important,
you should review the full text of these documents. We have included copies of
these documents as exhibits to our registration statement.
5
The SEC allows us to "incorporate by reference" the information we file
with them, which means:
- incorporated documents are considered part of this prospectus;
- we can disclose important information to you by referring you to those
documents; and
- information that we file with the SEC will automatically be considered to
update and supersede this prospectus.
We incorporate by reference the documents listed below, which we filed with
the SEC under the Securities Exchange Act of 1934, as amended:
- Annual Report on Form 20-F for the year ended December 31, 2001, filed on
July 1, 2002;
- Current Reports on Form 6-K filed on June 26, 2002, June 24, 2002, June
6, 2002, May 23, 2002, May 15, 2002, May 3, 2002, April 23, 2002, April
10, 2002, April 2, 2002, February 21, 2002, January 29, 2002, January 22,
2002; and
- our registration statement on Form 8-A filed on May 20, 1997, describing
the Ordinary Shares, bearer receipts and ADSs, including any further
amendments or reports filed for the purpose of updating those
descriptions.
We also incorporate by reference any future filings made by us with the SEC
under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934,
as well as any Form 6-K furnished to the SEC to the extent such form expressly
states that we are incorporating it by reference herein, until we sell all of
the securities that we have registered.
Except as otherwise noted, we present the financial statement amounts in
this prospectus and in our most recent Annual Report on Form 20-F (which we
refer to as the "Annual Report") in accordance with generally accepted
accounting principles in The Netherlands, which differ in certain significant
respects from generally accepted accounting principles in the United States.
Please refer to Note 6 of the Notes to the Consolidated Financial Statements
that are contained in the Annual Report and that we incorporate by reference
into this prospectus for a description of the significant differences between
Dutch GAAP and U.S. GAAP and a reconciliation of certain income statement and
balance sheet items to U.S. GAAP.
The financial information as of March 31, 2002 included in the report on
Form 6-K filed on May 23, 2002, as referred to above, is presented in accordance
with Dutch GAAP. There are no significant differences between Dutch GAAP and
U.S. GAAP as of March 31, 2002 that are not discussed in Note 6 of the Notes to
the Consolidated Financial Statements that are contained in the Annual Report
with respect to the year ended December 31, 2001. Note 6 also includes
information on newly issued accounting standards. Other than as described in the
Annual Report, we were not required to adopt any new accounting standards during
the first quarter of 2002. This information remains valid as of March 31, 2002.
We have derived the financial data in this prospectus presenting year-end
figures from audited financial statements of the Group. Our "Operational result"
excludes non-operational items. You can find an explanation and a breakdown of
non-operational items in our Annual Report.
You may request, orally or in writing, a copy of any filings referred to
above, excluding exhibits, other than those specifically incorporated by
reference into the documents you request, at no cost, by contacting us at the
following address: ING Groep N.V., Attention: Investor Relations, Strawinskylaan
2631, 1077 ZZ Amsterdam, P.O. Box 810, 1000 AV Amsterdam, The Netherlands,
telephone: 011-31-20-541-54-11. If a particular issue is listed on the
Luxembourg Stock Exchange, you may also obtain a copy of any documents
incorporated by reference in this prospectus, at no cost, at the office of the
Luxembourg listing agent.
You should rely only on the information contained or incorporated by
reference in this prospectus. We have not authorized any other person to provide
you with different information. If anyone provides you with different or
inconsistent information, you should not rely on it. We are not making an offer
to sell these securities in any jurisdiction where the offer or sale is
prohibited. You should assume that the information appearing in this prospectus,
as well as information we previously filed with the Securities and
6
Exchange Commission and incorporated by reference, is accurate as of the date on
the front cover of this prospectus only. Our business, financial condition,
results of operations and prospects may have changed since that date. We have
taken all reasonable care to ensure that the statements we made in this
prospectus are true and accurate in all material respects and that we have not
omitted any material facts that make any of the statements we made in this
prospectus misleading.
FORWARD-LOOKING STATEMENTS
Some of the information contained or incorporated by reference in this
prospectus constitutes "forward-looking statements." Although we have based
these forward-looking statements on our expectations and projections about
future events, it is possible that actual results may differ materially from our
expectations. In many cases, we include a discussion of the factors that are
most likely to cause forward-looking statements to differ from actual results
together with the forward-looking statements themselves. Other factors that
could cause actual results to differ from our expectations include:
- changes in general economic conditions, particularly in The Netherlands;
- changes in performance of financial markets, including emerging markets;
- the frequency and severity of insured loss events;
- changes affecting mortality and morbidity levels and trends;
- changes affecting persistency levels;
- changes affecting interest rate levels;
- changes affecting currency exchange rates, including the euro-U.S. dollar
exchange rate;
- increasing levels of competition in The Netherlands and emerging markets;
- changes in laws and regulations, including monetary convergence and the
European Monetary Union;
- regulatory changes relating to the banking or insurance industries;
- changes in policies of central banks and/or foreign governments; and
- general competitive factors, in each case on a global, regional and/or
national basis.
In light of these factors and the other factors described in this
prospectus, the forward-looking events discussed in this prospectus might not
occur at all or may occur differently than as described. We undertake no
obligation to publicly update or revise any forward-looking statements, whether
as a result of new information or future events or for any other reason.
ABOUT THIS PROSPECTUS
Unless otherwise specified, in this prospectus "ING Groep N.V.," "we,"
"our" and "us" refer to ING Groep N.V., the holding company incorporated under
the laws of The Netherlands; and "ING," "ING Group," or the "Group" refers to
ING Groep N.V. and its consolidated subsidiaries. ING Groep N.V.'s primary
insurance and banking subholdings are ING Verzekeringen N.V. and ING Bank N.V.
When we refer to "ING Insurance," we mean ING Verzekeringen N.V., together with
its consolidated subsidiaries. When we refer to "ING Bank," we mean ING Bank
N.V., together with its consolidated subsidiaries. The "Stichting Trust" refers
to the Stichting Administratiekantoor ING Groep, an administrative trust which
holds approximately 99.9% of the outstanding ordinary shares of ING Groep N.V.
and which issues bearer receipts for such shares.
7
ING GROEP N.V.
GENERAL
We were established on March 4, 1991 through the merger of
Nationale-Nederlanden, the largest insurer in The Netherlands, and NMB Postbank
Group, one of the largest banks in The Netherlands. ING Groep N.V. is
incorporated under the laws of The Netherlands and based in Amsterdam.
We are a global financial institution of Dutch origin and are active in the
fields of banking, insurance and asset management in 65 countries with more than
110,000 employees. We provide a full range of integrated financial services to
private, corporate and institutional clients through a variety of distribution
channels, giving our clients the freedom to choose the option that best suits
their individual needs.
ING Group consists of a broad spectrum of prominent companies working
closely with our customers. Our strategy is to achieve stable growth while
maintaining healthy profitability. Our financial strength, broad range of
products and services, the wide diversity of our profit sources and the
diversification of risks forms the basis for our continuity and growth
potential.
We market our products and services under a variety of well-recognized and
strong brand names, including Nationale-Nederlanden, ING Bank, and Postbank in
The Netherlands, Bank Brussels Lambert in Belgium, BHF-BANK in Germany and ING
Direct worldwide. At the same time, our subsidiaries, particularly outside
Belgium, The Netherlands and Luxembourg, which we refer to as the Benelux
countries, now increasingly choose to include the letters "ING" and the orange
lion in their name logo. Virtually all ING companies in North America have
adjusted their name and logo during the past two years.
Our home market is the Benelux countries, where we are the market leader in
integrated financial services. We also have considerable market positions in the
rest of Europe, North America, South America, Asia and Australia. In The
Netherlands, we are the largest life and pension insurer and the second largest
non-life insurer. ING Bank has the leading position in the Dutch payments
transfer system. Through our banking and insurance operations, we have a
financial relationship with approximately 75% of households in The Netherlands.
We are also one of the largest banks and largest insurers in Belgium.
INSURANCE OPERATIONS
We offer a comprehensive range of life and non-life insurance products in
The Netherlands, Belgium, the United States, Canada and Australia. ING Insurance
also primarily offers a range of life insurance products through start-up
operations, which we refer to as our greenfield operations, in Europe, including
a number of Central and Eastern European countries, Asia and Latin America. Life
insurance products include retirement products and life products for individuals
and groups. In the Group's mature markets, ING offers a broad range of those
products with an increasing emphasis on savings products. In ING's insurance
greenfield operations, the product range is generally more limited with an
orientation towards individual life coverages. All of these products are
tailored to the local markets. In the non-life sector, the Group's insurance
products principally include fire, automobile, accident and health, as well as
workmen's compensation, transport and aviation and third-party liability.
BANKING OPERATIONS
Our banking operations include the commercial banking operations that the
Group conducts in The Netherlands through the branch network of ING Bank
Nederland and through the direct marketing channel that Postbank utilizes,
commercial banking operations in Belgium and internationally that the Group
conducts through BBL, and international corporate and investment banking
operations.
Our domestic banking operations provide a wide array of banking products
and services to individual and corporate customers in The Netherlands.
Individual products and services include consumer loans, mortgage loans, funds
transfer, electronic banking, personal financial services, credit and debit
cards and savings and other deposit accounts. Corporate products and services
include corporate loans, cash management, funds transfer and payment systems,
foreign exchange and leasing.
8
Our international corporate banking activities specialize in emerging
market activities and provide a full range of corporate banking products and
services. ING Barings principally conducts investment banking activities, with
its activities including, among others, equity research, underwriting, advisory
services (principally for cross-border mergers and acquisitions) and trading and
sales of emerging market debt and other financial products.
We also conduct retail banking operations in Australia, Belgium, Canada,
Greece, Hungary, Italy and Poland, with the most significant of these operations
in Australia, Poland and Belgium. Our acquisitions of retail banks in Poland
(1994), Belgium (1998) and Germany (1999) are part of our strategy to provide
integrated financial services in these markets and utilize banc-assurance for
distribution of insurance products.
ASSET MANAGEMENT
The main business units are ING Investment Management, Baring Asset
Management, ING Baring Private Bank, ING Furman Selz Asset Management, Parcom
Ventures, Baring Private Equity Partners, ING Trust and ING Real Estate.
ING Asset Management provides investment management and account management
for institutional investors, international banking services for high net-worth
individuals, ING's real estate and equity investment activities, the management
of ING's own label and third-party investment funds and asset management on
behalf of the ING insurance companies.
9
CAPITALIZATION AND INDEBTEDNESS
The following table sets forth the capitalization of the Group in
accordance with Dutch GAAP on December 31, 2001. Please see "Presentation of
Financial Information" above for a discussion of important considerations
relating to the presentation of this financial data. There has not been a
material adverse change in the indebtedness of the Group since December 31,
2001.
AT DECEMBER 31, 2001
----------------------
EUR USD(1)
--------- ---------
(IN MILLIONS)
Short-term debt(2).............................. 359,989 320,426
========= =========
Long-term debt(2)............................... 87,537 77,917
Subordinated loans.............................. 600 534
Minority interests.............................. 1,462 1,301
Preference shares of Group companies............ 2,542 2,263
Shareholders' equity
Preference shares (nominal value EUR 1.20;
authorized 300,000,000; issued
87,080,450)(3)(4)........................ 104 93
Ordinary shares (nominal value EUR 0.24;
authorized 3,000,000,000; issued
1,992,671,945)(4)........................ 479 426
Other surplus reserves..................... 20,931 18,631
Total shareholders' equity............ 21,514 19,150
--------- ---------
Total capitalization.................. 113,655 101,165
========= =========
---------------
(1) For your convenience, we have translated euro amounts into U.S. dollars at
the Noon Buying Rate on December 31, 2001, of $0.8901 to EUR 1.00.
(2) Short-term debt and long-term debt include savings accounts, time deposits
and other customer credit balances, certificates of deposit, debentures and
other non-subordinated debt securities, securities sold subject to
repurchase agreements, non-subordinated interbank debt, and other
borrowings.
(3) ING Groep N.V. also has authorized 900,000,000 Cumulative Preference Shares
(nominal value EUR 1.20) of which there were none outstanding as of December
31, 2001.
(4) As of July 2, 2001, the nominal value of the Preference Shares, Cumulative
Preference Shares and the Ordinary Shares has been changed to EUR 1.20,
EUR 1.20 and EUR 0.24, respectively.
USE OF PROCEEDS
Except as may be set forth in the applicable prospectus supplement, we will
use the net proceeds from the sale of the securities offered under this
prospectus and the applicable prospectus supplement to provide additional funds
for our operations and for other general corporate purposes. Our general
corporate purposes may include the repayment or reduction of indebtedness,
acquisitions and working capital requirements.
10
DESCRIPTION OF DEBT SECURITIES WE MAY OFFER
GENERAL
Please note that in this section entitled "Description of Debt Securities
We May Offer," references to "ING Groep N.V.," "we," "our" and "us" refer only
to ING Groep N.V. and not to ING's consolidated subsidiaries. Also, in this
section, references to "holders" mean those who own debt securities registered
in their own names, on the books that we or the trustee maintain for this
purpose, and not those who own beneficial interests in debt securities
registered in street name or in debt securities issued in book-entry form
through one or more depositaries. Owners of beneficial interests in the debt
securities should read the section below entitled "Legal Ownership and
Book-Entry Issuance."
THIS SECTION IS ONLY A SUMMARY
This section and your prospectus supplement will summarize all the material
terms of each indenture and your debt security. They do not, however, describe
every aspect of each indenture and your debt security. For example, in this
section and your prospectus supplement, we use terms that have been given
special meaning in the indenture, but we describe the meaning for only the more
important of those terms. As you read this section, please remember that the
specific terms of your debt security as described in your prospectus supplement
will supplement and, if applicable, may modify or replace the general terms
described in this section. If there are any differences between your prospectus
supplement and this prospectus, your prospectus supplement will control. Thus,
the statements we make in this section may not apply to your debt security.
INFORMATION IN YOUR PROSPECTUS SUPPLEMENT
Your prospectus supplement will describe the specific terms of your debt
security, which will include some or all of the following:
- whether it is a senior debt security or a subordinated debt security;
- any limit on the total principal amount of the debt securities of the
same series;
- the stated maturity, if any;
- the specified currency or currencies for principal and interest, if not
U.S. dollars;
- the price at which we originally issue your debt security, expressed as a
percentage of the principal amount, and the original issue date;
- whether your debt security is a fixed rate debt security, a floating rate
debt security or an indexed debt security;
- if applicable, the circumstances under which your debt security may be
redeemed at our option or repaid at the holder's option before the stated
maturity, including any redemption commencement date, repayment date(s),
redemption price(s) and redemption period(s);
- the authorized denominations, if other than $1,000 and integral multiples
of $1,000;
- the depositary for your debt security, if other than DTC, and any
circumstances under which the holder may request securities in non-global
form, if we choose not to issue your debt security in book-entry form
only;
- if your debt security will be issued in bearer form, any special
provisions relating to bearer securities that are not addressed in this
prospectus;
- if applicable, the circumstances under which we will pay additional
amounts on any debt securities and under which we can redeem the debt
securities if we have to pay additional amounts;
- if applicable, any additional investment considerations relating to the
debt securities;
11
- the names and duties of any co-trustees, depositaries, authenticating
agents, paying agents, transfer agents or registrars for your debt
security; and
- any other terms of your debt security, which could be different from
those described in this prospectus.
If your debt security is a fixed rate debt security, the prospectus
supplement will also describe:
- the yearly rate at which your debt security will bear interest, if any;
and
- the interest payment dates.
If your debt security is a floating rate debt security, the prospectus
supplement will also describe:
- the interest rate basis;
- any applicable index currency or maturity, spread or spread multiplier or
initial maximum or minimum rate;
- the interest reset, determination, calculation and payment dates;
- the day count used to calculate interest payments for any period; and
- the calculation agent.
If your debt security is an indexed debt security, the prospectus
supplement will also describe:
- the principal amount, if any, we will pay you at maturity;
- the index that your security is based upon;
- the amount of interest, if any, we will pay you on an interest payment
date or the formula we will use to calculate these amounts, if any; and
- the terms on which your debt security will be exchangeable for or payable
in cash, securities or other property.
If your debt security is also an original issue discount debt security, the
prospectus supplement will also describe the yield to maturity.
DEBT SECURITIES MAY BE SENIOR OR SUBORDINATED
We may issue senior or subordinated debt securities. Neither the senior
debt securities nor the subordinated debt securities will be secured by any
property or assets of the Group. Thus, by owning a debt security, you are one of
our unsecured creditors.
Because our assets consist principally of interests in the subsidiaries
through which we conduct our businesses, our right to participate as an equity
holder in any distribution of assets of any of our subsidiaries upon the
subsidiary's liquidation or otherwise, and thus the ability of our security
holders to benefit from the distribution, is junior to creditors of the
subsidiary, except to the extent that any claims we may have as a creditor of
the subsidiary are recognized. In addition, dividends, loans and advances to us
from some of our subsidiaries may be restricted by the net capital requirements
of our various regulators.
The senior debt securities and, in the case of senior debt securities in
bearer form, any related interest coupons, will constitute part of our senior
debt, will be issued under our senior debt indenture described below and will
rank on a parity with all of our other unsecured and unsubordinated debt.
The subordinated debt securities and, in the case of subordinated debt
securities in bearer form, any related interest coupons, will constitute part of
our subordinated debt, will be issued under our subordinated debt indenture
described below and, except as otherwise set forth in the applicable prospectus
supplement, will be subordinate in right of payment to all of our "senior debt,"
as defined in the subordinated debt indenture. The prospectus supplement for any
series of subordinated debt securities or
12
the information incorporated in this prospectus by reference will indicate the
approximate amount of senior indebtedness outstanding as of the end of our most
recent fiscal quarter.
When we refer to "debt securities" in this prospectus, we mean both the
senior debt securities and the subordinated debt securities.
THE SENIOR DEBT INDENTURE AND THE SUBORDINATED DEBT INDENTURE
The senior debt securities and the subordinated debt securities are each
governed by a document called an indenture -- the senior debt indenture, in the
case of the senior debt securities, and the subordinated debt indenture, in the
case of the subordinated debt securities. Each indenture is a contract between
us and The Bank of New York, which will initially act as trustee. The indentures
are substantially identical, except for the provisions relating to
subordination, which are included only in the subordinated debt indenture.
Neither indenture limits our ability to incur additional indebtedness, including
senior indebtedness.
The trustee under each indenture has two main roles:
- first, the trustee can enforce your rights against us if we default.
There are some limitations on the extent to which the trustee acts on
your behalf, which we describe later under "-- Default, Remedies and
Waiver of Default"; and
- second, the trustee performs administrative duties for us, such as
sending you interest payments and notices.
See "-- Our Relationship with the Trustee" below for more information about
the trustee.
The indenture and its associated documents, including any supplemental
indenture and your debt security, contain the full text of the matters described
in this section and your prospectus supplement. A copy of each indenture has
been filed with the SEC as part of our registration statement. See "Where You
Can Find More Information" above for information on how to obtain a copy.
When we refer to the indenture or the trustee with respect to any debt
securities, we mean the indenture under which those debt securities are issued,
including any supplemental indenture, and the trustee under that indenture.
SUBORDINATION PROVISIONS
Holders of subordinated debt securities should recognize that contractual
provisions in the subordinated debt indenture may prohibit us from making
payments on those securities. Subordinated debt securities are subordinate in
right of payment, to the extent and in the manner stated in the subordinated
debt indenture, to all of our senior indebtedness, including all debt securities
we have issued and will issue under the senior debt indenture.
Except as otherwise modified with respect to a particular issuance of debt
securities, the subordinated debt indenture defines "senior debt" as all
indebtedness and obligations of, or guaranteed or assumed by, ING Groep N.V. for
borrowed money or evidenced by bonds, debentures, notes or other similar
instruments, whether existing now or in the future, and all amendments,
renewals, extensions, modifications and refundings of any indebtedness or
obligations of that kind, all the foregoing not stated in the instrument which
created, incurred or guaranteed such indebtedness or obligation to be
subordinated. Senior debt excludes the subordinated debt securities and any
other indebtedness or obligations specifically designated as being subordinate,
or not superior, in right of payment to the subordinated debt securities.
The subordinated debt indenture provides that, unless all principal of, and
any premium or interest on, the senior indebtedness has been paid in full, no
payment or other distribution may be made in respect of any subordinated debt
securities in the following circumstances:
- in the event of any insolvency or bankruptcy proceedings, or any
receivership, liquidation, reorganization, assignment for creditors or
other similar proceedings or events involving us or our assets; or
13
- (a) in the event and during the continuation of any default in the
payment of principal, premium or interest on any senior indebtedness
beyond any applicable grace period or (b) in the event that any event of
default with respect to any senior indebtedness has occurred and is
continuing, permitting the holders of that senior indebtedness (or a
trustee) to accelerate the maturity of that senior indebtedness, whether
or not the maturity is in fact accelerated (unless, in the case of (a) or
(b), the payment default or event of default has been cured or waived or
ceased to exist and any related acceleration has been rescinded) or (c)
in the event that any judicial proceeding is pending with respect to a
payment default or event of default described in (a) or (b); or
- in the event that any subordinated debt securities have been declared due
and payable before their stated maturity.
If the trustee under the subordinated debt indenture or any holders of the
subordinated debt securities receive any payment or distribution that is
prohibited under the subordination provisions, then the trustee or the holders
will have to repay that money to the holders of the senior indebtedness.
Even if the subordination provisions prevent us from making any payment
when due on the subordinated debt securities of any series, we will be in
default on our obligations under that series if we do not make the payment when
due. This means that the trustee under the subordinated debt indenture, and the
holders of that series, can take action against us, but they will not receive
any money until the claims of the holders of senior indebtedness are fully
satisfied.
The subordinated debt indenture allows the holder of senior indebtedness to
obtain a court order requiring us and any holder of subordinated debt securities
to comply with the subordination provisions.
OUR RELATIONSHIP WITH THE TRUSTEE
The Bank of New York is initially serving as the trustee for the debt
securities and all other series of debt securities to be issued under each
indenture. The Bank of New York 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.
GOVERNING LAW
Each indenture and the debt securities will be governed by New York law,
unless otherwise specified in the applicable prospectus supplement.
WE MAY ISSUE MANY SERIES OF DEBT SECURITIES
We may issue as many distinct series of debt securities under either
indenture as we wish. This section summarizes terms of the securities that apply
generally to all series. The provisions of each indenture allow us not only to
issue debt securities with terms different from those of debt securities
previously issued under that indenture, but also to "reopen" a previous issue of
a series of debt securities and issue additional debt securities of that series.
Most of the financial and other specific terms of your series, whether it be a
series of the senior debt securities or subordinated debt securities, are
described in the prospectus supplement attached to the front of this prospectus.
Those terms may vary from the terms described here.
When we refer to a series of debt securities, we mean a series issued under
the applicable indenture. When we refer to your prospectus supplement, we mean
the prospectus supplement describing the specific terms of the debt security you
purchase. The terms used in your prospectus supplement will have the meanings
described in this prospectus, unless otherwise specified.
AMOUNTS THAT WE MAY ISSUE
Neither indenture limits the aggregate amount of debt securities that we
may issue or the number of series or the aggregate amount of any particular
series. We may issue debt securities in amounts that
14
exceed the total amount specified on the cover of this prospectus at any time
without your consent and without notifying you. Any debt securities owned by us
or any of our affiliates are not deemed to be outstanding.
Neither the indentures nor the debt securities limit our ability to incur
other indebtedness or to issue other securities. Also, we are not subject to
financial or similar restrictions by the terms of the debt securities.
PRINCIPAL AMOUNT, STATED MATURITY AND MATURITY
The principal amount of a debt security means the principal amount payable
at its stated maturity, if any, unless that amount is not determinable, in which
case the principal amount of a debt security is its face amount.
The term "stated maturity" with respect to any debt security means the day
on which the principal amount of your debt security is scheduled to become due.
The principal may become due sooner by reason of redemption or acceleration
after a default or otherwise in accordance with the terms of the debt security.
The day on which the principal actually becomes due, whether at the stated
maturity or earlier, is called the maturity of the principal. We may also issue
debt securities that do not have a stated maturity and are perpetual in nature.
We also use the terms "stated maturity" and "maturity" to refer to the days
when other payments become due. For example, we may refer to a regular interest
payment date when an installment of interest is scheduled to become due as the
"stated maturity" of that installment.
When we refer to the "stated maturity" or the "maturity" of a debt security
without specifying a particular payment, we mean the stated maturity or
maturity, as the case may be, of the principal.
CURRENCY OF DEBT SECURITIES
Amounts that become due and payable on your debt security in cash will be
payable in a currency, composite currency, basket of currencies or currency unit
or units specified in your prospectus supplement. We refer to this currency,
composite currency, basket of currencies or currency unit or units as a
"specified currency." The specified currency for your debt security will be U.S.
dollars, unless your prospectus supplement states otherwise. Some debt
securities may have different specified currencies for principal and interest.
You will have to pay for your debt securities by delivering the requisite amount
of the specified currency for the principal to ING Groep N.V. or another firm
that we name in your prospectus supplement, unless other arrangements have been
made between you and us or you and that firm. We will make payments on your debt
securities in the specified currency, except as described below in "-- Payment
Mechanics for Debt Securities in Registered Form." See "-- Considerations
Relating to Securities Linked to a Foreign Currency" below for more information
about risks of investing in debt securities of this kind.
DEBT SECURITIES NOT SECURED BY ASSETS
No series of debt securities will be secured by any property or assets of
ING Group.
TYPES OF DEBT SECURITIES
We may issue any of the following three types of senior debt securities or
subordinated debt securities:
FIXED RATE DEBT SECURITIES
A debt security of this type will bear interest at a fixed rate described
in the applicable prospectus supplement. This type includes zero coupon debt
securities, which bear no interest and are instead issued at a price lower than
the principal amount. See "-- Original Issue Discount Debt Securities" below for
more information about zero coupon and other original issue discount debt
securities.
15
Each fixed rate debt security, except any zero coupon debt security, will
bear interest from its original issue date or from the most recent date to which
interest on the debt security has been paid or made available for payment.
Interest will accrue on the principal of a fixed rate debt security at the fixed
yearly rate stated in the applicable prospectus supplement, until the principal
is paid or made available for payment. Each payment of interest due on an
interest payment date or the date of maturity will include interest accrued from
and including the last date to which interest has been paid, or made available
for payment, or from the issue date if none has been paid or made available for
payment to but excluding the interest payment date or the date of maturity. We
will compute interest on fixed rate debt securities on the basis of a 360-day
year of twelve 30-day months. We will pay interest on each interest payment date
and at maturity as described below under "-- Payment Mechanics for Debt
Securities in Registered Form."
FLOATING RATE DEBT SECURITIES
A debt security of this type will bear interest at rates that are
determined by reference to an interest rate formula. In some cases, the rates
may also be adjusted by adding or subtracting a spread or multiplying by a
spread multiplier and may be subject to a minimum rate or a maximum rate. If
your debt security is a floating rate debt security, the formula and any
adjustments that apply to the interest rate will be specified in your prospectus
supplement.
Each floating rate debt security will bear interest from its original issue
date or from the most recent date to which interest on the debt security has
been paid or made available for payment. Interest will accrue on the principal
of a floating rate debt security at the yearly rate determined according to the
interest rate formula stated in the applicable prospectus supplement, until the
principal is paid or made available for payment. We will pay interest on each
interest payment date and at maturity as described below under "-- Payment
Mechanics for Debt Securities in Registered Form."
CALCULATION OF INTEREST. Calculations relating to floating rate debt
securities will be made by the calculation agent, an institution that we appoint
as our agent for this purpose. The prospectus supplement for a particular
floating rate debt security will name the institution that we have appointed to
act as the calculation agent for that debt security as of its original issue
date. We may appoint a different institution to serve as calculation agent from
time to time after the original issue date of the debt security without your
consent and without notifying you of the change.
For each floating rate debt security, the calculation agent will determine,
on the corresponding interest calculation or determination date, as described in
the applicable prospectus supplement, the interest rate that takes effect on
each interest reset date. In addition, the calculation agent will calculate the
amount of interest that has accrued during each interest period -- i.e., the
period from and including the original issue date, or the last date to which
interest has been paid or made available for payment, to but excluding the
payment date. For each interest period, the calculation agent will calculate the
amount of accrued interest by multiplying the face or other specified amount of
the floating rate debt security by an accrued interest factor for the interest
period. This factor will equal the sum of the interest factors calculated for
each day during the interest period. The interest factor for each day will be
expressed as a decimal and will be calculated by dividing the interest rate,
also expressed as a decimal, applicable to that day by 360 or by the actual
number of days in the year, as specified in the applicable prospectus
supplement.
Upon the request of the holder of any floating rate debt security, the
calculation agent will provide for that debt security the interest rate then in
effect -- and, if determined, the interest rate that will become effective on
the next interest reset date. The calculation agent's determination of any
interest rate, and its calculation of the amount of interest for any interest
period, will be final and binding in the absence of manifest error.
All percentages resulting from any calculation relating to a debt security
will be rounded upward or downward, as appropriate, to the next higher or lower
one hundred-thousandth of a percentage point, e.g., 9.876541% (or 0.09876541)
being rounded down to 9.87654% (or 0.0987654) and 9.876545% (or 0.09876545)
being rounded up to 9.87655% (or .0987655). All amounts used in or resulting
from any calculation relating to a floating rate debt security will be rounded
upward or downward, as appropriate, to
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the nearest cent, in the case of U.S. dollars, or to the nearest corresponding
hundredth of a unit, in the case of a currency other than U.S. dollars, with
one-half cent or one-half of a corresponding hundredth of a unit or more being
rounded upward.
In determining the base rate that applies to a floating rate debt security
during a particular interest period, the calculation agent may obtain rate
quotes from various banks or dealers active in the relevant market, as described
in the applicable prospectus supplement. Those reference banks and dealers may
include the calculation agent itself and its affiliates, as well as any
underwriter, dealer or agent participating in the distribution of the relevant
floating rate debt securities and its affiliates, and they may include
affiliates of ING.
INDEXED DEBT SECURITIES
A debt security of this type provides that the principal amount payable at
its maturity, and/or the amount of interest payable on an interest payment date,
will be determined by reference to:
- securities of one or more issuers;
- one or more currencies;
- one or more commodities;
- any other financial, economic or other measure or instrument, including
the occurrence or non-occurrence of any event or circumstance; and/or
- one or more indices or baskets of the items described above.
If you are a holder of an indexed debt security, you may receive an amount
at maturity that is greater than or less than the face amount of your debt
security, depending upon the value of the applicable index at maturity. The
value of the applicable index will fluctuate over time.
An indexed debt security may provide either for cash settlement or for
physical settlement by delivery of the underlying property or another property
of the type listed above. An indexed debt security may also provide that the
form of settlement may be determined at our option or at the holder's option.
Some indexed debt securities may be exchangeable, at our option or the holder's
option, for securities of an issuer other than ING Groep N.V.
If you purchase an indexed debt security, your prospectus supplement will
include information about the relevant index, about how amounts that are to
become payable will be determined by reference to the price or value of that
index and about the terms on which the security may be settled physically or in
cash. Your prospectus supplement will also identify the calculation agent that
will calculate the amounts payable with respect to the indexed debt security and
may exercise significant discretion in doing so. See "-- Considerations Relating
to Indexed Securities" for more information about risks of investing in debt
securities of this type.
ORIGINAL ISSUE DISCOUNT DEBT SECURITIES
A fixed rate debt security, a floating rate debt security or an indexed
debt security may be an original issue discount debt security. A debt security
of this type is issued at a price lower than its principal amount and provides
that, upon redemption or acceleration of its maturity, an amount less than its
principal amount will be payable. An original issue discount debt security may
be a zero coupon debt security. A debt security issued at a discount to its
principal may, for U.S. federal income tax purposes, be considered an original
issue discount debt security, regardless of the amount payable upon redemption
or acceleration of maturity. See "Taxation -- Material Tax Consequences of
Owning Our Debt Securities -- United States Taxation -- United States
Holders -- Original Issue Discount" below for a description of the U.S. federal
income tax consequences of owning an original issue discount debt security.
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REDEMPTION AND REPAYMENT
Unless otherwise indicated in your prospectus supplement, your debt
security will not be entitled to the benefit of any sinking 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.
If your prospectus supplement specifies a redemption date or a repayment
date, it will also specify one or more redemption prices or repayment prices,
which will be expressed as a percentage of the principal amount of your debt
security. It may also specify one or more redemption periods during which the
redemption prices relating to a redemption of debt securities during those
periods will apply.
If your prospectus supplement specifies a redemption commencement date,
your debt security will be redeemable at our option at any time on or after that
date. If we redeem your debt security, we will do so at the specified redemption
price, together with interest accrued to the redemption date. If different
prices are specified for different redemption periods, the price we pay will be
the price that applies to the redemption period during which your debt security
is redeemed.
If your prospectus supplement specifies a repayment date, your debt
security will be repayable at your option on the specified repayment date at the
specified repayment price, together with interest accrued to the repayment date.
In the event that we exercise an option to redeem any debt security, we
will give to the trustee and the holder written notice of the principal amount
of the debt security to be redeemed, not less than 30 days nor more than 60 days
before the applicable redemption date. We will give the notice in the manner
described below in "Notices."
If a debt security represented by a global security is subject to repayment
at the holder's option, the depositary or its nominee, as the holder, will be
the only person who can exercise the right to repayment. Any indirect holders
who own beneficial interests in the global security and wish to exercise a
repayment right must give proper and timely instructions to their banks or
brokers through which they hold their interests, requesting that they notify the
depositary to exercise the repayment right on their behalf. Different firms have
different deadlines for accepting instructions from their customers, and you
should take care to act promptly enough to ensure that your request is given
effect by the depositary before the applicable deadline for exercise.
Street name and other indirect holders should contact their banks or brokers for
information about how to exercise a repayment right in a timely manner.
We or our affiliates may purchase debt securities from investors who are
willing to sell from time to time, either in the open market at prevailing
prices or in private transactions at negotiated prices. Debt securities that we
or they purchase may, at our discretion, be held, resold or canceled.
OPTIONAL TAX REDEMPTION
Unless otherwise indicated in your prospectus supplement, except in the
case of debt securities that have a variable rate of interest, which may only be
redeemed on an interest payment date, we may redeem each series of debt
securities at our option in whole, but not in part, at any time if:
- we would be required to pay additional amounts, as a result of any change
in the tax laws of The Netherlands or of a jurisdiction in which a
successor of ING Groep N.V. is organized which becomes effective on or
after the date of issuance of that series, as explained below under
"Payment of Additional Amounts With Respect to the Debt Securities"; or
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- as a result of any change in any treaty affecting taxation to which The
Netherlands, or a jurisdiction in which a successor to ING Groep N.V. is
organized, is a party, which becomes effective on or after a date on
which we issue the debt securities, we would be required to deduct or
withhold tax on any payment of principal, premium, if any, or interest.
In both of these cases, however, we will not be permitted to redeem a
series of debt securities if we can avoid either the payment of additional
amounts, or deductions or withholding, as the case may be, by using reasonable
measures available to us. Except in the case of outstanding original issue
discount debt securities which may be redeemed at the redemption price specified
by the terms of that series of debt securities, the redemption price will be
equal to the principal amount plus accrued interest to the date of redemption.
CONVERSION
Your debt securities may be convertible into or exchangeable for American
Depositary Receipts or other securities of ING Groep N.V. if your prospectus
supplement so provides. If your debt securities are convertible or exchangeable,
your prospectus supplement will include provisions as to whether conversion or
exchange is mandatory, at your option or at our option. Your prospectus
supplement would also include provisions regarding the adjustment of the number
of American Depositary Receipts or other securities of ING Groep N.V. to be
received by you upon conversion or exchange.
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 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 Groep N.V. 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.
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DEFEASANCE
DEFEASANCE AND COVENANT DEFEASANCE
Unless we say otherwise in your prospectus supplement, the provisions for
full defeasance and covenant defeasance described below apply to each series of
senior or subordinated debt securities. In general, we expect these provisions
to apply to each debt security that has a specified currency of U.S. dollars and
is not a floating rate or indexed debt security.
FULL DEFEASANCE. If there is a change in Netherlands or U.S. federal tax
law, as described below, we can legally release ourselves from all payments and
other obligations on your debt securities. This is called full defeasance. To do
so, each of the following must occur:
- we must deposit in trust for the benefit of all holders a combination of
money and U.S. government or U.S. government agency notes or bonds that
will generate enough cash to make interest, principal and any other
payments on your debt securities on their various due dates;
- there must be a change in current U.S. federal tax law or an Internal
Revenue Service ruling that lets us make the above deposit without
causing you to be taxed on your debt security any differently than if we
did not make the deposit and just repaid the debt security ourselves.
Under current federal tax law, the deposit and our legal release from the
debt security would be treated as though we took back your debt security
and gave you your share of the cash and debt security or bonds deposited
in trust. In that event, you could recognize gain or loss on your debt
security;
- we must deliver to the trustee a legal opinion of our counsel confirming
the tax law change or Internal Revenue Service ruling described above;
and
- in the case of the subordinated debt securities, the following
requirements must also be met:
- no event or condition may exist that, under the provisions described
above under "-- The Senior Debt Indenture and the Subordinated Debt
Indenture -- Subordination Provisions," would prevent us from making
payments of principal, premium or interest on those subordinated debt
securities on the date of the deposit referred to above or during the
90 days after that date; and
- we must deliver to the trustee an opinion of counsel to the effect
that (a) the trust funds will not be subject to any rights of holders
of senior indebtedness; and (b) after the 90-day period referred to
above, the trust funds will not be subject to any applicable
bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally, except that if a court were to rule under
any of those laws in any case or proceeding that the trust funds
remained our property, then the relevant trustee and the holders of
the subordinated debt securities would be entitled to some enumerated
rights as secured creditors in the trust funds.
If we ever fully defease your debt security, you will have to rely solely
on the trust deposit for payments on your debt security. You could not look to
us for payment in the event of any shortfall.
COVENANT DEFEASANCE. Under current U.S. federal tax law, we can make the
same type of deposit described above and be released from any restrictive
covenants relating to your debt security that may be described in your
prospectus supplement. This is called covenant defeasance. In that event, you
would lose the protection of those restrictive covenants. In order to achieve
covenant defeasance, we must do both of the following:
- we must deposit in trust for the benefit of the holders a combination of
money and U.S. government or U.S. government agency notes or bonds that
will generate enough cash to make interest, principal and other payments
on your debt security on their various due dates; and
- we must deliver to the trustee a legal opinion of our counsel confirming
that under then-current U.S. federal income tax law we may make the above
deposit without causing you to be taxed on
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your debt security any differently than if we did not make the deposit
and just repaid the debt security ourselves.
In addition, in order to achieve covenant defeasance for any subordinated
debt securities that have the benefit of any restrictive covenants, the
conditions described in the last two bullet points under "-- Full Defeasance"
above must be satisfied. Subordinated debt securities will not have the benefit
of any restrictive covenants unless the applicable prospectus supplement
specifically provides that they do.
If we accomplish covenant defeasance with regard to your debt security, the
following provisions of the indenture and the debt securities would no longer
apply:
- any additional covenants that your prospectus supplement may state are
applicable to your debt security; and
- the events of default resulting from a breach of covenants, described
below in the fourth item under "-- Default, Remedies and Waiver of
Default -- Events of Default."
If we accomplish covenant defeasance, you can still look to us for
repayment of your debt security in the event of any shortfall in the trust
deposit. You should note, however, that if one of the remaining events of
default occurs, like our bankruptcy, and your debt security becomes immediately
due and payable, there may be a shortfall. Depending on the event causing the
default, you may not be able to obtain payment of the shortfall.
DEFAULT, REMEDIES AND WAIVER OF DEFAULT
You will have special rights if an event of default with respect to your
debt security occurs and is not cured, as described in this subsection.
EVENTS OF DEFAULT --
Unless otherwise indicated in your prospectus supplement, with respect to
any series of debt securities, when we refer to an event of default, we mean any
of the following:
- we do not pay interest on any debt security of that series within 30 days
of its due date;
- we do not pay the principal of, or any premium on, any debt security of
that series on its due date;
- we remain in breach of any covenant we make in the applicable indenture
for 60 days after we receive a notice of default stating we are in
breach. The notice must be sent by either the trustee or holders of 25%
of the principal amount of debt security of the affected series;
- we file for bankruptcy or other events of bankruptcy, insolvency or
reorganization relating to ING Groep N.V. occur. Those events must arise
under U.S. federal or state law or Dutch law unless we merge, consolidate
or sell our assets as described above and the successor firm is a
non-U.S. entity. If that happens, then those events must arise under U.S.
federal or state law or the law of the jurisdiction in which the
successor firm is legally organized;
- we do not deposit a sinking fund payment with regard to any debt security
of that series on the due date, but only if the payment is required under
provisions described in the applicable prospectus supplement; or
- any other event of default described in the prospectus supplement occurs.
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REMEDIES IF AN EVENT OF DEFAULT OCCURS
If you are the holder of a subordinated debt security, all the remedies
available upon the occurrence of an event of default under the subordinated debt
indenture will be subject to the restrictions on the subordinated debt
securities described above under "-- The Senior Debt Indenture and the
Subordinated Debt Indenture -- Subordination Provisions."
Except as specified in your prospectus supplement, if an event of default
has occurred and has not been cured or waived, the trustee or the holders of 25%
or more in principal amount of all debt securities of the affected series may
declare the entire principal amount of all such debt securities to be due
immediately. Except as specified in your prospectus supplement, if an event of
default occurs because of events in bankruptcy, insolvency or reorganization
relating to ING Groep N.V., the entire principal amount of all the debt
securities will be automatically accelerated, without any action by the trustee
or any holder.
Each of the situations described above is called an acceleration of the
maturity of the affected debt securities. If the maturity of any debt securities
is accelerated and a judgment for payment has not yet been obtained, the holders
of a majority in principal amount of the debt securities affected by the
acceleration may cancel the acceleration for all the affected debt securities.
If an event of default occurs, the trustee will have special duties. In
that situation, the trustee will be obligated to use its rights and powers under
the applicable indenture, and in doing so, to use the same degree of care and
skill that a prudent person would use in that situation in conducting his or her
own affairs.
Except as described in the prior paragraph, the trustee is not required to
take any action under the applicable indenture at the request of any holders
unless the holders offer the trustee reasonable protection from expenses and
liability. This is called an indemnity. If the trustee is provided with an
indemnity reasonably satisfactory to it, the holders of a majority in principal
amount of the relevant series of debt securities may direct, from time to time,
the method and place of conducting any lawsuit or other formal legal action
seeking any remedy available to the trustee. These majority holders may also
direct the trustee in performing any other action under the applicable indenture
with respect to the relevant series of debt securities.
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, the following must occur:
- the holder of your debt security must give the trustee written notice
that an event of default has occurred, and the event of default must not
have been cured or waived;
- the holders of 25% or more in principal amount of all of the relevant
debt securities must make a written request that the trustee take action
because of the default, and they or other holders must offer to the
trustee indemnity reasonably satisfactory to the trustee against the cost
and other liabilities of taking that action;
- the trustee must not have taken action for 60 days after the above steps
have been taken; and
- during those 60 days, the holders of a majority in principal amount of
the related series of debt securities must not have given the trustee
directions that are inconsistent with the written request of the holders
of not less than 25% in principal amount of all the relevant series of
debt securities.
You are, however, entitled at any time to bring a lawsuit for the payment
of money due on your debt securities on or about its due date.
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WAIVER OF DEFAULT
The holders of not less than a majority in principal amount of the debt
securities of any series may waive a default for all debt securities of that
series. If this happens, the default will be treated as if it has not occurred.
No one can waive a payment default on your debt security, however, without your
approval.
WE WILL GIVE THE TRUSTEE INFORMATION ABOUT DEFAULTS ANNUALLY
We will furnish to the trustee every year a written statement of two of our
officers certifying that to their knowledge we are in compliance with the debt
securities and the indenture they are issued under, or else specifying any
default.
Book-entry and other indirect holders should consult their banks or brokers for
information on how to give notice or direction to or make a request of the
trustee and how to declare a cancellation of an acceleration.
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 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.
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
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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.
Book-entry and other indirect holders 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.
SPECIAL RULES FOR ACTION BY HOLDERS
When holders take any action under either indenture, such as giving a
notice of default, declaring an acceleration, approving any change or waiver or
giving the trustee an instruction, we will apply the following rules.
ONLY OUTSTANDING DEBT SECURITIES ARE ELIGIBLE
Only holders of outstanding debt securities of the applicable series will
be eligible to participate in any action by holders of debt securities of that
series. Also, we will count only outstanding debt securities of that series in
determining whether the various percentage requirements for taking action have
been met. For these purposes, a debt security will not be "outstanding":
- if it has been surrendered for cancellation;
- if we have deposited or set aside, in trust for its holder, money for its
payment or redemption;
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- if we have fully defeased it as described above under
"Defeasance-- Defeasance and Covenant Defeasance -- Full Defeasance"; or
- if we or one or our affiliates is the owner.
ELIGIBLE PRINCIPAL AMOUNT OF SOME DEBT SECURITIES
In some situations, we may follow special rules in calculating the
principal amount of a debt security that is to be treated as outstanding for the
purposes described above. This may happen, for example, if the principal amount
is payable in a non-U.S. dollar currency, increases over time or is not to be
fixed until maturity.
For any debt security of the kind described below, we will decide how much
principal amount to attribute to the debt security as follows:
- for an original issue discount debt security, we will use the principal
amount that would be due and payable on the action date if the maturity of
the debt security were accelerated to that date because of a default;
- for a debt security whose principal amount is not known, we will use any
amount that we indicate in the prospectus supplement for that debt security.
The principal amount of a debt security may not be known, for example,
because it is based on an index that changes from time to time and the
principal amount is not to be determined until a later date; or
- for debt securities with a principal amount denominated in one or more
non-U.S. dollar currencies or currency units, we will use the U.S. dollar
equivalent, which we will determine.
DETERMINING RECORD DATES FOR ACTION BY HOLDERS
We will generally be entitled to set any day as a record date for the
purpose of determining the holders that are entitled to take action under either
indenture. In certain limited circumstances, only the trustee will be entitled
to set a record date for action by the holders. If we or the trustee set a
record date for an approval or other action to be taken by the holders, that
vote or action may be taken only by persons or entities who are holders on the
record date and must be taken during the period that we specify for this
purpose, or that the trustee specifies if it sets the record date. We or the
trustee, as applicable, may shorten or lengthen this period from time to time.
This period, however, may not extend beyond the 180th day after the record date
for the action. In addition, record dates for any global debt security may be
set in accordance with procedures established by the depositary from time to
time. Accordingly, record dates for global debt securities may differ from those
for other debt securities.
FORM, EXCHANGE AND TRANSFER OF DEBT SECURITIES
FORM
We will issue each debt security in global -- i.e., book-entry -- form
only, unless we specify otherwise in the applicable prospectus supplement. Debt
securities in book-entry form will be represented by a global security
registered in the name of a depositary, which will be the holder of all the debt
securities represented by the global security. Those who own beneficial
interests in a global debt security will do so through participants in the
depositary's securities clearance system, and the rights of these indirect
owners will be governed solely by the applicable procedures of the depositary
and its participants. We describe book-entry securities below under "Legal
Ownership and Book-Entry Issuance."
In addition, we will generally issue each debt security in registered form,
without coupons, unless we specify otherwise in the applicable prospectus
supplement. If we issue a debt security in bearer form, the provisions described
below under "Considerations Relating to Securities Issued in Bearer Form" would
apply to that security. As we note in that section, some of the features of the
debt securities that we describe in this prospectus may not apply to bearer debt
securities.
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If any debt securities cease to be issued in registered global form, they
will be issued:
- only in fully registered form;
- without interest coupons; and
- unless we indicate otherwise in your prospectus supplement, in
denominations of $1,000 and multiples of $1,000.
TRANSFER AND EXCHANGE
Holders may exchange their debt securities for debt securities of smaller
denominations or combined into fewer debt securities of larger denominations, as
long as the total principal amount is not changed.
Holders may exchange or transfer their debt securities at the office of the
trustee. They may also replace lost, stolen, destroyed or mutilated debt
securities at that office. We have appointed the trustee to act as our agent for
registering debt securities in the names of holders and transferring and
replacing debt securities. We may appoint another entity to perform these
functions or perform them ourselves.
Holders will not be required to pay a service charge to transfer or
exchange their debt securities, but they may be required to pay for any tax or
other governmental charge associated with the exchange or transfer. The transfer
or exchange, and any replacement, will be made only if our transfer agent is
satisfied with the holder's proof of legal ownership. The transfer agent may
require an indemnity before replacing any debt securities.
If we have designated additional transfer agents for your debt security,
they will be named in your prospectus supplement. We may appoint additional
transfer agents or cancel the appointment of any particular transfer agent. We
may also approve a change in the office through which any transfer agent acts.
If the debt securities of any series are redeemable and we redeem less than
all those debt securities, we may block the transfer or exchange of those debt
securities during the period beginning 15 days before the day we mail the notice
of redemption and ending on the day of that mailing, in order to freeze the list
of holders to prepare the mailing. We may also refuse to register transfers of
or exchange any debt security selected for redemption, except that we will
continue to permit transfers and exchanges of the unredeemed portion of any debt
security being partially redeemed.
If a debt security is issued as a global debt security, only the
depositary, e.g., the Depository Trust Company, which we refer to as DTC,
Euroclear Bank, which we refer to as Euroclear or Clearstream Banking, societe
anonyme, Luxembourg, which we refer to as Clearstream, Luxembourg, will be
entitled to transfer and exchange the debt security as described in this
subsection, since the depositary will be the sole holder of the debt security.
The rules for exchange described above apply to exchanges of debt
securities for other debt securities of the same series and kind. If a debt
security is exchangeable for a different kind of security, such as one that we
have not issued, or for other property, the rules governing that type of
exchange will be described in the applicable prospectus supplement.
PAYMENT MECHANICS FOR DEBT SECURITIES IN REGISTERED FORM
WHO RECEIVES PAYMENT?
If interest is due on a debt security on an interest payment date, we will
pay the interest to the person or entity in whose name the debt security is
registered at the close of business on the regular record date relating to the
interest payment date as described below under "-- Payment and Record Dates for
Interest." If interest is due at maturity but on a day that is not an interest
payment date, we will pay the interest to the person or entity entitled to
receive the principal of the debt security. If the principal or another amount
besides interest is due on a debt security at maturity, we will pay the amount
to the holder of the debt security against surrender of the debt security at a
proper place of payment, or, in the case of a global security, in accordance
with the applicable policies of the depositary DTC, Euroclear and Clearstream,
Luxembourg, as applicable.
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PAYMENT AND RECORD DATES FOR INTEREST
Unless we specify otherwise in the applicable prospectus supplement,
interest on any fixed rate debt security will be payable semiannually each May
15 and November 15 and at maturity, and the regular record date relating to an
interest payment date for any fixed rate debt security will be the May 1 or
November 1 next preceding that interest payment date. The regular record date
relating to an interest payment date for any floating rate debt security will be
the 15th calendar day before that interest payment date. These record dates will
apply regardless of whether a particular record date is a "business day," as
defined below. For the purpose of determining the holder at the close of
business on a regular record date when business is not being conducted, the
close of business will mean 5:00 P.M., New York City time, on that day.
BUSINESS DAY
The term "business day" means, for any debt security, a day that meets all
the following applicable requirements:
- for all debt securities, it is a Monday, Tuesday, Wednesday, Thursday or
Friday that is not a day on which banking institutions in The Netherlands
or New York City generally are authorized or obligated by law, regulation
or executive order to close;
- if the debt security is a floating rate debt security whose interest rate
is based on LIBOR, it is also a day on which dealings in the relevant
index currency specified in the applicable prospectus supplement are
transacted in the London interbank market;
- if the debt security has a specified currency other than U.S. dollars or
euro, it is also a day on which banking institutions are not authorized
or obligated by law, regulation or executive order to close in the
principal financial center of the country issuing the specified currency;
- if the debt security either is a floating rate debt security whose
interest rate is based on EURIBOR or has a specified currency of euro, it
is also a day on which the Trans-European Automated Real-Time Gross
Settlement Express Transfer (TARGET) System, or any successor system, is
open for business;
- if the debt security is held through Euroclear, it is also not a day on
which banking institutions in Brussels, Belgium are generally authorized
or obligated by law, regulation or executive order to close; and
- if the debt security is held through Clearstream, Luxembourg, it is also
not a day on which banking institutions in Luxembourg are generally
authorized or obligated by law, regulation or executive order to close.
HOW WE WILL MAKE PAYMENTS DUE IN U.S. DOLLARS
We will follow the practice described in this subsection when paying
amounts due in U.S. dollars. Payments of amounts due in other currencies will be
made as described in the next subsection.
PAYMENTS ON GLOBAL DEBT SECURITIES. We will make payments on a global
security in accordance with the applicable policies of the depositary as in
effect from time to time. Under those policies, we will pay directly to the
depositary, or its nominee, and not to any indirect holders who own beneficial
interests in the global security. An indirect holder's right to those payments
will be governed by the rules and practices of the depositary and its
participants, as described under "Legal Ownership and Book-Entry
Issuance -- What Is a Global Security?"
PAYMENTS ON NON-GLOBAL SECURITIES. Unless otherwise specified in the
applicable prospectus supplement, we will make payments on a debt security in
non-global form as follows. We will pay interest that is due on an interest
payment date by check mailed on the interest payment date to the holder at his
or her address shown on the trustee's records as of the close of business on the
record date. We will make
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all other payments by check to the paying agent described below, against
surrender of the debt security. All payments by check will be made in next-day
funds, i.e., funds that become available on the day after the check is cashed.
Alternatively, if a non-global security has a face amount of at least
$1,000,000 and the holder asks us to do so, we will pay any amount that becomes
due on the debt security by wire transfer of immediately available funds to an
account at a bank in New York City, on the due date. To request wire payment,
the holder must give the paying agent appropriate transfer instructions at least
five business days before the requested wire payment is due. In the case of any
interest payment due on an interest payment date, the instructions must be given
by the person who is the holder on the relevant regular record date. In the case
of any other payment, payment will be made only after the debt security is
surrendered to the paying agent. Any wire instructions, once properly given,
will remain in effect unless and until new instructions are given in the manner
above.
Book-entry and other indirect holders should consult their banks or brokers for
information on how they will receive payments on their debt securities.
HOW WE WILL MAKE PAYMENTS DUE IN OTHER CURRENCIES
We will follow the practice described in this subsection for payment
amounts that are due in a specified currency other than U.S. dollars.
PAYMENTS ON GLOBAL DEBT SECURITIES. We will make payments on a global
security in accordance with the applicable policies as in effect from time to
time of the depositary, which will be DTC, Euroclear or Clearstream, Luxembourg.
Unless we specify otherwise in the applicable prospectus supplement, The
Depository Trust Company, New York, New York, known as DTC, will be the
depositary for all debt securities in global form. We understand that these
policies, as currently in effect at DTC, are as follows:
Unless otherwise indicated in your prospectus supplement, if you are an
indirect holder of global notes denominated in a specified currency other than
U.S. dollars and if you have the right to elect to receive payments in that
other currency and do so elect, you must notify the participant through which
your interest in the global security is held of your election:
- on or before the applicable regular record date, in the case of a payment
of interest; or
- on or before the 16th day prior to stated maturity, if any, or any
redemption or repayment date, in the case of payment of principal or any
premium.
You may elect to receive all or only a portion of any interest, principal
or premium payment in a specified currency other than U.S. dollars.
Your participant must, in turn, notify DTC of your election on or before
the third DTC business day after that regular record date, in the case of a
payment of interest, and on or before the 12th DTC business day prior to stated
maturity, if any, or on the redemption or repayment date if your debt security
is redeemed or repaid earlier, in the case of a payment of principal or any
premium.
DTC, in turn, will notify the paying agent of your election in accordance
with DTC's procedures.
If complete instructions are received by the participant and forwarded by
the participant to DTC, and by DTC to the paying agent, on or before the dates
noted above, the paying agent, in accordance with DTC's instructions, will make
the payments to you or your participant by wire transfer of immediately
available funds to an account maintained by the payee with a bank located in the
country issuing the specified currency or in another jurisdiction acceptable to
us and the paying agent.
If the foregoing steps are not properly completed, we expect DTC to inform
the paying agent that payment is to be made in U.S. dollars. In that case, we or
our agent will convert the payment to U.S.
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dollars in the manner described below under "-- Conversion to U.S. Dollars." We
expect that we, or our agent, will then make the payment in U.S. dollars to DTC,
and that DTC in turn will pass it along to its participants.
Indirect holders of a global security denominated in a currency other than U.S.
dollars should consult their banks or brokers for information on how to request
payment in the specified currency.
PAYMENTS ON NON-GLOBAL DEBT SECURITIES. Except as described in the last
paragraph under this heading, we will make payments on debt securities in
non-global form in the applicable specified currency. We will make these
payments by wire transfer of immediately available funds to any account that is
maintained in the applicable specified currency at a bank designated by the
holder and acceptable to us and the trustee. To designate an account for wire
payment, the holder must give the paying agent appropriate wire instructions at
least five business days before the requested wire payment is due. In the case
of any interest payment due on an interest payment date, the instructions must
be given by the person or entity who is the holder on the regular record date.
In the case of any other payment, the payment will be made only after the debt
security is surrendered to the paying agent. Any instructions, once properly
given, will remain in effect unless and until new instructions are properly
given in the manner described above.
If a holder fails to give instructions as described above, we will notify
the holder at the address in the trustee's records and will make the payment
within five business days after the holder provides appropriate instructions.
Any late payment made in these circumstances will be treated under the indenture
as if made on the due date, and no interest will accrue on the late payment from
the due date to the date paid.
Although a payment on a debt security in non-global form may be due in a
specified currency other than U.S. dollars, we will make the payment in U.S.
dollars if the holder asks us to do so. To request U.S. dollar payment, the
holder must provide appropriate written notice to the trustee at least five
business days before the next due date for which payment in U.S. dollars is
requested. In the case of any interest payment due on an interest date, the
request must be made by the person or entity who is the holder on the regular
record date. Any request, once properly made, will remain in effect unless and
until revoked by notice properly given in the manner described above.
Book-entry and other indirect holders of a debt security with a specified
currency other than U.S. dollars should contact their banks or brokers for
information about how to receive payments in the specified currency or in U.S.
dollars.
CONVERSION TO U.S. DOLLARS. When we are asked by a holder to make payments
in U.S. dollars of an amount due in another currency, either on a global
security or a non-global security as described above, the exchange rate agent
described below will calculate the U.S. dollar amount you receive in the
exchange agent's discretion.
WHEN THE SPECIFIED CURRENCY IS NOT AVAILABLE. If we are obligated to make
any payment in a specified currency other than U.S. dollars, and the specified
currency is not available to us due to circumstances beyond our control -- which
may include the imposition of exchange controls or a disruption in the currency
markets -- we will be entitled to satisfy our obligation to make the payment in
that specified currency by making the payment in U.S. dollars, on the basis of
the exchange rate determined by the exchange rate agent described below in its
discretion.
The foregoing will apply to any debt security, whether in global or
non-global form, and to any payment, including a payment at maturity. Any
payment made under the circumstances and in the manner described above will not
result in a default under any debt security or the applicable indenture.
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THE EURO. The euro may be a specified currency for some debt securities.
On January 1, 1999, the euro became the legal currency for the 11 member states
participating in the European Economic and Monetary Union. In addition, as of
January 1, 2001, Greece also adopted the euro as its official currency.
EXCHANGE RATE AGENT. If we issue a debt security in a specified currency
other than U.S. dollars, we will appoint a financial institution to act as the
exchange rate agent and will name the institution initially appointed when the
debt security is originally issued in the applicable prospectus supplement. We
may select ING Barings or another affiliate to perform this role. We may change
the exchange rate agent from time to time after the original issue date of the
debt security without your consent and without notifying you of the change.
All determinations made by the exchange rate agent will be at its sole
discretion unless we state in the applicable prospectus supplement that any
determination is subject to our approval. In the absence of manifest error,
those determinations will be conclusive for all purposes and binding on you and
us, without any liability on the part of the exchange rate agent.
PAYMENT WHEN OFFICES ARE CLOSED
If any payment is due on a debt security on a day that is not a business
day, unless we specify otherwise in the applicable prospectus supplement, we
will make the payment on the next day that is a business day unless such
business day would fall in the next calendar year. Payments postponed to the
next business day in this situation will be treated under the indenture as if
they were made on the original due date. A postponement of this kind will not
result in a default under any debt security or the applicable indenture, and no
interest will accrue on the postponed amount from the original due date to the
next day that is a business day. The term business day has a special meaning,
which we describe above under "-- Business Day."
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.
UNCLAIMED PAYMENTS
Regardless of who acts as paying agent, all money paid by us to a paying
agent that remains unclaimed at the end of two years after the amount is due to
a holder will be repaid to us. After that two-year period, the holder may look
only to us for payment and not to the trustee, any other paying agent or anyone
else.
PAYMENT OF ADDITIONAL AMOUNTS WITH RESPECT TO THE DEBT SECURITIES
Unless otherwise indicated in your prospectus supplement, all amounts of
principal of, and any premium and interest on, any debt securities will be paid
by ING Groep N.V. without deduction or withholding for any taxes, assessments or
other charges imposed by the government of The Netherlands, or the government of
a jurisdiction in which a successor to ING Groep N.V. is organized. If deduction
or withholding of any of these charges is required by The Netherlands, or by a
jurisdiction in which a successor to ING Groep N.V. is organized, ING Groep N.V.
will pay as additional interest any additional amounts necessary to make the net
amount paid to the affected holders equal the amount the holders would have
received in the absence of the deduction or withholding. However, these
"additional amounts" do not include:
- the amount of any tax, assessment or other governmental charge imposed by
any unit of the United States;
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- the amount of any tax, assessment or other governmental charge which is
only payable because either:
- a type of connection exists between the holder and The Netherlands
(or such jurisdiction in which a successor to ING Group is
organized); or
- the holder presented the debt security for payment more than 30
days after the date on which the relevant payment became due or
was provided for, whichever is later;
- the amount of any estate, inheritance, gift, sales, transfer or personal
property tax or any similar tax, duty, assessment or governmental charge;
- the amount of any tax, assessment or other governmental charge which is
payable other than by deduction or withholding from a payment on the debt
securities;
- the amount of any tax, assessment or other governmental charge that is
imposed or withheld due to the beneficial owner of the debt security
failing to comply with a request from us to either provide information
concerning the beneficial owner's nationality, residence or identity or
make any claim to satisfy any information or reporting requirement, if
the completion of either would have provided an exemption from the
applicable governmental charge;
- any combination of the taxes, assessments or other governmental charges
described above; or
- the amount of any tax imposed on a payment to an individual and is
required to be made pursuant to any European Union Directive on the
taxation of savings implementing the conclusions of the ECOFIN Council
meeting of November 26-27, 2000 or any law implementing or complying
with, or introduced in order to conform to, such Directive or law.
In addition, we will not pay "additional amounts" to a holder that is a
fiduciary or partnership or an entity that is not the sole beneficial owner of
the payment and the law requires the payment to be included in the income of a
beneficiary or settlor for tax purposes with respect to such fiduciary or a
member of such partnership or a beneficial owner who would not have been
entitled to such "additional amounts" had it been the holder.
The prospectus supplement will describe any additional circumstances under
which additional amounts will not be paid with respect to debt securities.
NOTICES
Notices to be given to holders of a global debt security will be given only
to the depositary, in accordance with its applicable policies as in effect from
time to time. Notices to be given to holders of debt securities not in global
form will be sent by mail to the respective addresses of the holders as they
appear in the trustee's records, and will be deemed given when mailed. Neither
the failure to give any notice to a particular holder, nor any defect in a
notice given to a particular holder, will affect the sufficiency of any notice
given to another holder.
Book-entry and other indirect holders should consult their banks or brokers for
information on how they will receive notices.
SERVICE OF PROCESS
We have appointed Corporation Service Company, acting through its office at
80 State Street, Sixth Floor, Albany, New York, as our authorized agent for
service of process in any legal action or proceeding to which it is a party
relating to either indenture or any debt securities brought in any federal or
state court in New York City and have submitted to the non-exclusive
jurisdiction of those courts.
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CONSIDERATIONS RELATING TO OUR DEBT SECURITIES
CONSIDERATIONS RELATING TO INDEXED SECURITIES
We use the term "indexed securities" to mean debt securities whose value is
determined by reference to the price or value of one or more securities of one
or more issuers, currencies, commodities, any other financial, economic or other
measure or instrument, including the occurrence or non-occurrence of any event
or circumstance, and/or one or more indices or baskets of any of these items. We
refer to each of these as an "index." Indexed securities may present a high
level of risk, and investors in certain indexed securities may lose their entire
investment. In addition, the treatment of indexed securities for U.S. federal
income tax purposes is often unclear due to the absence of any authority
specifically addressing the issues presented by any particular indexed security.
Thus, if you propose to invest in indexed securities, you should independently
evaluate the federal income tax consequences of purchasing an indexed security
that apply in your particular circumstances. You should also read the applicable
prospectus supplement for a discussion of U.S. tax matters.
INVESTORS IN INDEXED SECURITIES COULD LOSE PRINCIPAL OR INTEREST
The principal amount of an indexed debt security payable at maturity,
and/or the amount of interest payable on an indexed debt security on an interest
payment date, will be determined by reference to the price or value of one or
more indexes. The direction and magnitude of the change in the value of the
relevant index will determine the principal amount of an indexed debt security
payable at maturity and/or the amount of interest payable on an indexed debt
security on an interest payment date. The terms of a particular indexed debt
security may or may not include a guaranteed return of a percentage of the face
amount at maturity or a minimum interest rate. Thus, if you purchase an indexed
security, you may lose all or a portion of the principal you invest and may
receive no interest on your investment.
THE ISSUER OF A SECURITY OR CURRENCY THAT SERVES AS AN INDEX COULD TAKE
ACTIONS THAT MAY ADVERSELY AFFECT AN INDEXED SECURITY
The issuer of a security that serves as an index or part of an index for an
indexed debt security will have no involvement in the offer and sale of the
indexed security and no obligations to the holder of the indexed security. The
issuer may take actions, such as a merger or sale of assets, without regard to
the interests of the holder. Any of these actions could adversely affect the
value of a debt security indexed to that security or to an index of which that
security is a component.
If the index for an indexed security includes a non-dollar currency or
other asset denominated in a non-dollar currency, the government that issues
that currency will also have no involvement in the offer and sale of the indexed
security and no obligations to the holder of the indexed security. That
government may take actions that could adversely affect the value of the
security. See "-- Considerations Relating to Securities Linked to a Foreign
Currency -- Government Policy Can Adversely Affect Currency Exchange Rates and
an Investment in a Non-Dollar Security" for more information about these kinds
of government actions.
AN INDEXED SECURITY MAY BE LINKED TO A VOLATILE INDEX, WHICH COULD HURT
YOUR INVESTMENT
Some indices are highly volatile, which means that their value may change
significantly, up or down, over a short period of time. The amount of principal
or interest that can be expected to become payable on an indexed security may
vary substantially from time to time. Because the amounts payable with respect
to an indexed security are generally calculated based on the value of the
relevant index on a specified date or over a limited period of time, volatility
in the index increases the risk that the return on the indexed security may be
adversely affected by a fluctuation in the level of the relevant index.
The volatility of an index may be affected by political or economic events,
including governmental actions, or by the activities of participants in the
relevant markets. Any of these events or activities could adversely affect the
value of an indexed security.
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AN INDEX TO WHICH A SECURITY IS LINKED COULD BE CHANGED OR BECOME
UNAVAILABLE
Some indices compiled by us or our affiliates or third parties may consist
of or refer to several or many different securities, commodities or currencies
or other instruments or measures. The compiler of such an index typically
reserves the right to alter the composition of the index and the manner in which
the value of the index is calculated. An alteration may result in a decrease in
the value of or return on an indexed security that is linked to the index. The
indices for our indexed securities may include published indices of this kind or
customized indices developed by us or our affiliates in connection with
particular issues of indexed securities.
A published index may become unavailable, or a customized index may become
impossible to calculate in the normal manner, due to events such as war, natural
disasters, cessation of publication of the index or a suspension or disruption
of trading in one or more securities, commodities or currencies or other
instruments or measures on which the index is based. If an index becomes
unavailable or impossible to calculate in the normal manner, the terms of a
particular indexed security may allow us to delay determining the amount payable
as principal or interest on an indexed debt security, or we may use an
alternative method to determine the value of the unavailable index. Alternative
methods of valuation are generally intended to produce a value similar to the
value resulting from reference to the relevant index. However, it is unlikely
that any alternative method of valuation we use will produce a value identical
to the value that the actual index would produce. If we use an alternative
method of valuation for a debt security linked to an index of this kind, the
value of the security, or the rate of return on it, may be lower than it
otherwise would be.
Some indexed securities are linked to indices that are not commonly used or
that have been developed only recently. The lack of a trading history may make
it difficult to anticipate the volatility or other risks associated with an
indexed security of this kind. In addition, trading in these indices or their
underlying stocks, commodities or currencies or other instruments or measures,
or options or futures contracts on these stocks, commodities or currencies or
other instruments or measures, may be limited, which could increase their
volatility and decrease the value of the related indexed securities or the rates
of return on them.
INFORMATION ABOUT INDICES MAY NOT BE INDICATIVE OF FUTURE PERFORMANCE
If we issue an indexed security, we may include historical information
about the relevant index in the applicable prospectus supplement. Any
information about indices that we may provide will be furnished as a matter of
information only, and you should not regard the information as indicative of the
range of, or trends in, fluctuations in the relevant index that may occur in the
future.
CONSIDERATIONS RELATING TO SECURITIES LINKED TO A FOREIGN CURRENCY
If you intend to invest in a debt security whose principal and/or interest
is payable in a currency other than U.S. dollars, you should consult your own
financial and legal advisors as to the currency risks entailed by your
investment. Securities of this kind are not an appropriate investment for
investors who are unsophisticated with respect to foreign currency transactions.
The information in this prospectus is directed primarily to investors who
are U.S. residents. Investors who are not U.S. residents should consult their
own financial and legal advisors about currency-related risks particular to
their investment.
AN INVESTMENT IN A NON-DOLLAR SECURITY INVOLVES CURRENCY-RELATED RISKS
An investment in a debt security with a specified currency other than U.S.
dollars entails significant risks that are not associated with a similar
investment in a security payable solely in U.S. dollars. These risks include the
possibility of significant changes in rates of exchange between the U.S. dollar
and the various non-dollar currencies or composite currencies and the
possibility of the imposition or modification of foreign exchange controls or
other conditions by either the U.S. or non-U.S. governments. These risks
33
generally depend on factors over which we have no control, such as economic and
political events and the supply of and demand for the relevant currencies in the
global markets.
CHANGES IN CURRENCY EXCHANGE RATES CAN BE VOLATILE AND UNPREDICTABLE
Rates of exchange between the U.S. dollar and many other currencies have
been highly volatile, and this volatility may continue and perhaps spread to
other currencies in the future. Fluctuations in currency exchange rates could
adversely affect an investment in a security denominated in a specified currency
other than U.S. dollars. Depreciation of the specified currency against the U.S.
dollar could result in a decrease in the U.S. dollar-equivalent value of
payments on the security, including the principal payable at maturity or
settlement value payable upon exercise. That in turn could cause the market
value of the security to fall. Depreciation of the specified currency against
the U.S. dollar could result in a loss to the investor on a U.S. dollar basis.
GOVERNMENT POLICY CAN ADVERSELY AFFECT CURRENCY EXCHANGE RATES AND AN
INVESTMENT IN A NON-DOLLAR SECURITY
Currency exchange rates can either float or be fixed by sovereign
governments. From time to time, governments use a variety of techniques, such as
intervention by a country's central bank or imposition of regulatory controls or
taxes, to affect the exchange rate of their currencies. Governments may also
issue a new currency to replace an existing currency or alter the exchange rate
or exchange characteristics by devaluation or revaluation of a currency. Thus, a
special risk in purchasing non-U.S. dollar-denominated securities is that their
U.S. dollar-equivalent yields or payouts could be significantly and
unpredictably affected by governmental actions. Even in the absence of
governmental action directly affecting currency exchange rates, political or
economic developments in the country issuing the specified currency for a non-
dollar security or elsewhere could lead to significant and sudden changes in the
exchange rate between the dollar and the specified currency. These changes could
affect the U.S. dollar-equivalent value of the security as participants in the
global currency markets move to buy or sell the specified currency or U.S.
dollars in reaction to these developments.
Governments have imposed from time to time and may in the future impose
exchange controls or other conditions with respect to the exchange or transfer
of a specified currency that could affect exchange rates as well as the
availability of a specified currency for a security at its maturity or on any
other payment date. In addition, the ability of a holder to move currency freely
out of the country in which payment in the currency is received or to convert
the currency at a freely determined market rate could be limited by governmental
actions.
NON-DOLLAR SECURITIES WILL PERMIT US TO MAKE PAYMENTS IN DOLLARS OR DELAY
PAYMENT IF WE ARE UNABLE TO OBTAIN THE SPECIFIED CURRENCY
Securities payable in a currency other than U.S. dollars will provide that
if, because of circumstances beyond our control, the other currency is subject
to convertibility, transferability, market disruption or other conditions
affecting its availability at or about the time when a payment on the securities
comes due, we will be entitled to make the payment in U.S. dollars or delay
making the payment. These circumstances could include the imposition of exchange
controls or our inability to obtain the other currency because of a disruption
in the currency markets. If we made payment in U.S. dollars, the exchange rate
we would use would be determined in the manner described under "-- Payment
Mechanics for Debt Securities in Registered Form -- How We Will Make Payments
Due in Other Currencies -- When the Specified Currency Is Not Available." A
determination of this kind may be based on limited information and would involve
significant discretion on the part of our foreign exchange agent. As a result,
the value of the payment in dollars an investor would receive on the payment
date may be less than the value of the payment the investor would have received
in the other currency if it had been available, and may even be zero. In
addition, a government may impose extraordinary taxes on transfers of a
currency. If that happens, we will be entitled to deduct these taxes from any
payment on securities payable in that currency.
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WE WILL NOT ADJUST NON-DOLLAR SECURITIES TO COMPENSATE FOR CHANGES IN
CURRENCY EXCHANGE RATES
Except as described above, we will not make any adjustment or change in the
terms of a debt security payable in a currency other than U.S. dollars in the
event of any change in exchange rates for that currency, whether in the event of
any devaluation, revaluation or imposition of exchange or other regulatory
controls or taxes or in the event of other developments affecting that currency,
the U.S. dollar or any other currency. Consequently, investors in non-dollar
debt securities will bear the risk that their investment may be adversely
affected by these types of events.
IN A LAWSUIT FOR PAYMENT ON A NON-DOLLAR SECURITY, AN INVESTOR MAY BEAR
CURRENCY EXCHANGE RISK
Unless otherwise specified in your prospectus supplement, the debt
securities under the applicable indenture will be governed by New York law.
Under Section 27 of the New York Judiciary Law, a state court in the State of
New York rendering a judgment on a security denominated in a currency other than
U.S. dollars would be required to render the judgment in the specified currency;
however, the judgment would be converted into U.S. dollars at the exchange rate
prevailing on the date of entry of the judgment. Consequently, in a lawsuit for
payment on a security denominated in a currency other than U.S. dollars,
investors would bear currency exchange risk until judgment is entered, which
could be a long time.
In courts outside of New York, investors may not be able to obtain judgment
in a specified currency other than U.S. dollars. For example, a judgment for
money in an action based on a non-dollar security in many other U.S. federal or
state courts ordinarily would be enforced in the United States only in U.S.
dollars. The date used to determine the rate of conversion of the currency in
which any particular security is denominated into U.S. dollars will depend upon
various factors, including which court renders the judgment.
INFORMATION ABOUT EXCHANGE RATES MAY NOT BE INDICATIVE OF FUTURE PERFORMANCE
If we issue a debt security denominated in a specified currency other than
U.S. dollars, we may include in the applicable prospectus supplement a currency
supplement that provides information about historical exchange rates for the
specified currency. Any information about exchange rates that we may provide
will be furnished as a matter of information only, and you should not regard the
information as indicative of the range of, or trends in, fluctuations in
currency exchange rates that may occur in the future. That rate will likely
differ from the exchange rate used under the terms that apply to a particular
debt security.
35
DESCRIPTION OF ORDINARY SHARES
Please note that in the sections entitled "Description of Ordinary Shares,"
"Description of the Stichting Trust and the Bearer Receipts" and "Description of
American Depositary Shares We May Offer," references to "ING Groep N.V.," "we,"
"our" and "us" refer only to ING Groep N.V. and not to ING's consolidated
subsidiaries. This section and your prospectus supplement will summarize 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
the Registration Statement of which this Prospectus is a part.
GENERAL
As of April 19, 2002, our authorized share capital is divided into 3,000
million Ordinary Shares, with a nominal value of EUR 0.24 per Ordinary Share,
100 million "A" Preference Shares with a nominal value of EUR 1.20 per "A"
Preference Share, 200 million "B" Preference Shares with a nominal value of EUR
1.20 per "B" Preference Share and 900 million Cumulative Preference Shares with
a nominal value of EUR 1.20 per Cumulative Preference Share. The Ordinary
Shares, the "A" Preference Shares, the "B" Preference Shares and the Cumulative
Preference Shares are in registered form (the "A" Preference Shares and "B"
Preference Shares are collectively referred to herein as "Preference Shares").
The outstanding ordinary shares and "A" Preference Shares are fully paid and
nonassessable. Ordinary Shares, "A" Preference Shares and "B" Preference Shares
(collectively, the "Shares") may only be issued or transferred to natural
persons, provided, however, that no such issuance or transfer is permitted if
the transferee holds or would acquire pursuant to such issuance or transfer more
than 1% of the total issued ordinary shares or Preference Shares, as the case
may be. The principal exception to this restriction is that the Stichting
Administratiekantoor ING Groep is not subject to such limitations on ownership
of ordinary shares and Preference Shares. Over 99% of the outstanding ordinary
shares are currently held by the Stichting Trust, which has issued bearer
receipts in exchange therefor. As of December 31, 2001, 1,992.7 million Ordinary
Shares were issued and outstanding. In addition, as of December 31, 2001, 87.1
million "A" Preference Shares, no "B" Preference shares and no Cumulative
Preference shares were issued and outstanding.
DIVIDENDS
Dividends, whether in cash or shares, may be payable out of our annual
profits as reflected in the annual accounts adopted by the Supervisory Board and
approved by the General Meeting of Shareholders of ING Groep N.V. Each year, a
final dividend in respect of the prior year is generally declared at and paid
after the annual General Meeting of Shareholders generally held in May of each
year. An interim dividend is generally declared and paid in September, based
upon the results for the first six months. The declaration of interim dividends
is subject to the discretion of our Executive Board, whose decision to that
effect is subject to the approval of our Supervisory Board. The Executive Board
decides, subject to the approval of our Supervisory Board, which part of the
annual profits (after payment of dividends on Preference Shares and Cumulative
Preference shares) will be added to the reserves of ING Groep N.V. The part of
the annual profits that remains after this addition to the reserves and after
payment of dividends on Preference Shares and Cumulative Preference Shares is at
the disposal of the General Meeting of Shareholders, which may declare dividends
therefrom and/or add additional amounts to the reserves of ING Groep N.V. A
proposal of the Executive Board with respect thereto is submitted to the General
Meeting of Shareholders. The declaration and payment of dividends and the amount
thereof is dependent upon our results of operations, financial condition, cash
requirements, future prospects and other factors deemed relevant by the
Executive Board in determining the appropriate amount of reserves and there can
be no assurance that the Group will declare and pay any dividends in the future.
See "Item 8 -- Financial information -- Dividends" in the Annual Report for a
more detailed discussion of the dividend rights of holders of Ordinary Shares.
Our Executive Board may also decide, with the approval of the
36
Supervisory Board, to declare dividends in the currency of a country other than
The Netherlands, in which the bearer receipts are trading.
VOTING RIGHTS
GENERAL MEETINGS OF SHAREHOLDERS OF ING GROEP N.V.
Under Netherlands law, we must hold at least one annual general meeting of
shareholders, not later than six months after the end of the fiscal year.
Pursuant to our Articles of Association, general meetings of shareholders may
also be held as often as the Executive Board or the Supervisory Board deems
desirable. In addition, shareholders or holders of bearer receipts representing
at least one-tenth of the issued share capital may request the Executive Board
in writing to convene a general meeting of shareholders. If the Executive Board
or the Supervisory Board has not taken measures so that the meeting can be held
within six weeks after such request has been made, the persons who have made the
request are authorized to convene such a meeting in accordance with requirements
of Netherlands law. Our Articles of Association specify the places where general
meetings of shareholders may be held, all of which are located in The
Netherlands. In order to attend, to address and to vote at the general meeting
of shareholders, holders of ordinary shares (including those voting by proxy)
must notify us in writing of their intention to attend the meeting no later than
the fourth Amsterdam Stock Exchange day before the day of the meeting. We do not
solicit from or nominate proxies for our shareholders and are exempt from the
SEC's proxy rules under the Exchange Act. However, shareholders and other
persons entitled to attend general meetings of shareholders may be represented
by proxies with written authority. See "Item 7 -- Major shareholders and related
party transactions" in the Annual Report.
Resolutions are adopted at General Meetings of Shareholders by an absolute
majority of the votes cast (except where a larger majority of votes is required
by the Articles of Association or Netherlands law) and there are generally no
quorum requirements applicable to such meetings, except as set forth in the
following paragraph. Each Ordinary Share presently carries one vote. Each
Preference Share and each Cumulative Preference Share carries 5 votes.
AMENDMENT OF ARTICLES OF ASSOCIATION AND WINDING UP OF ING GROEP
N.V. Resolutions to amend the Articles of Association or to dissolve ING Groep
N.V. may only be adopted upon a proposal by the Executive Board that is approved
by the Supervisory Board. Such resolution must generally be approved by a
majority of at least two-thirds of the votes cast at a General Meeting of
Shareholders at which more than two-thirds of the issued share capital is
represented.
ADOPTING OF ANNUAL ACCOUNTS
As provided by Netherlands law and by our Articles of Association, the
Executive Board submits ING Groep N.V.'s annual Netherlands statutory accounts,
together with a certificate of the audit in respect thereof, to the Supervisory
Board for adoption. Upon such adoption, these accounts are submitted to the
General Meeting of Shareholders for approval.
LIQUIDATION RIGHTS
In the event of the dissolution and liquidation of ING Groep N.V., the
assets remaining after payment of all debts and liquidation expenses are first
to be distributed to the holders of Cumulative Preference Shares to the extent
of the nominal amount paid up on the Cumulative Preference Shares plus accrued
dividends. Then the "A" Preference shareholders are entitled to receive EUR 1.20
plus accrued dividends per share, and the "B" Preference shareholders are
entitled to receive the amount for which the "B" Preference shares were
subscribed plus accrued dividends. Any remainder will be distributed to holders
of the Ordinary Shares.
ACQUISITION AND CANCELLATION OF ORDINARY SHARES
We may acquire Ordinary Shares and/or bearer receipts, subject to
compliance with certain Netherlands law requirements (including that the
aggregate nominal value of all Shares and/or bearer receipts held by ING Groep
N.V. and any of its subsidiaries at any one time amounts to no more than 10% of
our issued share capital). Shares owned by us may not be voted or counted for
quorum purposes.
37
Any such acquisitions are subject to the decision of the Executive Board, the
approval of the Supervisory Board and the authorization of shareholders at the
General Meeting of Shareholders of ING Groep N.V. Shares and/or bearer receipts
held by us may be resold.
The General Meeting of Shareholders has the power to decide to cancel any
Shares we acquire. Any such proposal is subject to general requirements of
Netherlands law with respect to reduction of capital.
In addition, the General Meeting has the power to cancel one or more
classes (or series within those classes) of Preference Shares. Furthermore, the
General Meeting may decide to reduce the nominal amount of any or all classes
(or series within those classes) of the Shares. Any such proposal is subject to
general requirements of Netherlands law with respect to reduction of capital as
well as the relevant provisions of our Articles of Association.
LIMITATIONS ON RIGHT TO HOLD OR VOTE THE ORDINARY SHARES
There are no limitations imposed by Netherlands law or by our Articles of
Association on the right of non-resident owners to hold or vote the ordinary
shares solely by reason of such non-residence.
38
DESCRIPTION OF THE STICHTING TRUST AND THE BEARER RECEIPTS
The following is a description of the material provisions of the Stichting
Trust Agreement and the applicable provisions of Netherlands law. This
description does not purport to be complete and is qualified in its entirety by
reference to the Stichting Trust Agreement and the applicable provisions of
Netherlands law referred to in such description.
GENERAL
Bearer receipts, which are negotiable instruments under Netherlands law,
are issuable by the Stichting Administratiekantoor ING Groep, which we refer to
as the Stichting Trust, pursuant to the terms of the Stichting trust's articles
of association (Statuten) and the related conditions of administration
(Administratievoorwaarden) (which, when read together, are the Stichting Trust
Agreement). The Stichting Trust Agreement governs the rights of the holders of
bearer receipts relative to the Stichting Trust. Each bearer receipt represents
an interest in one ING Ordinary Share, nominal value EUR 0.24, (after stock
split) held by the Stichting Trust. As of December 31, 2001, the trust held
approximately 1,991,713,046 Ordinary Shares of ING, which represents more than
99.9% of the ING Ordinary Shares outstanding. The bearer receipts are traded on
the Euronext Stock Exchange in The Netherlands. There are no limitations under
Netherlands law on the rights of non-residents or non-citizens to hold or vote
the bearer receipts of Ordinary Shares, other than the general limitations
described below.
The ING articles and the Stichting Trust Agreement together with English
translations thereof, are incorporated by reference in the registration
statement of which this prospectus forms a part.
Except as described herein, holders of bearer receipts (including those for
which ADSs have been issued) are not entitled to exercise any voting rights with
respect to the Ordinary Shares underlying the bearer receipts owned by the
Stichting Trust. Such rights are exercisable only by the Stichting Trust
pursuant to the terms of the Stichting Trust Agreement. For a more detailed
discussion of the bearer receipts see "Item 7 -- Major shareholders and related
party transactions" in the Annual Report.
As of December 31, 2001, no other person is known to us to be the owner of
more than 10% of the Ordinary Shares or bearer receipts. As of December 31,
2001, members of the Supervisory Board held 24,984 Bearer receipts for shares,
no ING Groep N.V. bearer receipts for Preference Shares and 457 Group warrants.
If Supervisory Board members held ING options that were granted in their former
capacity as member of the ING Executive Board, then these options are part of
the ING stock option plan specifications in Note 3.2.3 of the Notes to the
Consolidated Financial Statements in our Annual Report.
DIVIDENDS
Holders of bearer receipts are entitled to receive the economic benefits
corresponding to the ordinary shares underlying such bearer receipts within one
week of the time when the Stichting Trust receives the corresponding dividends
or other distributions to shareholders. The Stichting Trust will distribute cash
dividends and other cash distributions received by it in respect of the ordinary
shares held by the Stichting Trust to the holders of the bearer receipts in
proportion to their respective holdings, in each case in the same currency in
which they were received. Cash dividends and other cash distributions in respect
of bearer receipts for which ADSs have been issued will be distributed in U.S.
dollars in accordance with the Deposit Agreement.
If we declare a dividend in, or free distribution of, ordinary shares or
preference shares, such ordinary shares or preference shares will be held by the
Stichting Trust, and the Stichting Trust will distribute to the holders of the
outstanding bearer receipts, in proportion to their holdings, additional bearer
receipts issued for the ordinary shares or preference shares received by the
trust as such dividend or distribution. In the event the trust receives any
distribution with respect to ordinary shares held by the trust other than in the
form of cash or additional ING shares, the Stichting Trust will adopt such
method as it may deem legal, equitable and practicable to effect such
distribution.
If the Stichting Trust has the option to receive such distribution either
in cash or ING shares, the Stichting Trust will give notice of such option by
advertisement and give holders of bearer receipts the
39
opportunity to choose between cash and ING shares until the fourth day before
the day on which the Stichting Trust must have made such choice. Holders of
bearer receipts may receive an equal nominal amount in ordinary shares, provided
that they are natural persons and do not hold more than 1% of our issued share
capital in the form of ordinary shares.
Dividends, whether in cash or shares, may be payable out of our annual
profits, as reflected in the annual accounts adopted by the Supervisory Board
and approved by the General Meeting. At its discretion, but subject to statutory
provisions, the Executive Board may, with the prior approval of the Supervisory
Board, distribute one or more interim dividends, whether in cash, or shares, or
one or more classes of shares before the annual accounts for any financial year
have been adopted by the Supervisory Board and approved by the General Meeting.
The Executive Board, with the approval of the Supervisory Board, may decide that
all or part of our profits after the distribution of dividends to the holders of
preference shares should be retained and not be made available for distribution
to holders of ordinary shares. Those profits that are not retained may be
distributed to the shareholders pursuant to a resolution of the General Meeting,
provided that the distribution does not reduce shareholders' equity below the
issued share capital increased by the amount of reserves required by Netherlands
law. The Executive Board determines, with the approval of the Supervisory Board,
whether the dividends on ordinary shares are payable in cash, in shares, or at
the option of the holders of ordinary shares, in cash or in shares. Existing
reserves that are distributable in accordance with Netherlands law may be made
available to the General Meeting for distribution upon proposal by the Executive
Board, subject to prior approval by the Supervisory Board. See "Item
8 -- Financial information -- Dividends" in our Annual Report which is
incorporated by reference into this prospectus for additional discussion of the
dividend rights of holders of ordinary shares. The Executive Board may also
decide, with the approval of the Supervisory Board, to declare dividends in the
currency of the country other than The Netherlands in which the bearer receipts
are trading.
40
DESCRIPTION OF AMERICAN DEPOSITARY SHARES WE MAY OFFER
This section and the prospectus supplement will summarize all of the
material provisions of the Amended and Restated Deposit Agreement, dated as of
June 2, 1997, pursuant to which the American Depositary Receipts (which we refer
to as ADRs) are to be issued among ING Groep N.V., JPMorgan Chase Bank, as
depositary, and the holders from time to time of ADSs. We refer to this
agreement as the Deposit Agreement. They do not, however, describe every aspect
of the Deposit Agreement, which has been filed as exhibit to the Registration
Statement of which this Prospectus is a part. 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 offices of
the Depositary in New York, which is presently located at 60 Wall Street, New
York, New York 10260 and at the offices of the agents of the Depositary
currently located at ING Bank N.V., Strawinskylaan 2631, 1077 ZZ Amsterdam, P.O.
Box 810, 1000 AV Amsterdam, The Netherlands. The Depositary's principal office
is located at 60 Wall Street, New York, New York 10260.
GENERAL
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 bearer receipt for an ordinary share or evidence the right to receive one
bearer receipt. 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.
Pursuant to the terms of the Deposit Agreement, holders, owners and
beneficial owners of ADRs will be subject to any applicable disclosure
requirements regarding acquisition and ownership of ordinary shares or bearer
receipts as are applicable pursuant to the terms of our Articles of Association
or Netherlands laws, as each may be amended from time to time. See "Item
10 -- Additional information -- Obligations of shareholders to disclose
holdings" in our Annual Report for a description of such disclosure requirements
applicable to ordinary shares and the consequences of noncompliance as of the
date of this Prospectus. The Depositary has agreed, subject to the terms and
conditions of the Deposit Agreement, to use its reasonable efforts to comply
with all of the obligations of the holders set forth in the Deposit Agreement.
DEPOSIT, TRANSFER AND WITHDRAWAL
The Depositary has agreed that upon delivery of bearer receipts to their
custodian, which is currently ING Bank N.V., (or evidence of rights to receive
bearer receipts) and in accordance with the procedures set forth in the Deposit
Agreement, the Depositary will execute and deliver at its office to, or upon the
written order of, the person or persons named in the notice of the Custodian
delivered to the Depositary or requested by the person or persons who delivered
such bearer receipts to the Custodian for deposit with the Depositary, an ADR or
ADRs registered in the name or names of such person or persons and evidencing
the number of ADRs to which such person or persons are entitled.
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 Articles of Association of the ING Group, N.V. and the Deposited
Securities, the Holder of such ADR will be entitled to delivery without
unreasonable delay 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 shall ordinarily deliver such
Deposited Securities at its office; the forwarding for delivery at the office of
the Depositary or at any other place specified by the Holder of cash, other
property and documents of title for such delivery will be at the risk and
expense of the Holder.
The Depositary may issue ADRs against rights to receive bearer receipts
from us, or any registrar, transfer agent, clearing agency or the entity
recording bearer receipt ownership or transactions. The Depositary may issue
ADRs against other rights to receive bearer receipts (until such bearer receipts
are actually deposited, "pre-released ADRs"); only if (x) such pre-released ADRs
are fully collateralized
41
(marked to market daily) with cash or U.S. government securities held by the
Depositary for the benefit of holders (but such collateral shall not constitute
Deposited Securities); (y) each recipient of such pre-released ADRs represents
and agrees in writing with the Depositary that such recipient or its customer
(i) beneficially owns such bearer receipts, (ii) assigns all beneficial right,
title and interest therein to the Depositary for the benefit of the holders,
(iii) holds such bearer receipts for the account of the Depositary and (iv) will
deliver such bearer receipts to the Custodian as soon as practicable and
promptly upon demand therefor but in no event more than five days after demand
therefor; and (z) all pre-released ADRs evidence not more than 20% of all ADSs
(excluding those evidenced by pre-released ADRs). Such collateral, but not the
earnings thereon, shall be held for the benefit of the holders. The Depositary
may retain for its own account any compensation for the issuance of ADRs against
such other rights to receive bearer receipts, including without limitation
earnings on the collateral securing such rights.
DIVIDENDS, OTHER DISTRIBUTIONS AND RIGHTS
Unless it is prohibited or restricted by applicable law, regulations or
applicable permits, the Depositary will convert or cause to be converted into
U.S. dollars, to the extent it can transfer the resulting U.S. dollars to the
United States, all cash dividends and other cash distributions denominated in a
currency other than U.S. dollars, including euro and Dutch guilders, that it
receives in respect of the Deposited Securities and to distribute the resulting
dollar amount (net of reasonable and customary expenses incurred by the
Depositary and any taxes the Depositary is required to withhold) to you in
proportion to the number of ADRs representing such Deposited Securities you
hold. See "Taxation -- Material Tax Consequences for Owning American Depositary
Shares -- Netherlands Taxation -- Withholding Tax on Dividends." If any foreign
currency received by the Depositary cannot be so converted and transferred, or
if any approval or license of any government or agency thereof which is required
for such conversion is denied, or in the opinion of the Depositary cannot be
obtained at a reasonable cost or within a reasonable time, the Depositary shall
in its discretion either distribute such foreign currency to each holder or hold
such foreign currency not so distributed uninvested and without liability for
interest thereon for the respective accounts of the holders entitled to receive
the same. If any such conversion of foreign currency, in whole or in part, can
be effected for distribution to some of the holders entitled thereto, the
Depositary may in its discretion make such conversion and distribution in U.S.
dollars to the extent permissible to the holders entitled thereto, distribute
foreign currency received by it to each holder requesting such distribution
entitled thereto or hold the balance uninvested for the respective accounts of
the holders entitled thereto.
If we declare a dividend in, or free distribution of, Ordinary Shares which
are evidenced by bearer receipts, the Depositary may with our approval, and
shall if we so request, distribute to you, in proportion to the number of ADRs
you hold, additional ADRs evidencing an aggregate number of ADSs that represents
the amount of Ordinary Shares evidenced by bearer receipts received as such
dividend or free distribution, subject to the terms and conditions of the
Deposit Agreement, including the withholding of any tax or other governmental
charge and the payment of fees of the Depositary. In lieu of delivering ADRs for
fractional ADSs in the event of any such dividend or free distribution, the
Depositary shall sell the amount of bearer receipts represented by the aggregate
of such fractions and distribute the net proceeds. If additional ADRs are not so
distributed, each ADS shall thenceforth also represent its proportionate
interest in the additional bearer receipts distributed upon the Deposited
Securities represented thereby.
If we offer or cause to be offered to you any rights to subscribe for
additional bearer receipts or any rights of any other nature, the Depositary
will have discretion as to the procedure to be followed in making such rights
available to you or in disposing of such rights for you and making the net
proceeds available to you in accordance with the Deposit Agreement or, if for
any reason, the Depositary may not either make such rights available to you or
dispose of such rights and make the net proceeds available to you, then the
Depositary shall allow the rights to lapse; provided, however, that if at the
time of such offering the Depositary determines that it is lawful and feasible
to make such rights available to you or to certain holders but not to other
holders, the Depositary may, and at the request of the Group will, distribute to
any holder to whom it determines the distribution to be lawful and feasible, in
proportion to the number of
42
ADSs held by such holder, warrants or other instruments therefor in such form as
it deems appropriate. If the Depositary determines that it is neither lawful nor
feasible to make such rights available to all or certain holders, or if the
rights represented by such warrants or other instruments are not exercised and
appear to be about to lapse, it may, and at our request will, sell the rights,
warrants or other instruments in proportion to the number of ADSs held by the
holders to whom it has determined it may not lawfully or feasibly make such
rights available, allocate the proceeds of such sales for the accounts of, and
distribute the net proceeds so allocated to, any holders otherwise entitled to
such rights, warrants or other instruments, upon an averaged or other
practicable basis without regard to any distinctions among such holders because
of exchange restrictions or the date of delivery of any ADR or ADRs, or
otherwise.
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 such 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,
bearer receipts or rights in respect of the Deposited Securities, the Depositary
shall, with our consent, cause the securities or property received by it to be
distributed to the holders entitled thereto in proportion to their holdings,
respectively, in any manner that the Depositary may reasonably deem equitable
and practicable for accomplishing such distribution; provided, however, that if
in the opinion of the Depositary such distribution cannot be made
proportionately among the holders entitled thereto, or if for any other reason
(including any requirement that we or the Depositary withhold an amount on
account of taxes or other governmental charges or that such securities must be
registered under the Securities Act in order to be distributed) the Depositary
deems such distribution not to be feasible, the Depositary may adopt such method
as it may deem equitable and practicable for the purpose of effecting such
distribution, including the sale (at public or private sale) of the securities
or property thus received, or any part thereof, and the net proceeds of any such
sale will be distributed by the Depositary to the holders entitled thereto as
provided for in the Deposit Agreement in the case of a distribution received in
cash. The holders alone shall be responsible for the payment of any taxes or
other governmental charges due as a result of such sales or transfers.
If the Depositary determines that any distribution of property other than
cash (including bearer receipts and rights to subscribe therefor) is subject to
any tax which the Depositary 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 or charges,
by public or private sale, and the Depositary will distribute the net proceeds
of any such sale after deduction of such taxes to the holders entitled thereto
in proportion to the number of ADRs held by them, respectively.
Upon any change in nominal or par value, split-up, consolidation,
cancellation or any other reclassification of Deposited Securities, or upon any
recapitalization, reorganization, merger or consolidation or sale of assets
affecting the Group or to which we are a party, any securities that shall be
received by the Depositary replacement or otherwise, in exchange for, in
conversion or replacement of, or otherwise in respect of, Deposited Securities
will be treated as new Deposited Securities under the Deposit Agreement, and the
ADRs shall thenceforth represent, in addition to the existing Deposited
Securities, the right to receive the new Deposited Securities so received in
exchange, conversion, replacement or otherwise, unless additional ADRs are
delivered pursuant to the following sentence. In any such case the Depositary
may with our approval, and will if we so request, execute and deliver additional
ADRs as in the case of a distribution in bearer receipts, or call for the
surrender of outstanding ADRs to be exchanged for new ADRs specifically
describing such securities.
RECORD DATES
Whenever any cash dividend or other cash distribution becomes payable with
respect to the ADRs, or whenever there is any meeting of holders of bearer
receipts, or whenever the Depositary shall find it necessary or convenient, the
Depositary will fix a record date (which shall be as near as practicable to any
corresponding record date set by us with respect to the bearer receipts), for
the determination of the
43
holders who shall be entitled to (i) receive such dividend, distribution or
rights, or the net proceeds of the sale thereof; or (ii) give instructions for
the exercise of voting rights at any such meeting, all subject to the provisions
of the Deposit Agreement.
VOTING OF DEPOSITED SECURITIES
If a meeting of holders of bearer receipts is called for the purpose of
such consultation, we shall give to the Depositary any required published
announcement of such meeting, along with any documents which such announcement
provides are available free of charge to holders of the bearer receipts, in
English. As soon as practicable after receipt of such announcement and
documents, or of any notice of any meeting or solicitation of consents or
proxies of holders of other Deposited Securities, the Depositary shall mail to
you a notice containing (a) such information as is contained in such
announcement, together with a statement that such documents are available free
of charge to you, or in such notice and in the solicitation materials, if any;
(b) a statement that at the close of business on a specified record date you
will be entitled, subject to the provisions of or governing Deposited
Securities, to instruct the Depositary as to the exercise of the voting rights,
if any, pertaining to the bearer receipts represented by the ADSs evidenced by
such holders' ADRs and exercisable at such meeting; and (c) a statement as to
the manner in which such instructions may be given, including an express
indication that instructions may be given (or be deemed given in accordance with
the last sentence of this paragraph if no instruction is received) to the
Depositary to give a discretionary proxy to a person designated by us. Upon the
written request of a holder of ADRs on such record date, received on or before
the date established by the Depositary for such purposes, the Depositary shall
endeavor insofar as practicable and permitted under the provisions of or
governing Deposited Securities to vote or cause to be voted (or to grant a
discretionary proxy to a person designated by us to vote) the Deposited
Securities represented by the ADSs evidenced by such holder's ADRs in accordance
with any instructions set forth in such request. The Depositary shall not itself
exercise any voting discretion over any Deposited Securities. If no instructions
are received by the Depositary from you on or before the date established by the
Depositary for such purpose, the Depositary shall deem you to have instructed
the Depositary to give a discretionary proxy to a person designated by us to
vote such Deposited Securities and the Depositary shall give a discretionary
proxy to a person designated by us to vote such Deposited Securities, provided
that no such instruction shall be deemed given and no such discretionary proxy
shall be given with respect to any matter as to which we inform the Depositary
(and we agree to provide such information promptly in writing) that (x) we do
not wish such proxy given; (y) substantial opposition exists; or (z) the rights
of holders of Shares are materially affected.
REPORTS AND OTHER COMMUNICATIONS
The Depositary will promptly send to you, at our expense, copies of any
reports, notices and communications furnished by us pursuant to the Deposit
Agreement, including English-language versions of our annual reports.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The ADRs and the Deposit Agreement may at any time be amended by agreement
between us and the Depositary without your consent; provided, however, that any
amendment that imposes or increases any fees or charges (other than taxes, other
governmental charges, delivery and other such expenses), or which otherwise
prejudices any substantial existing right of yours, will not take effect as to
outstanding ADRs until the expiration of 30 days after notice of any such
amendment has been given to you. Every holder at the expiration of 30 days after
such notice 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 an ADR to
surrender such ADR and receive therefor the bearer receipts and any property
represented thereby (including Deposited Securities), except in accordance with
mandatory provisions of applicable law. In the event that the Depositary
resigns, is removed or is otherwise substituted and we enter into a new deposit
agreement, you will be promptly notified by the successor depositary.
44
CHARGES OF DEPOSITARY
The Depositary will charge any party depositing or withdrawing bearer
receipts or any party surrendering ADRs or to whom ADRs are issued where
applicable: (1) stock transfer and other taxes and other governmental charges;
(2) such registration fees as may from time to time be in effect for the
registration of transfers of bearer receipts generally on our share register of
the Group (or the appointed agent of the Group for transfer and registration of
bearer receipts) and applicable to transfers of bearer receipts to the name of
the Depositary or its nominee or the Custodian or its nominee on the making of
deposits or withdrawals; (3) such cable, telex and facsimile transmission
expenses as are expressly provided in the Deposit Agreement to be at the expense
of persons depositing bearer receipts or holders; (4) such expenses as are
incurred by the Depositary in the conversion of foreign currency pursuant to the
Deposit Agreement; (5) a fee not in excess of $5.00 per 100 ADSs (or portion
thereof) for the execution and delivery and for the surrender of ADRs pursuant
to the Deposit Agreement; and (6) an issuance fee.
LIABILITY OF HOLDER OF TAXES
If any tax or other governmental charge shall become payable by the
Custodian or the Depositary with respect to any ADR or any Deposited Securities
represented by such ADRs, such tax or other governmental charge will be payable
by you to the Depositary. The Depositary may refuse to effect registration of
any transfer of such ADR or any withdrawal of Deposited Securities underlying
such ADR until such payment is made and may withhold any dividends or other
distributions or may sell 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.
TRANSFER OF AMERICAN DEPOSITARY RECEIPTS
The ADRs are transferable on the books of the Depositary, provided that the
Depositary may close the transfer books at any time or from time to time when
deemed expedient by it in connection with the performance of its duties or at
our written request. As a condition precedent to the execution and delivery,
registration, registration of transfer, split-up, combination or surrender of
any ADR, the delivery of any distribution thereon, or withdrawal of any
Deposited Securities, the Depositary or the Custodian may require payment from
the person presenting the ADR or the depositor of the bearer receipts of a sum
sufficient to reimburse it for any tax or other governmental charge and any
stock transfer, registration or conversion fee with respect thereto (including
any such tax or charge and fee with respect to bearer receipts being deposited
or withdrawn) and payment of any applicable fees payable by the holders of ADRs.
The Depositary may refuse to deliver ADRs, to register the transfer of any ADR
or to make any distribution on, or related to, bearer receipts or Ordinary
Shares until it has received such proof of citizenship or residence, exchange
control approval or other information as it may deem necessary or proper. The
delivery, transfer, combination or split-up of ADRs may be suspended during any
period when the transfer books of the Depositary, the Group or its agent for the
registration and transfer of bearer receipts are closed or if any such action is
deemed necessary or advisable by the Depositary or us, at any time or from time
to time subject to the provisions of the Deposit Agreement. Notwithstanding
anything in the Deposit Agreement to the contrary, the surrender of outstanding
ADRs and the withdrawal of Deposited Securities may not be suspended subject
only to (i) the payment of fees, taxes and similar charges; and (ii) compliance
with any U.S. or foreign laws or governmental regulations relating to the ADRs
or to the withdrawal of the Deposited Securities.
GENERAL
Neither the Depositary nor the Group nor any of their respective directors,
employees, agents or affiliates will be liable to you if by reason of any
provision of any present or future law or regulation of the United States, The
Netherlands or any other country, or of any other governmental or regulatory
authority or stock exchange or by reason of any provision, present or future, of
the Articles of the Group, or by reason of any act of God or war or other
circumstance beyond its control, the Depositary or the Group or any of their
directors, employees, agents or affiliates shall be prevented, delayed or
forbidden from, or be
45
subject to any civil or criminal penalty on account of, doing or performing any
act or thing which by the terms of the Deposit Agreement or the Deposited
Securities it is provided shall be done or performed; nor will the Depositary or
the Group incur any liability to you by reason of any non-performance or delay,
caused as stated in the preceding clause, in the performance of any act or thing
which by the terms of the Deposit Agreement it is provided shall or may be done
or performed, or by reason of any exercise of, or failure to exercise, any
discretion provided for under the Deposit Agreement, or the Articles of the
Group or the Trust Agreement.
The Group and the Depositary assume no obligation nor shall either be
subject to any liability under the Deposit Agreement, except that each shall
agree to perform its respective obligations specifically set forth therein
without negligence or bad faith.
The Depositary will keep books at its transfer office in the Borough of
Manhattan, the City of New York, for the registration of transfers of ADRs,
which at all reasonable times will be open for inspection by the holders,
provided that such inspection shall not be for the purpose of communicating with
holders in the interest of a business or object other than the business of the
Group or a matter related to the Deposit Agreement or the ADRs.
The Depositary may, after consultation with us, appoint one or more
co-transfer agents for the purposes of effecting transfers, combinations and
split-ups of ADRs at designated transfer offices on behalf of the Depositary. In
carrying out its functions, a co-transfer agent may require evidence of
authority and compliance with applicable laws and other requirements by holders
of ADRs or owners or persons entitled thereto and will be entitled to protection
and indemnity to the same extent as the Depositary.
GOVERNING LAW
The Deposit Agreement is governed by the laws of the State of New York.
46
LEGAL OWNERSHIP AND BOOK-ENTRY ISSUANCE
In this section, we describe special considerations that will apply to
registered securities issued in global, i.e., book-entry form. First we describe
the difference between legal ownership and indirect ownership of registered
securities. Then we describe special provisions that apply to global securities.
LEGAL OWNERSHIP OF REGISTERED SECURITIES
Each security in registered form will be represented either by a
certificate issued in definitive form to a particular investor or by one or more
global securities representing the entire issuance of securities. We refer to
those who have securities registered in their own names on the books that we or
the trustee maintains for this purpose as the "holders" of those securities.
These persons are the legal holders of the securities. We refer to those who
indirectly through others own beneficial interests in securities that are not
registered in their own names as indirect owners of those securities. As we
discuss below, indirect owners are not legal holders, and investors in
securities issued in book-entry form or in street name will be indirect owners.
LEGAL HOLDERS
Our obligations, as well as the obligations of the trustee and those of any
third parties employed by us or the trustee, run only to the legal holders of
the securities. We do not have obligations to investors who hold beneficial
interests in global securities, in street name or by any other indirect means.
This will be the case whether an investor chooses to be an indirect holder of a
security or has no choice because we are issuing the securities only in global
form.
For example, once we make a payment or give a notice to the holder, we have
no further responsibility for the payment or notice even if that holder is
required, under agreements with depositary participants or customers or by law,
to pass it along to the indirect holders but does not do so. Similarly, if we
want to obtain the approval of the holders for any purpose, e.g., to amend the
applicable indenture or to relieve us of the consequences of a default or of our
obligation to comply with a particular provision of the applicable
indenture -- we would seek the approval only from the holders, and not the
indirect holders, of the securities. Whether and how the holders contact the
indirect holders is up to the holders.
When we refer to you, we mean those who invest in the securities being
offered by this prospectus, whether they are the holders or only indirect
holders of those securities. When we refer to your securities, we mean the
securities in which you hold a direct or indirect interest.
BOOK-ENTRY OWNERS
We will issue each security, other than the bearer receipts, in book-entry
form only. This means securities will be represented by one or more global
securities registered in the name of a financial institution that holds them as
depositary on behalf of other financial institutions that participate in the
depositary's book-entry system. These participating institutions, in turn, hold
beneficial interests in the securities on behalf of themselves or their
customers.
Under each indenture, only the person in whose name a security is
registered is recognized as the holder of that security. Consequently, for
securities issued in global form, we will recognize only the depositary as the
holder of the securities and we will make all payments on the securities,
including deliveries of any property other than cash, to the depositary. The
depositary passes along the payments it receives to its participants, which in
turn pass the payments along to their customers who are the beneficial owners.
The depositary and its participants do so under agreements they have made with
one another or with their customers; they are not obligated to do so under the
terms of the securities.
As a result, investors will not own securities directly. Instead, they will
own beneficial interests in a global security, through a bank, broker or other
financial institution that participates in the depositary's book-entry system or
holds an interest through a participant. As long as the securities are issued in
global form, investors will be indirect owners, and not holders, of the
securities.
47
STREET NAME HOLDERS
In the future we may terminate a global security or issue securities
initially in non-global form. In these cases, investors may choose to hold their
securities in their own names or in "street name." Securities held by an
investor in street name would be registered in the name of a bank, broker or
other financial institution that the investor chooses, and the investor would
hold only a beneficial interest in those securities through an account he or she
maintains at that institution.
For securities held in street name, we will recognize only the intermediary
banks, brokers and other financial institutions in whose names the securities
are registered as the holders of those securities and we will make all payments
on those securities to them. These institutions pass along the payments they
receive to their customers who are the beneficial owners, but only because they
agree to do so in their customer agreements or because they are legally required
to do so. Investors who hold securities in street name will be indirect holders,
not holders, of those securities.
SPECIAL CONSIDERATIONS FOR INDIRECT HOLDERS
If you hold securities through a bank, broker or other financial
institution, either in book-entry form or in street name, you should check with
your own institution to find out:
- how it handles securities payments and notices;
- whether it imposes fees or charges;
- how it would handle a request for the holders' consent, if ever required;
- whether and how you can instruct it to send you securities registered in
your own name so you can be a holder, if that is permitted in the future;
- how it would exercise rights under the securities if there were a default
or other event triggering the need for holders to act to protect their
interests; and
- if the securities are in book-entry form, how the depositary's rules and
procedures will affect these matters.
WHAT IS A GLOBAL SECURITY?
A global security represents one or any other number of individual
securities. Generally, all securities represented by the same global securities
will have the same terms. We may, however, issue a global security that
represents multiple securities that have different terms and are issued at
different times. We call this kind of global security a master global security.
A global security can be in registered or bearer form.
A global security may not be transferred to or registered in the name of
anyone other than the depositary or its nominee, unless special termination
situations arise. We describe those situations below under "-- Holder's Option
to Obtain a Non-Global Security; Special Situations When a Global Security Will
Be Terminated." As a result of these arrangements, the depositary, or its
nominee, will be the sole registered owner and holder of all securities
represented by a global security, and investors will be permitted to own only
indirect interests in a global security. Indirect interests must be held by
means of an account with a broker, bank or other financial institution that in
turn has an account with the depositary or with another institution that does.
Thus, an investor whose security is represented by a global security will not be
a holder of the security, but only an indirect owner of an interest in the
global security.
If the prospectus supplement for a particular security indicates that the
security will be issued in global form only, then the security will be
represented by a global security at all times unless and until the global
security is terminated. We describe the situations in which this can occur below
under "-- Holder's Option to Obtain a Non-Global Security; Special Situations
When a Global Security Will Be Terminated." If termination occurs, we may issue
the securities through another book-entry clearing system or decide that the
securities may no longer be held through any book-entry clearing system.
48
SPECIAL CONSIDERATIONS FOR GLOBAL SECURITIES
As an indirect holder, an investor's rights relating to a global security
will be governed by the account rules of the investor's financial institution
and of the depositary, as well as general laws relating to securities transfers.
We do not recognize this type of investor as a holder of securities and instead
deal only with the depositary that holds the global security.
If securities are issued only in the form of a global security, an investor
should be aware of the following:
- an investor cannot cause the securities to be registered in his or her
name, and cannot obtain non-global certificates for his or her interest
in the securities, except in the special situations we describe below;
- an investor will be an indirect holder and must look to his or her own
bank or broker for payments on the securities and protection of his or
her legal rights relating to the securities;
- an investor may not be able to sell interests in the securities to some
insurance companies and to other institutions that are required by law to
own their securities in non-book-entry form;
- an investor may not be able to pledge his or her interest in a global
security in circumstances where certificates representing the securities
must be delivered to the lender or other beneficiary of the pledge in
order for the pledge to be effective;
- the depositary's policies, which may change from time to time, will
govern payments, transfers, exchanges and other matters relating to an
investor's interest in a global security. We and the trustee have no
responsibility for any aspect of the depositary's actions or for its
records of ownership interests in a global security. We and the trustee
also do not supervise the depositary in any way;
- the depositary may require that those who purchase and sell interests in
a global security within its book-entry system use immediately available
funds and your broker or bank may require you to do so as well; and
- financial institutions that participate in the depositary's book-entry
system, and through which an investor holds its interest in a global
security, directly or indirectly, may also have their own policies
affecting payments, notices and other matters relating to the debt
securities. There may be more than one financial intermediary in the
chain of ownership for an investor. We do not monitor and are not
responsible for the actions of any of those intermediaries.
In addition, because of time-zone differences, U.S. investors who hold
their interests in the securities through these systems, and wish to transfer
their interests, or to receive or make a payment or delivery with respect to
their interests, on a particular day may find that the transaction will not be
effected until the next business day in Luxembourg or Brussels, as applicable.
Investors who hold their interests through both DTC and Euroclear or
Clearstream, Luxembourg may need to make special arrangements to finance any
purchases or sales of their interests between the U.S. and European clearing
systems, and those transactions may settle later than would be the case for
transactions within one clearing system.
DTC, CLEARSTREAM, LUXEMBOURG AND EUROCLEAR
Unless your prospectus supplement provides otherwise, the securities, other
than the Ordinary Shares or bearer receipts, will initially be issued to
investors only in book-entry form. We will issue and register in the name of one
or more financial institutions or clearing systems or their nominees, one or
more fully registered global certificates, representing the total aggregate
number of securities. A financial institution or clearing system that we select
for the purpose is called the "depositary" for that security. A security will
usually have only one depositary, but it may have more.
49
Each series of securities will have one or more of the following as the
depositaries:
- DTC;
- Euroclear;
- a financial institution holding the securities on behalf of Clearstream,
Luxembourg; or
- any other clearing system or financial institution named in the
applicable prospectus supplement.
The depositaries named above may also be participants in one another's systems.
Thus, for example, if DTC is the depositary for a global security, investors may
hold beneficial interests in that security through Euroclear or Clearstream,
Luxembourg as DTC participants. The depositary or depositaries for your
securities will be named in your prospectus supplement; if none is named, the
depositary will be DTC.
DTC is a limited-purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act. DTC
holds securities that its participants deposit with DTC. DTC also facilitates
the settlement among its participants of securities transactions, such as
transfers and pledges, in deposited securities through electronic computerized
book-entry changes in its participants' accounts, eliminating the need for
physical movement of securities certificates. Participants in DTC include
Clearstream, Luxembourg and Euroclear, securities brokers and dealers, banks,
trust companies, clearing corporations and certain other organizations. DTC is
owned by a number of its participants and by the New York Stock Exchange, the
American Stock Exchange, Inc., and the National Association of Securities
Dealers, Inc. Access to the DTC system is also available to others such as
securities brokers and dealers, banks and trust companies that clear through or
maintain a custodial relationship with a DTC participant, either directly or
indirectly. The rules applicable to DTC and its participants are on file with
the SEC.
Clearstream, Luxembourg is incorporated under the laws of Luxembourg as a
bank. Clearstream, Luxembourg holds securities for its participating
organizations and facilitates the clearance and settlement of securities
transactions between its participants through electronic book-entry changes in
accounts of its participants, eliminating the need for physical movement of
certificates. Transactions may be settled in Clearstream, Luxembourg in a
variety of currencies, including U.S. dollars. Clearstream Banking provides to
its participants, among other things, services for safekeeping, administration,
clearance and settlement of internationally traded securities and securities
lending and borrowing. Clearstream, Luxembourg interfaces with domestic markets
in several countries. As a professional depositary, Clearstream, Luxembourg is
subject to regulation by the Luxembourg Commission for the Supervision of the
Financial Sector. Clearstream, Luxembourg participants are recognized financial
institutions around the world, including securities brokers and dealers, banks,
trust companies, clearing corporations and certain other organizations. Indirect
access to Clearstream, Luxembourg is also available to others, such as banks,
brokers, dealers and trust companies that clear through or maintain a custodial
relationship with a Clearstream, Luxembourg participant, either directly or
indirectly. In May 1999, Cedel International, the parent of Clearstream,
Luxembourg and Deutsche Boerse Clearing, a unit of the German stock exchange,
merged to form a pan-European clearance and settlement system named Clearstream
International.
Euroclear was created in 1968 to hold securities for its participants and
to clear and settle transactions between its participants through simultaneous
electronic book-entry delivery against payment, eliminating the need for
physical movement of certificates and any risk from lack of simultaneous
transfers of securities and cash. Transactions may be settled in a variety of
currencies, including U.S. dollars. Euroclear includes various other services,
including securities lending and borrowing and interfaces with domestic markets
in several countries generally similar to the arrangements for cross-market
transfers with DTC described in this prospectus. Euroclear is incorporated under
the laws of Belgium as a bank and is subject to regulation by the Belgian
Banking and Finance Commission and the National Bank of Belgium. Euroclear
participants include banks, including central banks, securities brokers and
dealers and other professional financial intermediaries. Indirect access to
Euroclear is also available to other firms that clear
50
through or maintain a custodial relationship with a Euroclear participant,
either directly or indirectly. All securities in Euroclear are held on a
fungible basis. This means that specific certificates are not matched to
specific securities clearance accounts.
CONSIDERATIONS RELATING TO EUROCLEAR, DTC AND CLEARSTREAM, LUXEMBOURG
Euroclear and Clearstream, Luxembourg are securities clearance systems in
Europe. Both systems clear and settle securities transactions between their
participants through electronic, book-entry delivery of securities against
payment.
Euroclear and Clearstream, Luxembourg may be depositaries for a global
security. In addition, if DTC is the depositary for a global security. Euroclear
and Clearstream, Luxembourg may hold interests in the global security as
participants in DTC.
As long as any global security is held by Euroclear or Clearstream,
Luxembourg as depositary, you may hold an interest in the global security only
through an organization that participates, directly or indirectly, in Euroclear
or Clearstream, Luxembourg. If Euroclear or Clearstream, Luxembourg is the
depositary for a global security and there is no depositary in the United
States, you will not be able to hold interests in that global security through
any securities clearance system in the United States.
Payments, deliveries, transfers, exchanges, notices and other matters
relating to the securities made through Euroclear or Clearstream, Luxembourg
must comply with the rules and procedures of those systems. Those systems could
change their rules and procedures at any time. We have no control over those
systems or their participants and we take no responsibility for their
activities. Transactions between participants in Euroclear or Clearstream,
Luxembourg, on one hand, and participants in DTC, on the other hand, when DTC is
the depositary, would also be subject to DTC's rules and procedures.
Purchases of securities within the DTC system must be made by or through
DTC participants, which will receive a credit for the securities on DTC's
records and on the records of Clearstream, Luxembourg or Euroclear, if
applicable. The ownership interest of each actual purchaser of securities, a
beneficial owner of an interest in a global certificate, is in turn to be
recorded on the DTC participants' and indirect participants' records. Beneficial
owners of interests in a global certificate will not receive written
confirmation from DTC of their purchases, but beneficial owners of an interest
in a global certificate are expected to receive written confirmations providing
details of the transactions, as well as periodic statements of their holdings,
from the DTC participants or indirect participants through which the beneficial
owners of an interest in a global certificate purchased securities. Transfers of
ownership interests in the securities are to be accomplished by entries made on
the books of DTC participants and indirect participants acting on behalf of
beneficial owner of an interest in a global certificate. Beneficial owners of
interests in a global certificate will not receive certificates representing
their ownership interests in securities, unless use of the book-entry system for
the securities is discontinued.
TRANSFERS AMONG DTC, CLEARSTREAM, LUXEMBOURG AND EUROCLEAR
Transfers between DTC participants will occur in accordance with DTC rules.
Transfers between Clearstream, Luxembourg and Euroclear participants will occur
in accordance with their respective rules and operating procedures.
Cross-market transfers between persons holding directly or indirectly
through DTC, on the one hand, and directly or indirectly through Clearstream,
Luxembourg or Euroclear participants, on the other, will be effected in DTC in
accordance with DTC rules on behalf of the relevant European international
clearing system by the relevant European Depositary; however, those cross-market
transactions will require delivery of instructions to the relevant European
international clearing system by the counterparty in that system in accordance
with its rules and procedures and within its established deadlines, European
time. The relevant European international clearing system will, if the
transaction meets its settlement requirements, deliver instructions to the
relevant European Depositary to take action to effect final settlement on its
behalf by
51
delivering or receiving securities in DTC, and making or receiving payment in
accordance with normal procedures for same-day funds settlement applicable to
DTC. Clearstream, Luxembourg and Euroclear participants may not deliver
instructions directly to the European Depositaries.
For information with respect to tax documentation procedures, see
"Taxation."
LIMITATIONS ON RESPONSIBILITIES
DTC, Clearstream, Luxembourg and Euroclear have no knowledge of the actual
beneficial owners of interests in a global certificate of the securities. DTC's
records reflect only the identity of the DTC participants, including
Clearstream, Luxembourg and Euroclear, to whose accounts those securities are
credited, which may or may not be the beneficial owners of interests in a global
certificate. Similarly, the records of Clearstream, Luxembourg and Euroclear
reflect only the identity of the Clearstream, Luxembourg or Euroclear
participants to whose accounts those securities are credited, which also may or
may not be the beneficial owners of interests in a global certificate. DTC,
Clearstream, Luxembourg and Euroclear participants and indirect participants
will remain responsible for keeping account of their holdings on behalf of their
customers.
SPECIAL TIMING CONSIDERATIONS FOR TRANSACTIONS IN EUROCLEAR AND CLEARSTREAM,
LUXEMBOURG
Investors will be able to make and receive through Euroclear and
Clearstream, Luxembourg payments, deliveries, transfers, exchanges, notices and
other transactions involving any securities held through those systems only on
days when those systems are open for business. Those systems may not be open for
business on days when banks, brokers and other institutions are open for
business in the United States.
HOLDER'S OPTION TO OBTAIN A NON-GLOBAL SECURITY; SPECIAL SITUATIONS WHEN A
GLOBAL SECURITY WILL BE TERMINATED
If we issue any series of securities in book-entry form but we choose to
give the beneficial owners of that series the right to obtain non-global
securities, any beneficial owner entitled to obtain non-global securities may do
so by following the applicable procedures of the depositary, any transfer agent
or registrar for that series and that owner's bank, broker or other financial
institution through which that owner holds its beneficial interest in the
securities.
In addition, in a few special situations described below, a global security
will be terminated and interests in it will be exchanged for certificates in
non-global form representing the securities it represented. After that exchange,
the choice of whether to hold the securities directly or in street name will be
up to the investor. Investors must consult their own banks or brokers to find
out how to have their interests in a global security transferred on termination
to their own names, so that they will be holders. We have described the rights
of holders and street name investors below.
The special situations for termination of a global security are as follows:
- if the depositary notifies us that it is unwilling, unable or no longer
qualified to continue as depositary for that global security and we do
not appoint another institution to act as depositary within 60 days;
- if we notify the trustee that we wish to terminate that global security;
or
- if an event of default has occurred with regard to the securities and has
not been cured or waived.
If a global security is terminated, only the depositary, and neither we nor
the trustee, is responsible for deciding the names of the institutions in whose
names the securities represented by the global security will be registered and,
therefore, who will be the holders of those securities.
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LIMITATIONS ON RIGHTS RESULTING FROM BOOK-ENTRY FORM
The laws of some jurisdictions require that certain purchasers of
securities take physical delivery of securities in definitive form. These laws
may impair the ability to transfer beneficial interests in the global securities
as represented by a global certificate.
TRANSFER AND ISSUE OF DEFINITIVE SECURITIES
If definitive securities are issued in the limited circumstances described
above, those securities may be transferred in whole or in part in denominations
of any whole number of securities upon surrender of the definitive securities
certificates together with the form of transfer endorsed on it, duly completed
and executed at the specified office of a transfer agent. If only part of a
securities certificate is transferred, a new securities certificate representing
the balance not transferred will be issued to the transferor within three
business days after the trustee receives the certificate. The new certificate
representing the balance will be delivered to the transferor by uninsured post
at the risk of the transferor, to the address of the transferor appearing in our
records. The new certificate representing the securities that were transferred
will be sent to the transferee within three business days after the trustee
receives the certificate transferred, by uninsured post at the risk of the
holder entitled to the securities represented by the certificate, to the address
specified in the form of transfer.
Registration of transfers of securities will be effected without charge by
or on behalf of ING Groep N.V., but the transferor will be required to pay any
tax or other governmental charges that may be imposed in relation to the
transfer, together with any indemnity that ING Groep N.V. may require.
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TAXATION
The following describes the material U.S. federal income and The
Netherlands tax consequences of owning the debt securities, bearer receipts and
the American Depositary Shares (collectively, the "securities") we are offering.
This discussion is the opinion of Sullivan & Cromwell insofar as it relates to
matters of U.S. federal income tax law and the opinion of KPMG Meijburg & Co.
insofar as it relates to matters of Dutch tax law. It applies to you only if you
acquire the securities in the offering or offerings contemplated by this
prospectus and you hold your securities as capital assets for tax purposes. This
section does not apply to you if you are a member of a class of holders subject
to special rules, such as:
- a dealer in securities or currencies;
- a trader in securities that elects to use a mark-to-market method of
accounting for your securities holdings;
- a bank;
- a life insurance company;
- a tax-exempt organization;
- a person that owns debt securities that are a hedge or that are hedged
against interest rate or currency risks;
- a person that is liable for alternative minimum tax;
- a person that actually or constructively owns 10% or more of the voting
stock of ING Groep N.V.;
- a person that owns the securities as part of a straddle or conversion
transaction for tax purposes; or
- a person whose functional currency for tax purposes is not the U.S.
dollar.
This section, insofar as it relates to U.S. federal income tax laws, is
based on the Internal Revenue Code of 1986, as amended, its legislative history,
existing and proposed regulations under the Internal Revenue Code, published
rulings and court decisions, as well as the relevant provisions of the present
double taxation treaty between The Netherlands and the United States (the
"Treaty"), all as currently in effect. These laws are subject to change,
possibly on a retroactive basis.
For purposes of this section, you are a U.S. holder if you are a beneficial
owner of a security and you are:
- a citizen or resident of the United States;
- a domestic corporation;
- an estate whose income is subject to U.S. federal income tax regardless
of its source; or
- a trust if a U.S. court can exercise primary supervision over the trust's
administration and one or more U.S. persons are authorized to control all
substantial decisions of the trust.
You are a U.S. alien holder if you are the beneficial owner of a security
and are, for U.S. federal income tax purposes:
- a non-resident alien individual;
- a foreign corporation;
- a foreign partnership; or
- an estate or trust that in either case is not subject to U.S. federal
income tax on a net income basis on income or gain from a debt security.
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MATERIAL TAX CONSEQUENCES OF OWNING OUR DEBT SECURITIES
UNITED STATES TAXATION
This subsection deals only with debt securities that are issued in
registered form for U.S. tax purposes and are due to mature 30 years or less
from the date on which they are issued. The U.S. federal income tax consequences
of owning debt securities that are issued in bearer form for U.S. tax purposes
or debt securities that are to mature more than 30 years from their date of
issue will be discussed in an applicable prospectus supplement.
UNITED STATES HOLDERS
The following describes the tax consequences to a U.S. holder. If you are
not a U.S. holder, this does not apply to you and you should refer to "-- United
States Alien Holders" below.
PAYMENTS OF INTEREST
Except as described below in the case of interest on a discount debt
security that is not qualified stated interest, each as defined below under
"-- Original Issue Discount -- General," you will be taxed on any interest on
your debt security, whether payable in U.S. dollars or a foreign currency,
including a composite currency or basket of currencies other than U.S. dollars,
as ordinary income at the time you receive the interest or when it accrues,
depending on your method of accounting for tax purposes. Interest paid by us on
the debt securities and original issue discount, if any, accrued with respect to
the debt securities (as described below under "-- Original Issue Discount")
constitutes income from sources outside the United States, but, with certain
exceptions, will be "passive" or "financial services" income, which is treated
separately from other types of income for purposes of computing the foreign tax
credit allowable to a U.S. holder.
CASH BASIS TAXPAYERS. If you are a taxpayer that uses the cash receipts
and disbursements method of accounting for tax purposes and you receive an
interest payment that is denominated in, or determined by reference to, a
foreign currency, you must recognize income equal to the U.S. dollar value of
the interest payment, based on the exchange rate in effect on the date of
receipt, regardless of whether you actually convert the payment into U.S.
dollars.
ACCRUAL BASIS TAXPAYERS. If you are a taxpayer that uses an accrual method
of accounting for tax purposes, you may determine the amount of income that you
recognize with respect to an interest payment denominated in, or determined by
reference to, a foreign currency by using one of two methods. Under the first
method, you will determine the amount of income accrued based on the average
exchange rate in effect during the interest accrual period or, with respect to
an accrual period that spans two taxable years, that part of the period within
the taxable year.
If you elect the second method, you would determine the amount of income
accrued on the basis of the exchange rate in effect on the last day of the
accrual period, or, in the case of an accrual period that spans two taxable
years, the exchange rate in effect on the last day of the part of the period
within the taxable year. Additionally, under this second method, if you receive
a payment of interest within five business days of the last day of your accrual
period or taxable year, you may instead translate the interest accrued into U.S.
dollars at the exchange rate in effect on the day that you actually receive the
interest payment. If you elect the second method, it will apply to all debt
instruments that you hold at the beginning of the first taxable year to which
the election applies and to all debt instruments that you subsequently acquire.
You may not revoke this election without the consent of the Internal Revenue
Service.
When you actually receive an interest payment, including a payment
attributable to accrued but unpaid interest upon the sale or retirement of your
debt security, denominated in, or determined by reference to, a foreign currency
for which you accrued an amount of income, you will recognize ordinary
55
income or loss measured by the difference, if any, between the exchange rate
that you used to accrue interest income and the exchange rate in effect on the
date of receipt, regardless of whether you actually convert the payment into
U.S. dollars.
ORIGINAL ISSUE DISCOUNT
GENERAL. If you own a debt security, other than a short-term debt security
with a term of one year or less, it will be treated as a discount debt security
issued at an original issue discount if the amount by which the debt security's
stated redemption price at maturity exceeds its issue price is more than a de
minimis amount. Generally, a debt security's issue price will be the first price
at which a substantial amount of debt securities included in the issue of which
the debt security is a part is sold to persons other than bond houses, brokers,
or similar persons or organizations acting in the capacity of underwriters,
placement agents, or wholesalers. A debt security's stated redemption price at
maturity is the total of all payments provided by the debt security that are not
payments of qualified stated interest. Generally, an interest payment on a debt
security is qualified stated interest if it is one of a series of stated
interest payments on a debt security that are unconditionally payable at least
annually at a single fixed rate, with certain exceptions for lower rates paid
during some periods, applied to the outstanding principal amount of the debt
security. There are special rules for variable rate debt securities that are
discussed under "-- Variable Rate Debt Securities."
In general, your debt security is not a discount debt security if the
amount by which its stated redemption price at maturity exceeds its issue price
is less than the de minimis amount of 1/4 of 1 percent of its stated redemption
price at maturity multiplied by the number of complete years to its maturity.
Your debt security will have de minimis original issue discount if the amount of
the excess is less than the de minimis amount. If your debt security has de
minimis original issue discount, you must include the de minimis amount in
income as stated principal payments are made on the debt security, unless you
make the election described below under "-- Election to Treat All Interest as
Original Issue Discount." You can determine the includible amount with respect
to each such payment by multiplying the total amount of your debt security's de
minimis original issue discount by a fraction equal to:
- the amount of the principal payment made
divided by:
- the stated principal amount of the debt security.
Generally, if your discount debt security matures more than one year from
its date of issue, you must include original issue discount in income before you
receive cash attributable to that income. The amount of OID that you must
include in income is calculated using a constant-yield method, and generally you
will include increasingly greater amounts of OID in income over the life of your
debt security. More specifically, you can calculate the amount of OID that you
must include in income by adding the daily portions of OID with respect to your
discount debt security for each day during the taxable year or portion of the
taxable year that you hold your discount debt security. You can determine the
daily portion by allocating to each day in any accrual period a pro rata portion
of the OID allocable to that accrual period. You may select an accrual period of
any length with respect to your discount debt security and you may vary the
length of each accrual period over the term of your discount debt security.
However, no accrual period may be longer than one year and each scheduled
payment of interest or principal on the discount debt security must occur on
either the first or final day of an accrual period.
You can determine the amount of OID allocable to an accrual period by:
- multiplying your discount debt security's adjusted issue price at the
beginning of the accrual period by your debt security's yield to
maturity; and then
- subtracting from this figure the sum of the payments of qualified stated
interest on your debt security allocable to the accrual period.
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You must determine the discount debt security's yield to maturity on the basis
of compounding at the close of each accrual period and adjusting for the length
of each accrual period. Further, you determine your discount debt security's
adjusted issue price at the beginning of any accrual period by:
- adding your discount debt security's issue price and any accrued OID for
each prior accrual period; and then
- subtracting any payments previously made on your discount debt security
that were not qualified stated interest payments.
If an interval between payments of qualified stated interest on your
discount debt security contains more than one accrual period, then, when you
determine the amount of OID allocable to an accrual period, you must allocate
the amount of qualified stated interest payable at the end of the interval,
including any qualified stated interest that is payable on the first day of the
accrual period immediately following the interval, pro rata to each accrual
period in the interval based on their relative lengths. In addition, you must
increase the adjusted issue price at the beginning of each accrual period in the
interval by the amount of any qualified stated interest that has accrued prior
to the first day of the accrual period but that is not payable until the end of
the interval. You may compute the amount of OID allocable to an initial short
accrual period by using any reasonable method if all other accrual periods,
other than a final short accrual period, are of equal length.
The amount of OID allocable to the final accrual period is equal to the
difference between:
- the amount payable at the maturity of your debt security, other than any
payment of qualified stated interest; and
- your debt security's adjusted issue price as of the beginning of the
final accrual period.
ACQUISITION PREMIUM. If you purchase your debt security for an amount that
is less than or equal to the sum of all amounts, other than qualified stated
interest, payable on your debt security after the purchase date but is greater
than the amount of your debt security's adjusted issue price, as determined
above under "-- General," the excess is acquisition premium. If you do not make
the election described below under "-- Election to Treat All Interest as
Original Issue Discount," then you must reduce the daily portions of OID by an
amount equal to:
- the excess of your adjusted basis in the debt security immediately after
purchase over the adjusted issue price of the debt security
divided by:
- the excess of the sum of all amounts payable, other than qualified stated
interest, on the debt security after the purchase date over the debt
security's adjusted issue price.
MARKET DISCOUNT. You will be treated as if you purchased your debt
security, other than a short-term debt security, at a market discount, and your
debt security will be a market discount debt security if:
- you purchase your debt security for less than its issue price as
determined above under "-- General"; and
- the difference between the debt security's stated redemption price at
maturity or, in the case of a discount debt security, the debt security's
revised issue price, and the price you paid for your debt security is
equal to or greater than 1/4 of 1 percent of your debt security's stated
redemption price at maturity or revised issue price, respectively,
multiplied by the number of complete years to the debt security's
maturity. To determine the revised issue price of your debt security for
these purposes, you generally add any OID that has accrued on your debt
security to its issue price.
If your debt security's stated redemption price at maturity or, in the case
of a discount debt security, its revised issue price, does not exceed the price
you paid for the debt security by 1/4 of 1 percent multiplied by the number of
complete years to the debt security's maturity, the excess constitutes de
minimis market discount, and the rules discussed below are not applicable to
you.
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You must treat any gain you recognize on the maturity or disposition of
your market discount debt security as ordinary income to the extent of the
accrued market discount on your debt security. Alternatively, you may elect to
currently include market discount in income over the life of your debt security.
If you make this election, it will apply to all debt instruments with market
discount that you acquire on or after the first day of the first taxable year to
which the election applies. You may not revoke this election without the consent
of the Internal Revenue Service. If you own a market discount debt security and
do not make this election, you will generally be required to defer deductions
for interest on borrowings allocable to your debt security in an amount not
exceeding the accrued market discount on your debt security until the maturity
or disposition of your debt security.
You will accrue market discount on your market discount debt security on a
straight-line basis unless you elect to accrue market discount using a
constant-yield method. If you make this election, it will apply only to the debt
security with respect to which it is made and you may not revoke it.
PRE-ISSUANCE ACCRUED INTEREST. An election may be made to decrease the
issue price of your debt security by the amount of pre-issuance accrued interest
if:
- a portion of the initial purchase price of your debt security is
attributable to pre-issuance accrued interest;
- the first stated interest payment on your debt security is to be made
within one year of your debt security's issue date; and
- the payment will equal or exceed the amount of pre-issuance accrued
interest.
If this election is made, a portion of the first stated interest payment
will be treated as a return of the excluded pre-issuance accrued interest and
not as an amount payable on your debt security.
DEBT SECURITIES SUBJECT TO CONTINGENCIES INCLUDING OPTIONAL
REDEMPTION. Your debt security is subject to a contingency if it provides for
an alternative payment schedule or schedules applicable upon the occurrence of a
contingency or contingencies, other than a remote or incidental contingency,
whether such contingency relates to payments of interest or of principal. In
such a case, you must determine the yield and maturity of your debt security by
assuming that the payments will be made according to the payment schedule most
likely to occur if:
- the timing and amounts of the payments that comprise each payment
schedule are known as of the issue date; and
- one of such schedules is significantly more likely than not to occur.
If there is no single payment schedule that is significantly more likely
than not to occur, other than because of a mandatory sinking fund, you must
include income on your debt security in accordance with the general rules that
govern contingent payment obligations. These rules will be discussed in the
applicable prospectus supplement.
Notwithstanding the general rules for determining yield and maturity, if
your debt security is subject to contingencies, and either you or we have an
unconditional option or options that, if exercised, would require payments to be
made on the debt security under an alternative payment schedule or schedules,
then:
- in the case of an option or options that we may exercise, we will be
deemed to exercise or not exercise an option or combination of options in
the manner that minimizes the yield on your debt security; and
- in the case of an option or options that you may exercise, you will be
deemed to exercise or not exercise an option or combination of options in
the manner that maximizes the yield on your debt security.
If both you and we hold options described in the preceding sentence, those
rules will apply to each option in the order in which they may be exercised. You
may determine the yield on your debt security for
58
the purposes of those calculations by using any date on which your debt security
may be redeemed or repurchased as the maturity date and the amount payable on
the date that you chose in accordance with the terms of your debt security as
the principal amount payable at maturity.
If a contingency, including the exercise of an option, actually occurs or
does not occur contrary to an assumption made according to the above rules then,
except to the extent that a portion of your debt security is repaid as a result
of this change in circumstances and solely to determine the amount and accrual
of OID, you must redetermine the yield and maturity of your debt security by
treating your debt security as having been retired and reissued on the date of
the change in circumstances for an amount equal to your debt security's adjusted
issue price on that date.
ELECTION TO TREAT ALL INTEREST AS ORIGINAL ISSUE DISCOUNT. You may elect
to include in gross income all interest that accrues on your debt security using
the constant-yield method described above under "-- General," with the
modifications described below. For purposes of this election, interest will
include stated interest, OID, de minimis original issue discount, market
discount, de minimis market discount and unstated interest, as adjusted by any
amortizable bond premium, described below under "-- Debt Securities Purchased at
a Premium," or acquisition premium.
If you make this election for your debt security, then, when you apply the
constant-yield method:
- the issue price of your debt security will equal your cost;
- the issue date of your debt security will be the date you acquired it;
and
- no payments on your debt security will be treated as payments of
qualified stated interest.
Generally, this election will apply only to the debt security for which you
make it; however, if the debt security has amortizable bond premium, you will be
deemed to have made an election to apply amortizable bond premium against
interest for all debt instruments with amortizable bond premium, other than debt
instruments the interest on which is excludible from gross income, that you hold
as of the beginning of the taxable year to which the election applies or any
taxable year thereafter. Additionally, if you make this election for a market
discount debt security, you will be treated as having made the election
discussed above under "-- Market Discount" to currently include market discount
in income over the life of all debt instruments that you currently own or later
acquire. You may not revoke any election to apply the constant-yield method to
all interest on a debt security or the deemed elections with respect to
amortizable bond premium or market discount debt securities without the consent
of the Internal Revenue Service.
VARIABLE RATE DEBT SECURITIES. Your debt security will be a variable rate
debt security if:
- your debt security's issue price does not exceed the total noncontingent
principal payments by more than the lesser of:
- 0.015 multiplied by the product of the total noncontingent principal
payments and the number of complete years to maturity from the issue
date; or
- 15 percent of the total noncontingent principal payments; and
- your debt security provides for stated interest, compounded or paid at
least annually, only at:
- one or more qualified floating rates;
- a single fixed rate and one or more qualified floating rates;
- a single objective rate; or
- a single fixed rate and a single objective rate that is a qualified
inverse floating rate.
59
Your debt security will have a variable rate that is a qualified floating rate
if:
- variations in the value of the rate can reasonably be expected to measure
contemporaneous variations in the cost of newly borrowed funds in the
currency in which your debt security is denominated; or
- the rate is equal to such a rate multiplied by either:
- a fixed multiple that is greater than 0.65 but not more than 1.35;
or
- a fixed multiple greater than 0.65 but not more than 1.35, increased
or decreased by a fixed rate; and
- the value of the rate on any date during the term of your debt security
is set no earlier than three months prior to the first day on which that
value is in effect and no later than one year following that first day.
If your debt security provides for two or more qualified floating rates
that are within 0.25 percentage points of each other on the issue date or can
reasonably be expected to have approximately the same values throughout the term
of the debt security, the qualified floating rates together constitute a single
qualified floating rate.
Your debt security will not have a qualified floating rate, however, if the
rate is subject to certain restrictions (including caps, floors, governors, or
other similar restrictions) unless such restrictions are fixed throughout the
term of the debt security or are not reasonably expected to significantly affect
the yield on the debt security.
Your debt security will have a variable rate that is a single objective
rate if:
- the rate is not a qualified floating rate;
- the rate is determined using a single, fixed formula that is based on
objective financial or economic information that is not within the
control of or unique to the circumstances of the issuer or a related
party; and
- the value of the rate on any date during the term of your debt security
is set no earlier than three months prior to the first day on which that
value is in effect and no later than one year following that first day.
Your debt security will not have a variable rate that is an objective rate,
however, if it is reasonably expected that the average value of the rate during
the first half of your debt security's term will be either significantly less
than or significantly greater than the average value of the rate during the
final half of your debt security's term.
An objective rate as described above is a qualified inverse floating rate
if:
- the rate is equal to a fixed rate minus a qualified floating rate; and
- the variations in the rate can reasonably be expected to inversely
reflect contemporaneous variations in the cost of newly borrowed funds.
Your debt security will also have a single qualified floating rate or an
objective rate if interest on your debt security is stated at a fixed rate for
an initial period of one year or less followed by either a qualified floating
rate or an objective rate for a subsequent period, and either:
- the fixed rate and the qualified floating rate or objective rate have
values on the issue date of the debt security that do not differ by more
than 0.25 percentage points; or
- the value of the qualified floating rate or objective rate is intended to
approximate the fixed rate.
In general, if your variable rate debt security provides for stated
interest at a single qualified floating rate or objective rate, or one of those
rates after a single fixed rate for an initial period, all stated interest
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on your debt security is qualified stated interest. In this case, the amount of
OID, if any, is determined by using, in the case of a qualified floating rate or
qualified inverse floating rate, the value as of the issue date of the qualified
floating rate or qualified inverse floating rate, or, for any other objective
rate, a fixed rate that reflects the yield reasonably expected for your debt
security.
If your variable rate debt security does not provide for stated interest at
a single qualified floating rate or a single objective rate, and also does not
provide for interest payable at a fixed rate other than a single fixed rate for
an initial period, you generally must determine the interest and OID accruals on
your debt security by:
- determining a fixed rate substitute for each variable rate provided under
your variable rate debt security;
- constructing the equivalent fixed rate debt instrument, using the fixed
rate substitute described above;
- determining the amount of qualified stated interest and OID with respect
to the equivalent fixed rate debt instrument; and
- adjusting for actual variable rates during the applicable accrual period.
When you determine the fixed rate substitute for each variable rate
provided under the variable rate debt security, you generally will use the value
of each variable rate as of the issue date or, for an objective rate that is not
a qualified inverse floating rate, a rate that reflects the reasonably expected
yield on your debt security.
If your variable rate debt security provides for stated interest either at
one or more qualified floating rates or at a qualified inverse floating rate,
and also provides for stated interest at a single fixed rate other than at a
single fixed rate for an initial period, you generally must determine interest
and OID accruals by using the method described in the previous paragraph.
However, your variable rate debt security will be treated, for purposes of the
first three steps of the determination, as if your debt security had provided
for a qualified floating rate, or a qualified inverse floating rate, rather than
the fixed rate. The qualified floating rate, or qualified inverse floating rate,
that replaces the fixed rate must be such that the fair market value of your
variable rate debt security as of the issue date approximates the fair market
value of an otherwise identical debt instrument that provides for the qualified
floating rate, or qualified inverse floating rate, rather than the fixed rate.
SHORT-TERM DEBT SECURITIES. In general, if you are an individual or other
cash-basis U.S. holder of a short-term debt security, you are not required to
accrue OID, as specially defined below for the purposes of this paragraph, for
U.S. federal income tax purposes unless you elect to do so. However, you may be
required to include any stated interest in income as you receive it. If you are
an accrual-basis taxpayer, a taxpayer in a special class, including, but not
limited to, a regulated investment company, common trust fund, or a certain type
of pass-through entity, or a cash-basis taxpayer who so elects, you will be
required to accrue OID on short-term debt securities on either a straight-line
basis or under the constant-yield method, based on daily compounding. If you are
not required and do not elect to currently include OID in income, any gain you
realize on the sale or retirement of your short-term debt security will be
ordinary income to the extent of the accrued OID, which will be determined on a
straight-line basis unless you make an election to accrue the OID under the
constant-yield method, through the date of sale or retirement. However, if you
are not required and do not elect to accrue OID on your short-term debt
securities, you will be required to defer deductions for interest on borrowings
allocable to your short-term debt securities in an amount not exceeding the
deferred income until the deferred income is realized.
When you determine the amount of OID subject to these rules, you must
include all interest payments on your short-term debt security, including stated
interest, in your short-term debt security's stated redemption price at
maturity.
FOREIGN CURRENCY DISCOUNT DEBT SECURITIES. If your discount debt security
is denominated in, or determined by reference to, a foreign currency, you must
determine OID for any accrual period on your
61
discount debt security in the foreign currency and then translate the amount of
OID into U.S. dollars in the same manner as stated interest accrued by an
accrual-basis U.S. holder, as described under "-- United States
Holders -- Payments of Interest." You may recognize ordinary income or loss when
you receive an amount attributable to OID in connection with a payment of
interest or the sale or retirement of your debt security.
DEBT SECURITIES PURCHASED AT A PREMIUM
If you purchase your debt security for an amount in excess of its principal
amount, you may elect to treat the excess as amortizable bond premium. If you
make this election, you will reduce the amount required to be included in your
income each year with respect to interest on your debt security by the amount of
amortizable bond premium allocable to that year, based on your debt security's
yield to maturity. If your debt security is denominated in, or determined by
reference to, a foreign currency, you will compute your amortizable bond premium
in units of the foreign currency and your amortizable bond premium will reduce
your interest income in units of the foreign currency. Gain or loss recognized
that is attributable to changes in exchange rates between the time your
amortized bond premium offsets interest income and the time of the acquisition
of your debt security is generally taxable as ordinary income or loss. If you
make an election to amortize bond premium, it will apply to all debt
instruments, other than debt instruments the interest on which is excludible
from gross income, that you hold at the beginning of the first taxable year to
which the election applies or that you thereafter acquire, and you may not
revoke it without the consent of the Internal Revenue Service. See also
"-- Original Issue Discount -- Election to Treat All Interest as Original Issue
Discount."
PURCHASE, SALE AND RETIREMENT OF THE DEBT SECURITIES
Your tax basis in your debt security will generally be the U.S. dollar
cost, as defined below, of your debt security, adjusted by:
- adding any OID or market discount, de minimis original issue discount and
de minimis market discount previously included in income with respect to
your debt security, and then
- subtracting any payments on your debt security that are not qualified
stated interest payments and any amortizable bond premium applied to
reduce interest on your debt security.
If you purchase your debt security with foreign currency, the U.S. dollar
cost of your debt security will generally be the U.S. dollar value of the
purchase price on the date of purchase. However, if you are a cash-basis
taxpayer, or an accrual-basis taxpayer if you so elect, and your debt security
is traded on an established securities market, as defined in the applicable
Treasury regulations, the U.S. dollar cost of your debt security will be the
U.S. dollar value of the purchase price on the settlement date of your purchase.
You will generally recognize gain or loss on the sale or retirement of your
debt security equal to the difference between the amount you realize on the sale
or retirement and your tax basis in your debt security. If your debt security is
sold or retired for an amount in foreign currency, the amount you realize will
be the U.S. dollar value of such amount on:
- the date payment is received, if you are a cash-basis taxpayer and the
debt securities are not traded on an established securities market, as
defined in the applicable U.S. Treasury regulations;
- the date of disposition, if you are an accrual-basis taxpayer; or
- the settlement date for the sale, if you are a cash-basis taxpayer, or an
accrual-basis taxpayer that so elects, and the debt securities are traded
on an established securities market, as defined in the applicable
Treasury regulations.
You will recognize capital gain or loss when you sell or retire your debt
security, except to the extent:
- described above under "-- Original Issue Discount -- Short-Term Debt
Securities" or
"-- Market Discount";
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- attributable to accrued but unpaid interest;
- the rules governing contingent payment obligations apply; or
- attributable to changes in exchange rates as described below.
Capital gain of a noncorporate U.S. holder is generally taxed at a maximum rate
of 20% where the property is held more than one year, and 18% where the property
is held for more than five years.
You must treat any portion of the gain or loss that you recognize on the
sale or retirement of a debt security as ordinary income or loss to the extent
attributable to changes in exchange rates. However, you take exchange gain or
loss into account only to the extent of the total gain or loss you realize on
the transaction.
EXCHANGE OF AMOUNTS IN OTHER THAN U.S. DOLLARS
If you receive foreign currency as interest on your debt security or on the
sale or retirement of your debt security, your tax basis in the foreign currency
will equal its U.S. dollar value when the interest is received or at the time of
the sale or retirement. If you purchase foreign currency, you generally will
have a tax basis equal to the U.S. dollar value of the foreign currency on the
date of your purchase. If you sell or dispose of a foreign currency, including
if you use it to purchase debt securities or exchange it for U.S. dollars, any
gain or loss recognized generally will be ordinary income or loss.
INDEXED DEBT SECURITIES
The applicable prospectus supplement will discuss any special U.S. federal
income tax rules with respect to debt securities, the payments on which are
determined by reference to any index and other debt securities that are subject
to the rules governing contingent payment obligations that are not subject to
the rules governing variable rate debt securities.
UNITED STATES ALIEN HOLDERS
This subsection describes the tax consequences to a U.S. alien holder. If
you are a U.S. holder, this section does not apply to you.
Under present U.S. federal income and estate tax law, and subject to the
discussion of backup withholding below, if you are a U.S. alien holder of a debt
security, interest on a debt security paid to you is exempt from U.S. federal
income tax, including withholding tax, whether or not you are engaged in a trade
or business in the United States, unless:
- you are an insurance company carrying on a U.S. insurance business to
which the interest is attributable, within the meaning of the Code; or
- you:
- have an office or other fixed place of business in the United States
to which the interest is attributable; and
- derive the interest in the active conduct of a banking, financing or
similar business within the United States.
PURCHASE, SALE, RETIREMENT AND OTHER DISPOSITION OF THE DEBT SECURITIES.
If you are a U.S. alien holder of a debt security, you generally will not
be subject to U.S. federal income tax on gain realized on the sale, exchange or
retirement of a debt security unless:
- the gain is effectively connected with your conduct of a trade or
business in the United States; or
- you are an individual, you are present in the United States for 183 or
more days during the taxable year in which the gain is realized and
certain other conditions exist.
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For purposes of the U.S. federal estate tax, the debt securities will be
treated as situated outside the United States and will not be includible in the
gross estate of a holder who is neither a citizen nor a resident of the United
States at the time of death.
BACKUP WITHHOLDING AND INFORMATION REPORTING
If you are a noncorporate U.S. holder, information reporting requirements,
on Internal Revenue Service Form 1099, generally will apply to:
- payments of principal, any premium and interest on a debt security within
the United States, including payments made by wire transfer from outside
the United States to an account you maintain in the United States; and
- the payment of the proceeds from the sale of a debt security effected at
a U.S. office of a broker.
Additionally, backup withholding will apply to such payments if you are a
noncorporate U.S. holder that:
- fails to provide an accurate taxpayer identification number;
- is notified by the Internal Revenue Service that you have failed to
report all interest and dividends required to be shown on your federal
income tax returns; or
- in certain circumstances, fails to comply with applicable certification
requirements.
If you are a U.S. alien holder, you are generally exempt from backup
withholding and information reporting requirements with respect to:
- payments of principal, any premium and interest made to you outside the
United States by us or another non-U.S. payor; and
- other payments of principal and interest and the payment of the proceeds
from the sale of a note effected at a U.S. office of a broker, as long as
the income associated with such payments is otherwise exempt from U.S.
federal income tax; and:
- the payor or broker does not have actual knowledge or reason to know
that you are a U.S. person and you have furnished to the payor or
broker:
- an Internal Revenue Service Form W-8BEN or an acceptable
substitute form upon which you certify, under penalties of
perjury, that you are a non-U.S. person; or
- other documentation upon which it may rely to treat the payments
as made to a non-U.S. person in accordance with U.S. Treasury
regulations; or
- you otherwise establish an exemption.
Payment of the proceeds from the sale of a debt security effected at a
foreign office of a broker generally will not be subject to information
reporting or backup withholding. However, a sale of a debt security that is
effected at a foreign office of a broker will be subject to information
reporting and backup withholding if:
- the proceeds are transferred to an account maintained by you in the
United States;
- the payment of proceeds or the confirmation of the sale is mailed to you
at a United States address; or
- the sale has some other specified connection with the United States as
provided in U.S. Treasury regulations;
unless the broker does not have actual knowledge or reason to know that you are
a U.S. person and the documentation requirements described above are met or you
otherwise establish an exemption.
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In addition, a sale of a debt security effected at foreign office of a
broker will be subject to information reporting if the broker is:
- a U.S. person;
- a controlled foreign corporation for U.S. tax purposes;
- a foreign person 50% or more of whose gross income is effectively
connected with the conduct of a U.S. trade or business for a specified
three-year period; or
- a foreign partnership, if at any time during its tax year:
- one or more of its partners are "U.S. persons", as defined in U.S.
Treasury regulations, who in the aggregate hold more than 50% of the
income or capital interest in the partnership; or
- such foreign partnership is engaged in the conduct of a U.S. trade
or business;
unless the broker does not have actual knowledge or reason to know that you are
a U.S. person and the documentation requirements described above are met or you
otherwise establish an exemption. Backup withholding will apply if the sale is
subject to information reporting and the broker has actual knowledge that you
are a U.S. person.
NETHERLANDS TAXATION
The information given below is neither intended as tax advice nor purports
to describe all of the tax considerations which may be relevant to a prospective
purchaser of the Debt Securities. Prospective purchasers are advised to acquaint
themselves with the overall tax consequences of purchasing, holding and/or
selling the Debt Securities.
This summary is based on the tax legislation, published case law, and other
regulations in force as at January 1, 2002, without prejudice to any amendments
introduced at a later date and implemented with or without retroactive effect.
In the following, it is assumed that the Debt Securities will be treated as
debt obligations of ING Groep N.V., and can not, partly, be reclassified as
equity nor actually functions as equity for Dutch tax purposes.
ING Groep N.V. has been informed that under the current tax law and
jurisprudence of The Netherlands:
WITHHOLDING TAX
All payments by ING Groep N.V. in respect of the Debt Securities can be
made without withholdings or deductions for or because of any taxes, duties or
charges of any nature whatsoever that are or may be withheld or assessed by the
Dutch tax authorities or any political subdivision thereof or therein, provided
that neither the remuneration nor the indebtedness of the remuneration of the
Debt Securities will or could be or will be deemed to be contingent upon profits
or the distribution of profits by ING Groep N.V. or any of its affiliated
companies. See "Netherlands Taxation -- Debt that functions as equity."
TAXES ON INCOME AND CAPITAL GAINS
A holder of a Debt Security, who derives income from such Debt Security or
who realizes a gain on the disposal or redemption of a Debt Security, will not
be subject to Dutch taxation on income or capital gains, unless:
a) the holder is, or is deemed to be, resident in The Netherlands; or
b) such income or gain is attributable to an enterprise or part thereof
which is carried on through a permanent establishment or a permanent
representative in The Netherlands; or
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c) the holder is an individual who has a substantial interest, whether
deemed or actual, in ING Groep N.V.; or
d) the holder is an individual who is associated (as defined in articles
3.91(2)(b) and 3.92(2)(b), (3) of the Income Tax Act of 2001) with
another individual who has a substantial interest in ING Groep N.V.; or
e) the holder is an individual and such income or gain is attributable to
his activities in The Netherlands, other than business or employment
activities ("belastbaar resultaat uit overige werkzaamheden in
Nederland"); or
f) the holder is an entity that has a substantial interest in ING Groep
N.V., which substantial interest does not form part of the assets of an
enterprise.
Under the Income Tax Act of 2001, three different categories of taxable
income can be distinguished, one of them is concerned with capital income, i.e.,
income from savings and investment. Taxable income is determined on the basis of
a presumptive, or deemed, return on capital, rather than on the basis of actual
income (such as interest actually received). At present, this deemed return has
been fixed at 4% of average net capital, that is, assets less qualifying
liabilities. The average net capital is determined as the net capital on January
1 and December 31, divided by 2. The 4% is applied after deduction of an exempt
amount of EUR 18,146. The deemed income is then taxed at a flat rate of 30%.
A holder of a Debt Security will not be subject to taxation on income from
savings and investment, unless the holder is an individual who is, or is deemed
to be, resident in The Netherlands.
GIFT, ESTATE OR INHERITANCE TAX
There will be no Dutch gift, estate or inheritance taxes levied on the
transfer of a Debt Security by way of gift by a holder, or upon the death of a
holder, unless:
a) the holder is, or is deemed to be, resident in The Netherlands;
b) the transfer is construed as an inheritance or as a gift made by or on
behalf of a person who, at the time of the gift or death, is, or is
deemed to be, resident in The Netherlands; or
c) such Debt Security is attributable to an enterprise or part thereof
which is carried on through a permanent establishment or a permanent
representative in The Netherlands.
VALUE-ADDED TAX
No value-added tax will be due in The Netherlands in respect of payments
made in consideration for the issue of the Debt Securities, whether in respect
of payments of interest and principal or in respect of the transfer of a Debt
Security.
OTHER TAXES
There will be no registration tax, capital transfer tax, customs duty,
stamp duty, property transfer tax or any other similar tax or duty due in The
Netherlands in respect of or in connection with the issue, transfer, execution,
delivery and enforcement by legal proceedings of the Debt Securities or the
performance of the ING Groep N.V.'s obligations under the relevant documents.
FINALLY
A holder of a Debt Security will not become, and will not be deemed to be,
resident in The Netherlands by the sole virtue of holding such Debt Security or
the execution, performance, delivery and/or enforcement of the relevant
documents.
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DEBT THAT ACTUALLY FUNCTIONS AS EQUITY
In addition to prevailing Dutch case law, as of January 1, 2002, new
provisions in the Corporate Income Tax Act 1969 have come into force on the
basis of which the remuneration for certain kind of loans ("hybrid loans") as
well as depreciation of these loans will no longer be tax deductible. These
rules apply to loans that in fact function as equity. The following criteria for
determining whether a loan in fact functions as equity apply. The criteria apply
to loans between affiliated taxpayers as well as to loans between non-affiliated
taxpayers.
1. The amount of remuneration on the loan is entirely contingent on the
results (i.e., the profits) or on the profit distribution by the debtor
or any of its affiliates and the repayment date is more than 10 years
after the date on which the loan was taken out; or
2. The amount of remuneration on the loan is partly contingent on the
results (i.e., the profits) or on the profit distribution by the debtor
or any of its affiliates and, at the time the remuneration is agreed,
the portion of the remuneration that is not profit-related is less than
half of the market rate of interest for loans with the same period to
maturity, the remuneration for which is not profit-related, and the
repayment date is more than 10 years after the date on which the loan
was taken out; or
3. The indebtedness of the remuneration is contingent on the profits made
or distributed by the debtor or any of its affiliates, although the
amount of the remuneration is not, and the loan is subordinated.
Moreover the repayment date is not fixed or is more than 50 years after
the date on which the loan was taken out.
Remuneration (e.g., interest) paid in respect of loans that are supposed to
function as shareholder's equity on the basis of the criteria stated under 1, 2
or 3 will not be tax deductible from the profit (Section 10(1)(d) of the
Corporate Income Tax Act 1969). For the concept of "affiliated entity," the
definition that is laid down in current Dutch law shall apply. Furthermore, the
Bill contains rules that regard both an interest free loan and remuneration for
a loan, which deviates substantially from the fair market interest as contingent
on the profits if the debtor and creditor are affiliated parties.
In connection with the foregoing also an amendment of the Dividend Tax Act
of 1965 has been enacted introducing withholding tax on interest payments, both
to individuals as well as to entities, on these hybrid loans.
These rules will only apply to loans issued not earlier than January 1,
2002. They will not have an influence upon the debt obligations issued before
that date. However, if the conditions of a loan are altered in such a way that
the existing loan has been replaced on or after January 1, 2002, by a new loan,
the new rules will apply.
Current Dutch case law is applicable to debt obligations issued on or
before December 31, 2001. On the basis of this Dutch case law debt obligations
will be reclassified as equity for Dutch tax purposes if the following
(cumulative) conditions are met:
a) the consideration for the debt is contingent upon the profits; and
b) the debt is subordinated in relation to all other creditors; and
c) repayment of the debt can only be demanded in the case of bankruptcy,
suspension of payment or liquidation.
The Dutch corporate income tax and Dutch dividend withholding tax
consequences of a reclassification as equity are equal to such tax consequences
in the situation that debt obligations function as equity.
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PROPOSED EU SAVINGS DIRECTIVE
On July 18, 2001, the European Commission published a proposal for a new
directive regarding the taxation of savings income. It is proposed that each
European Union member state under its domestic law requires disbursing agents
(within the meaning of the directive) established within its territory to
provide to the tax authorities of another member state details of the payment of
interest or other similar income such as discount or premium to an individual
resident in that other member state. However, for a transitional period of seven
years Austria, Belgium and Luxembourg may opt instead to withhold tax from such
payments. During the first three years after the directive has come into force
tax will have to be withheld by these member states at a rate of 15% and
thereafter of 20%. During the transitional period the directive will not apply
to bonds that have been issued in an increase of the nominal amount of bonds
prior to March 1, 2002, if the original issue has taken place or the prospectus
for the original issue has been approved before March 1, 2001. The proposed
directive is to be implemented by the member states by January 1, 2004. However,
since the implementation of the proposal is subject to certain non-member states
and associated territories and dependencies of member states also agreeing to
supply information or imposing a withholding tax it is currently not possible to
predict whether, when, or in what form the proposal will ultimately be adopted.
MATERIAL TAX CONSEQUENCES OF OWNING BEARER RECEIPTS OR AMERICAN DEPOSITARY
SHARES
The following describes your material Netherlands tax consequences, and
U.S. federal income tax consequences, of the ownership of bearer receipts or
ADSs.
The summary is a general description of the present Netherlands and U.S.
federal income tax laws and practices as well as the relevant provisions of the
Treaty. It should not be read as extending to matters not specifically
discussed, and prospective investors should consult their own advisors as to the
tax consequences of their purchase, ownership and disposal of bearer receipts or
ADSs. The Netherlands rules applying to holders of a "substantially
interest" -- in broad terms, individuals who hold or have held directly or
indirectly either independently or jointly with certain close relatives at least
5% of the nominal paid-up capital or of any class of shares in ING Groep
N.V. -- are not addressed in the summary. The summary is based in part upon the
representations of the Depositary and the assumption that each obligation in the
Deposit Agreement and any related agreement will be performed in accordance with
its terms.
In general, for the U.S. federal income and Netherlands tax purposes,
holders of bearer receipts will be treated as the owners of the Ordinary Shares
underlying the bearer receipts, holders of ADRs evidencing ADSs will be treated
as the owners of the Ordinary Shares evidenced by bearer receipts, and exchanges
of Ordinary Shares for bearer receipts and then for ADSs, and exchanges of ADSs
for bearer receipts and then for Ordinary Shares, will not be subject to U.S.
federal or Netherlands income tax.
It is assumed for purposes of this summary that you are entitled to the
benefits of the Treaty.
UNITED STATES TAXATION
TAXES ON INCOME
U.S. HOLDERS. For U.S. federal income tax purposes, if you are a U.S.
holder of bearer receipts or ADSs, you will be required to include in gross
income the full amount of a cash dividend (unreduced by Netherlands withholding
tax) as ordinary income when the dividend is actually or constructively
received, in the case of Ordinary Shares, or by the Trust in the case of bearer
receipts, or by the Depositary in the case of ADSs. For these purposes, a
"dividend" will include any distribution paid by ING Groep N.V. with respect to
the bearer receipts or ADSs, but only to the extent such distribution is not in
excess of ING Groep N.V.'s current and accumulated earnings and profits as
defined for U.S. federal income tax purposes. Such a dividend will constitute
income from sources outside the Untied States.
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Subject to the limitations provided in the U.S. Internal Revenue Code, you
may generally deduct from income, or credit against your U.S. federal income tax
liability, the amount of any Netherlands withholding taxes. To the extent a
refund of the tax withheld is available to you under Dutch Law or under the
Treaty, the amount that is refundable will not be eligible for credit against
your U.S. federal income tax liability. The Netherlands withholding tax will
likely not be creditable against your U.S. tax liability, however, to the extent
that ING Groep N.V. is allowed to reduce the amount of dividend withholding tax
paid over to The Netherlands Tax Administration by crediting withholding tax
imposed on certain dividends paid to ING Groep N.V. Currently ING Groep N.V.
may, with respect to certain dividends received from qualifying non-Netherlands
subsidiaries, credit taxes withheld from those dividends against The Netherlands
withholding tax imposed on a dividend paid by ING Groep N.V., up to a maximum of
the lesser of (i) 3% of the portion of the gross amount of the dividend paid by
ING Groep N.V. that is subject to withholding; and (ii) 3% of the gross amount
of the dividends received from qualifying non-Netherlands subsidiaries. The
credit reduces the amount of dividend withholding tax that ING Groep N.V. is
required to pay to The Netherlands Tax Administration but does not reduce the
amount of tax ING Groep N.V. is required to withhold from dividends. ING Groep
N.V. will endeavor to provide you with information concerning the extent to
which it has applied the reduction described above with respect to dividends
paid to U.S. holders.
Because payments of dividends with respect to bearer receipts and ADSs will
be made in euros, you will generally be required to determine the amount of
dividend income by translating the euros into United States dollars at the "spot
rate" on the date the dividend distribution is includible in your income.
Generally, any gain or loss resulting from currency exchange fluctuations during
the period from the date the dividend distribution is includible in your income
to the date such payment is converted into U.S. dollars will be treated as
ordinary income or loss. Such gain or loss will generally be income from sources
within the United States for foreign tax credit limitation purposes.
A distribution of Ordinary or Preference Shares pursuant to a distribution
in which shareholders have the right to choose to receive cash or shares will be
taxable to the same extent that a dividend of cash would be taxable.
UNITED STATES ALIEN HOLDERS. If you are a U.S. alien holder, dividends
paid to you in respect of bearer receipts or ADSs will not be subject to U.S.
federal income tax unless the dividends are "effectively connected" with your
conduct of a trade or business within the United States, and the dividends are
attributable to a permanent establishment that you maintain in the United States
if that is required by an applicable income tax treaty as a condition for
subjecting you to U.S. taxation on a net income basis. In such cases, you
generally will be taxed in the same manner as a U.S. holder. If you are a
corporate U.S. alien holder, "effectively connected" dividends may, under
certain circumstances, be subject to an additional "branch profits tax" at a 30%
rate or at a lower rate if you are eligible for the benefits of an income tax
treaty that provides for a lower rate.
TAXES ON CAPITAL GAINS
U.S. HOLDERS. If you are a U.S. holder, gain or loss on the sale or
exchange of your bearer receipts or ADSs will generally be capital gain or loss
for U.S. federal income tax purposes. If you held the bearer receipts or ADSs
for more than one year, such gain or loss will generally be long term capital
gain or loss. In general, gain or loss from a sale or exchange of your bearer
receipts or ADSs will be treated as U.S. source income for U.S. federal income
tax purposes.
U.S. ALIEN HOLDERS. If you are a U.S. alien holder, you will not be
subject to U.S. federal income tax on gain recognized on the sale or other
disposition of your bearer receipts or ADSs unless:
- the gain is "effectively connected" with your conduct of a trade or
business in the United States, and the gain is attributable to a
permanent establishment that you maintain in the United States if that is
required by an applicable income tax treaty as a condition for subjecting
you to U.S. taxation on a net income basis; or
69
- you are an individual, you are present in the United States for 183 or
more days in the taxable year of the sale and certain other conditions
exist.
If you are a corporate U.S. alien holder, "effectively connected" gains
that you recognize may also, under certain circumstances, be subject to an
additional "branch profits tax" at a 30% rate or at a lower rate if you are
eligible for the benefits of an income tax treaty that provides for a lower
rate.
PASSIVE FOREIGN INVESTMENT COMPANY
We believe that we are not a passive foreign investment company (a "PFIC")
for U.S. federal income tax purposes. This is a factual determination that must
be made annually and thus may change.
If we were a PFIC, unless you elect to be taxed annually on a
mark-to-market basis with respect to the shares or ADSs, any gain from the sale
or disposition of bearer receipts or ADSs by a U.S. holder would be allocated
ratably to each year in the holder's holding period and would be treated as
ordinary income. Tax would be imposed on the amount allocated to each year prior
to the year of the disposition at the highest rate in effect for that year, and
interest would be charged at the rate applicable to underpayments on the tax
payable in respect of the amount so allocated. The same rules would apply to
"excess distributions" to a U.S. holder, defined generally as the distributions
exceeding 125% of the average annual distribution made by us over the shorter of
the holder's holding period or the three preceding years.
If you are a U.S. holder and you own bearer receipts or ADSs during any
year that we are a PFIC, you must file Internal Revenue Service Form 8621.
BACKUP WITHHOLDING AND INFORMATION REPORTING
Information reporting rules and backup withholding apply to dividend
payments and to the proceeds of the sale of bearer receipts or ADSs in the same
manner that they apply to payments of interest and to the sale of debt
securities respectively. See "Material Tax Consequences of Owning Our Debt
Securities -- Backup Withholding and Information Reporting" above for a complete
discussion of these rules.
NETHERLANDS TAXATION
The information given below is neither intended as tax advice nor purports
to describe all of the tax considerations which may be relevant to a prospective
purchaser of the American Depositary Shares. Prospective purchasers are advised
to acquaint themselves with the overall tax consequences of purchasing, holding
and/or selling the American Depositary Shares.
This summary is based on the tax legislation, published case law, and other
regulations in force as at January 1, 2002, without prejudice to any amendments
introduced at a later date and implemented with or without retroactive effect.
DIVIDEND WITHHOLDING TAX
Dividends from the American Depositary Shares (the "ADSs") are generally
subject to Netherlands dividend withholding tax at a rate of 25 percent.
Dividends include:
(1) distributions in cash or in kind, including deemed and
constructive distributions;
(2) liquidation proceeds on redemption of the ADSs in excess of the
average paid-in capital as recognized for Netherlands dividend withholding
tax purposes and, as a rule, the consideration for the repurchase of the
ADSs by the Company (ING Groep N.V.) in excess of the average paid-in
capital recognized for Netherlands dividend withholding tax purposes,
unless such repurchase is (a) for temporary investment or (b) exempt on the
basis of the Dividend Tax Act 1965;
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(3) the par value in respect of the issue of ADSs to a holder of the
ADSs, or an increase in the par value of the ADSs, in exchange for a lower
consideration, except where the issue or increase is funded out of the
Company's paid-in capital as recognised for Netherlands dividend
withholding tax purposes; and
(4) partial redemption of the ADSs to the extent this constitutes a
repayment of contributed capital (as understood under the Dividend Tax Act
1965), and to the extent the Company has net profits (as that expression is
understood for Netherlands dividend withholding tax purposes), unless the
ADS holders have resolved in general meeting to make such repayment, and
the par value of the ADSs concerned has been reduced by a corresponding
amount by way of an amendment of the Articles of Association.
Dividends distributed to a corporate ADS holder that qualifies in respect
of the ADSs for the participation exemption, as defined in the Corporate Income
Tax Act 1969, are exempt from Netherlands dividend withholding tax.
Generally, an ADS holder that is resident, or is deemed to be resident, in
The Netherlands will be allowed a credit against Netherlands income tax or
corporate income tax for the tax withheld on dividends paid in respect of the
ADSs. A legal entity resident in The Netherlands that is not subject to
Netherlands corporate income tax may, under certain conditions, request a refund
of the tax withheld.
An ADS holder resident outside The Netherlands may be entitled to a full or
partial exemption from or refund of Netherlands dividend withholding tax under
an applicable double taxation convention depending on its terms and conditions
and subject to compliance by the ADS holder with those terms and conditions.
An ADS holder resident in the United States may be entitled to a reduction
of The Netherlands dividend withholding tax, in general to 15 percent, under the
double tax convention between The Netherlands and the United States with respect
to income ("the Treaty") subject to compliance by the ADS holder with the
applicable terms and conditions of the Treaty. Generally, a holder of the ADSs
will qualify for benefits under the Treaty (subject to compliance with the
procedures for claiming benefits) if the holder:
(1) is the beneficial owner of the dividends paid;
(2) is resident in the United States according to the Treaty;
(3) does not hold the ADSs in connection with the conduct of business
in The Netherlands; and
(4) is not restricted in claiming the benefits of the Treaty under
article 26 (Limitation on Benefits).
Dividends paid in respect of the ADS's to an exempt pension trust or
similar organisation, may qualify for an exemption from or, as the case may be,
a complete refund of Netherlands dividend withholding tax under the Treaty,
subject to compliance with the applicable terms and conditions.
On August 31, 2001, the Minister of Finance sent a Bill to Parliament in
respect of dividend stripping transactions. On April 27, 2001, anti abuse
provisions regarding dividend stripping were already announced by the Minister
of Finance. If the Bill is approved by Parliament the anti abuse provisions
enter into force retroactively as of April 27, 2001. On the basis of the new
provisions in the Bill, an ADS holder is only entitled to a full or partial
exemption from Netherlands withholding tax on the basis of The Netherlands
Dividend Withholding Tax Act 1965 if the ADS holder that is entitled to the
dividends paid in respect of the ADSs is the beneficial owner of the dividends.
An ADS holder is only entitled to a full or partial exemption from, a reduction
or refund of Netherlands withholding tax under an applicable double taxation
convention or under the Tax Arrangement for the Kingdom of The Netherlands if
the ADS holder that is entitled to the dividends paid in respect of the ADSs is
the beneficial owner of the paid dividends.
An ADS holder that is resident, or is deemed to be resident, in The
Netherlands will only be allowed a credit against Netherlands income tax or
corporate income tax for the tax withheld on dividends paid in
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respect of the ADSs if the ADS holder that is entitled to the dividends is the
beneficial owner of the dividends. A legal entity resident in The Netherlands
that is not subject to Netherlands corporate income tax may only request a
refund of the dividend tax withheld if that legal entity is the beneficial owner
of the dividends.
In the new provisions it is stated under what circumstances the taxpayer is
not considered to be the beneficial owner.
A U.S. shareholder (other than an exempt organization) generally may claim
the benefits of a reduced withholding rate pursuant to the Treaty by submitting
a Form IB 92 USA, which form includes a banker's affidavit stating that the ADSs
are in the bank's custody in the name of the applicant, or that the ADSs have
been exhibited to the bank as being the property of the applicant. If the Form
IB 92 USA is submitted prior to the dividend payment date, the reduced
withholding tax rate can be applied to the dividend. A U.S. shareholder unable
to claim withholding tax relief in this manner can obtain a refund of excess tax
by filing a Form IB 92 USA and describing the circumstances that prevented a
claim for withholding tax relief at source. A special provision may be
applicable to pension trusts or companies that are generally exempt from tax in
the state of residency, on the basis of which dividends and interests derived by
such an entity are exempt under certain conditions.
Qualifying exempt organizations (other than exempt pension trusts) may seek
a refund of the tax withheld by submitting Form IB 92 USA, which also includes a
banker's affidavit.
There is currently an arrangement with The Netherlands Ministry of Finance
under which U.S. holders of outstanding American Depositary Receipts (but not
holders of bearer receipts) of ING Groep N.V. may obtain the lower 15%
withholding tax rate under the Treaty without filing the forms described above.
The arrangement also applies to exempt pension trusts but not to other exempt
organizations. ING Groep N.V. intends to enter into similar arrangements with
respect to the ADSs evidenced by ADRs. Any such arrangement may not apply to
U.S. Shareholders who own bearer receipts.
SURTAX
The Company may be subject to a surtax at the rate of 20 percent to the
extent that "excessive" profit distributions are made in the period from January
1, 2001 up to and including December 31, 2005. The Netherlands tax authorities
hold the view that this surtax constitutes a corporate income tax not a
withholding tax. For purposes of the surtax, profit distributions (to be
understood in its widest sense, and including distributions in cash, liquidation
proceeds and proceeds from the redemption of shares) are considered to be
"excessive" to the extent that, during a particular calendar year, the total
amount of profit distributions exceeds the highest of the following three
amounts:
(1) four percent of the fair market value of the issued share capital
of the Company at the beginning of the relevant calendar year;
(2) twice the amount of the average annual profit distributions made
by the Company, on the basis of a consistent policy, during the three
calendar years prior to January 1, 2001; and
(3) the adjusted profits (as defined in the "surtax" provisions) of
the Company for the preceding book year.
The surtax due will be reduced pro rata to the extent that the ADSs have
been held, at the time of the distribution, for an uninterrupted period of at
least three years by individuals or legal entities (other than investment
institutions as defined in the Corporate Income Tax Act 1969) holding at least 5
percent of the Company's nominal paid-in capital, provided such individuals or
legal entities are resident in The Netherlands, the Netherlands Antilles or
Aruba, a Member State of the European Union or a country with which The
Netherlands has concluded a convention for the avoidance of double taxation. For
purposes of satisfying the above-mentioned three year period, consecutive
ownership periods by different qualifying ADS holders may be cumulated.
72
No surtax is levied insofar as the total of the profit distributions made
during the period from January 1, 2001, through December 31, 2005, exceed the
balance of assets, liabilities and provisions, calculated on the basis of the
fair market value, less the fiscally recognized paid-in capital at the end of
the last financial year which closes before January 1, 2001.
TAXES ON INCOME AND CAPITAL GAINS
A holder of an ADS, who derives income from such ADS or who realizes a gain
on the disposal or redemption of an ADS, will not be subject to Dutch taxation
on income or capital gains, other than the dividend withholding tax described
above, unless:
a) the holder is, or is deemed to be, resident in The Netherlands;
b) such income or gain is attributable to an enterprise or part
thereof which is carried on through a permanent establishment or a
permanent representative in The Netherlands;
c) the holder has a substantial interest, whether deemed or actual, in
ING Groep N.V. and that substantial interest does not form part of the
business assets of the holder; or
d) the holder is an individual and such income or gain is attributable
to his activities in The Netherlands, other than business or employment
activities ("belastbaar resultaat uit overige werkzaamheden in Nederland").
Under the Income Tax Act of 2001,three different categories of taxable
income can be distinguished; one of them is concerned with capital income, i.e.,
income from savings and investment. Taxable income is determined on the basis of
a presumptive, or deemed, return on capital, rather than on the basis of actual
income (such as interest actually received). At present, this deemed return has
been fixed at 4% of average net capital, that is, assets less qualifying
liabilities. The average net capital is determined as the net capital on January
1 and December 31, divided by 2. The 4% is applied after deduction of an exempt
amount of EUR 18,146. The deemed income is then taxed at a flat rate of 30%.
A holder of an ADS will not be subject to taxation on income from savings
and investment, unless the holder is an individual who is, or is deemed to be,
resident in The Netherlands.
GIFT, ESTATE OR INHERITANCE TAX
There will be no Dutch gift, estate or inheritance taxes levied on the
transfer of an ADS by way of gift by a holder, or upon the death of a holder,
unless:
- the holder is, or is deemed to be, resident in The Netherlands;
- the transfer is construed as an inheritance or as a gift made by or on
behalf of a person who, at the time of the gift or death, is, or is
deemed to be, resident in The Netherlands; or
- such ADS is attributable to an enterprise or part thereof, which is
carried on through a permanent establishment or a permanent
representative in The Netherlands.
VALUE-ADDED TAX
No value-added tax will be due in The Netherlands in respect of payments
made in consideration for the issue of the Debt Securities, whether in respect
of payments of interest and principal or in respect of the transfer of a Debt
Security.
CAPITAL TRANSFER TAX
Dutch capital transfer tax will be due by ING Groep N.V. at the rate of
0.55 percent of the higher of 1) the fair market value of any contribution to
the capital of ING Groep N.V. upon the issuance of ADSs; or 2) the nominal value
of the issued ADSs.
73
OTHER TAXES
There will be no registration tax, customs duty, stamp duty, property
transfer tax or any other similar tax or duty due in The Netherlands by the
holder of an ADS in respect of or in connection with the subscription, issue,
placement, allotment or delivery of the ADSs.
FINALLY
A holder of an ADS will not become, or deemed to be, resident in The
Netherlands by sole reason of holding such an ADS.
74
ERISA CONSIDERATIONS
A fiduciary of a pension, profit-sharing or other employee benefit plan
subject to the Employment Retirement Income Security Act of 1974, as amended
("ERISA"), should consider the fiduciary standards of ERISA in the context of
the plan's particular circumstances before authorizing an investment in debt
securities or ADRs. Among other factors, the fiduciary should consider whether
the investment would satisfy the prudence and diversification requirements of
ERISA and would be consistent with the documents and instruments governing the
plan.
Section 406 of ERISA and Section 4975 of the Code prohibit an employee
benefit plan, as well as individual retirement accounts and Keogh plans subject
to Section 4975 of the Code, from engaging in certain transactions involving
"plan assets" with persons who are "parties in interest" under ERISA or
"disqualified persons" under the Code with respect to the plan. A violation of
these "prohibited transaction" rules may result in excise tax or other
liabilities under ERISA and Section 4975 of the Code for such persons, unless
exemptive relief is available under an applicable statutory or administrative
exemption. Therefore, a fiduciary of an employee benefit plan should also
consider whether an investment in debt securities or ADRs might constitute or
give rise to a prohibited transaction under ERISA and the Internal Revenue Code.
Employee benefit plans which are governmental plans (as defined in Section 3(32)
of ERISA), certain church plans (as defined in Section 3(33) of ERISA), and
foreign plans (as described in Section 4(b)(4) of ERISA) generally are not
subject to the requirements of ERISA or Section 4975 of the Code.
We and certain of our subsidiaries could be a party in interest or
disqualified person with respect to an employee benefit plan. Special caution
should be exercised in that event, before debt securities or ADRs are purchased
by the plan. In particular, the fiduciary of the plan should consider whether
exemptive relief is available under an applicable administrative exemption. The
Department of Labor has issued five prohibited transaction class exemptions that
could apply to exempt the purchase, sale and holding of debt securities or ADRs
from the prohibited transaction provisions of ERISA and the Code. Those class
exemptions are Prohibited Transaction Exemption 96-23 (for transactions
determined by in-house asset managers), Prohibited Transaction Exemption 95-60
(for certain transactions involving insurance company general accounts),
Prohibited Transaction Exemption 91-38 (for certain transactions involving bank
investment funds), Prohibited Transaction Exemption 90-1 (for certain
transactions involving insurance company separate accounts), and Prohibited
Transaction Exemption 84-14 (for certain transactions determined by independent
qualified asset managers).
Because of the complexity of these rules and the penalties that may be
imposed upon persons involved in non-exempt prohibited transactions, it is
particularly important that fiduciaries or other persons considering purchasing
debt securities or ADRs on behalf of or with "plan assets" of any employee
benefit plan consult with their counsel regarding the consequences under ERISA
and the Code of the acquisition of debt securities or ADRs and the availability
of exemptive relief under Prohibited Transaction Exemption 96-23, 95-60, 91-38
or 84-14.
75
PLAN OF DISTRIBUTION
We may sell the securities from time to time in their initial offering as
follows:
- through agents;
- to dealers or underwriters;
- directly to purchasers; or
- through a combination of any of these methods of sale.
In addition, we may issue the securities as a dividend or distribution or
in a subscription rights offering to our existing securityholders. In some
cases, we may also repurchase securities and reoffer them to the public by one
or more of the methods described above.
The securities we distribute by any of these methods may be sold to the
public, in one or more transactions, either:
- at a fixed price or prices, which may be changed;
- at market prices prevailing at the time of sale;
- at prices related to prevailing market prices; or
- at negotiated prices.
We may solicit offers to purchase the securities directly from the public
from time to time. We may also designate agents from time to time to solicit
offers to purchase securities from the public on our behalf. The prospectus
supplement relating to any particular offering of securities will name any
agents designated to solicit offers, and will include information about any
commissions we may pay the agents, in that offering. Agents may be deemed to be
"underwriters" as that term is defined in the Securities Act.
From time to time, we may sell securities to one or more dealers as
principals. The dealers, who may be deemed to be "underwriters" as that term is
defined in the Securities Act, may then resell those securities to the public.
We may sell securities from time to time to one or more underwriters, who
would purchase the securities as principal for resale to the public, either on a
firm-commitment or best-efforts basis. If we sell securities to underwriters, we
will execute an underwriting agreement with them at the time of sale and will
name them in the applicable prospectus supplement. In connection with those
sales, underwriters may be deemed to have received compensation from us in the
form of underwriting discounts or commissions and may also receive commissions
from purchasers of the securities for whom they may act as agents. Underwriters
may resell the securities to or through dealers, and those dealers may receive
compensation in the form of discounts, concessions or commissions from the
underwriters and/or commissions from purchasers for whom they may act as agents.
The applicable prospectus supplement will include information about any
underwriting compensation we pay to underwriters, and any discounts, concessions
or commissions underwriters allow to participating dealers, in connection with
an offering of debt securities.
If we offer securities in a subscription rights offering to our existing
securityholders, we may enter into a standby underwriting agreement with
dealers, acting as standby underwriters. We may pay the standby underwriters a
commitment fee for the securities they commit to purchase on a standby basis. If
we do not enter into a standby underwriting arrangement, we may retain a
dealer-manager to manage a subscription rights offering for us.
Underwriters, dealers, agents and other persons may be entitled, under
agreements that they may enter into with us, to indemnification by us against
civil liabilities, including liabilities under the Securities Act.
In connection with an offering, the underwriters may purchase and sell
securities in the open market. These transactions may include short sales,
stabilizing transactions and purchases to cover positions created
76
by short sales. Short sales involve the sale by the underwriters of a greater
number of securities than they are required to purchase in an offering.
Stabilizing transactions consist of certain bids or purchases made for the
purpose of preventing or retarding a decline in the market price of the
securities while an offering is in progress.
The underwriters may also impose a penalty bid. This occurs when a
particular underwriter repays to the underwriters a portion of the underwriting
discount it received because the underwriters have repurchased securities sold
by or for the account of that underwriter in stabilizing or short-covering
transactions.
The underwriters, dealers and agents, as well as their associates, may be
customers of or lenders to, and may engage in transactions with and perform
services for, ING Group.
ING Financial Markets LLC is an affiliate of ING Groep N.V. and may
participate as an underwriter in distribution of securities issued pursuant to
this prospectus. Rule 2720 of the Conduct Rules of the National Association of
Securities Dealers, Inc. imposes certain requirements when an NASD member such
as ING Financial Markets LLC distributes an affiliated company's securities. ING
Financial Markets LLC has advised ING Groep N.V. that any offering in which ING
Financial Markets LLC acts as an underwriter will comply with the applicable
requirements of Rule 2720.
The maximum compensation we pay to underwriters in connection with any
offering of the securities will not exceed 8% of the maximum proceeds of such
offering. All post-effective amendments or prospectus supplements disclosing the
actual price and selling terms of each offering of the securities will be
submitted to the NASD Corporate Financing Department at the same time they are
filed with the SEC. The NASD Corporate Financing Department will be advised if,
subsequent to the filing of any offering of the securities, any of our 5% or
greater shareholders is or becomes an affiliate or associated person of an NASD
member participating in the distribution of such securities. All NASD members
participating in offerings of the securities understand the requirements that
have to be met in connection with SEC Rule 415 and Notice to Members 88-101.
If so indicated in the prospectus supplement, we will authorize dealers or
other persons acting as our agent to solicit offers by some institutions to
purchase securities from us pursuant to contracts providing for payment and
delivery on a future date. Institutions with which these contracts may be made
include commercial and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions and others.
VALIDITY OF THE SECURITIES
Sullivan & Cromwell, New York, New York, our U.S. counsel, and Davis Polk &
Wardwell, U.S. counsel for any Underwriters, will pass on the validity of the
ADSs and certain other legal matters. Our General Counsel will pass on the
validity of the Ordinary Shares and the bearer receipts.
De Brauw Blackstone Westbroek N.V., Amsterdam, The Netherlands, will pass
on certain matters relating to the validity of the debt securities. Sullivan &
Cromwell and Davis Polk & Wardwell will pass on certain other matters relating
to the validity of the debt securities.
KPMG Meijburg & Co., Amsterdam, The Netherlands, will pass on certain Dutch
tax matters for us.
Sullivan & Cromwell and Davis Polk & Wardwell may rely upon De Brauw
Blackstone Westbroek N.V., with respect to all matters of Dutch law.
77
EXPERTS
The Consolidated Financial Statements of the Group as of December 31, 2001
and 2000 and for each of the years in the three-year period ended December 31,
2001 incorporated by reference into this prospectus and the Registration
Statement have been audited by Ernst & Young Accountants, independent auditors,
as set forth in their report thereon incorporated by reference herein. Their
report is based in part on the report of KPMG Accountants N.V., independent
auditors, that is incorporated by reference herein, which, as to the years 2001,
2000 and 1999, is based upon the report of other auditors including the report
of Ernst & Young Reviseurs d'Enterprises S.C.C., Independent Auditors, that is
incorporated by reference herein. The financial statements referred to above are
included in reliance upon such reports given on the authority of such firms as
experts in auditing and accounting.
EXPENSES
The following are the estimated expenses, other than any underwriting
discounts and commission and expenses reimbursed by the Registrants, to be
incurred in connection with the issuance and distribution of the securities
registered under this Registration Statement:
Securities and Exchange Commission registration fees........ $ 276,000
New York Stock Exchange and Luxembourg Stock Exchange
listing fees.............................................. 50,000
Printing and engraving expenses............................. 400,000
Blue Sky fees and expenses.................................. 10,000
Legal fees and expenses..................................... 325,000
Accountants' fees and expenses.............................. 150,000
Trustee fees and expenses................................... 15,000
Rating agency fees.......................................... 250,000
Total....................................................... $1,476,000
NOTICES
All notices will be deemed to have been given upon:
- the mailing by first class mail, postage prepaid, of those notices to
holders of securities at their registered addresses as recorded in the
register of holders of such securities; and
- so long as any securities are listed on the Luxembourg Stock Exchange and
it is required by the rules of the Luxembourg Stock Exchange, publication
of the notice to the holders of the trust preferred securities in English
in a leading newspaper having general circulation in Luxembourg, which is
expected to be the Luxemburger Wort, or, if publication in that type of
newspaper is not practicable, in one other leading English language daily
newspaper with general circulation in Europe that is published on each
business day in morning editions, whether or not it is published in
Saturday, Sunday or holiday editions.
78
PRINCIPAL EXECUTIVE OFFICE OF ING GROEP N.V.
ING GROEP N.V.
STRAWINSKYLAAN 2631
1077 ZZ AMSTERDAM
P.O. BOX 810, 1000 AV AMSTERDAM
THE NETHERLANDS
LEGAL ADVISORS TO THE REGISTRANT
AS TO U.S. FEDERAL AND NEW YORK LAW:
SULLIVAN & CROMWELL LLP
125 BROAD STREET
NEW YORK, NEW YORK 10004
U.S.A.
AS TO DUTCH CIVIL & CORPORATE LAW:
DE BRAUW BLACKSTONE WESTBROEK N.V.
TRIPOLIS 300
BURGERWEESHUISPAD 301
1076 HR AMSTERDAM
THE NETHERLANDS
AS TO DUTCH TAX LAW:
KPMG MEIJBURG & CO.
P.O. BOX 74600
1070 DE AMSTERDAM
THE NETHERLANDS
LEGAL ADVISOR TO THE UNDERWRITERS
AS TO U.S. FEDERAL AND NEW YORK LAW:
DAVIS POLK & WARDWELL
450 LEXINGTON AVENUE
NEW YORK, NEW YORK 10017
U.S.A.
AUDITORS
ERNST & YOUNG ACCOUNTANTS
DRENTESTRAAT 20
PO BOX 7883
1008 AB AMSTERDAM
THE NETHERLANDS
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$500,000,000
[ING LOGO]
ING GROEP N.V.
6.20% ING PERPETUAL DEBT SECURITIES
-----------------------------------------
PROSPECTUS SUPPLEMENT
-----------------------------------------
ING FINANCIAL MARKETS
MORGAN STANLEY
CITIGROUP
MERRILL LYNCH & CO.
UBS INVESTMENT BANK
WACHOVIA SECURITIES
GOLDMAN, SACHS & CO.
HSBC
OCTOBER 17, 2003
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