ING Direct 2008 Annual Report Download - page 124

2.1 Consolidated annual accounts
Depositary receipts for ordinary shares
More than 99% of the ordinary shares issued by ING Groep N.V. are held by Stichting ING Aandelen (ING Trust Office). In exchange for
these shares, the Trust Office has issued depositary receipts in bearer form for ordinary shares. The depositary receipts are listed on various
stock exchanges. Depositary receipts can be exchanged for (non-listed) ordinary shares without any restriction.
The holder of a depositary receipt is entitled to receive from the Trust Office payment of dividends and distributions corresponding
to the dividends and distributions received by the Trust Office on an ordinary share.
In addition, the holder of a depositary receipt is entitled to attend and to speak at the General Meeting of Shareholders of ING Groep
N.V. either in person or by proxy. A holder of a depositary receipt, who thus attends the General Meeting of Shareholders, is entitled to
vote as a proxy of the Trust Office but entirely at his own discretion for a number of shares equal to the number of his depositary receipts.
A holder of depositary receipts who does not attend the General Meeting of Shareholders in person or by proxy is entitled to give a binding
voting instruction to the Trust Office for a number of shares equal to the number of his depositary receipts.
Depositary receipts for ordinary shares held by ING Group (Treasury shares)
As at 31 December 2008, 36.5 million (2007: 126.8 million; 2006: 53.8 million) depositary receipts for ordinary shares ING Groep N.V.
with a par value of EUR 0.24 were held by ING Groep N.V. or its subsidiaries. These depositary receipts for ordinary shares were
purchased to hedge option rights granted to the Executive Board members and other employees.
Restrictions with respect to dividend and repayment of capital
ING Groep N.V. is subject to legal restrictions regarding the amount of dividends it can pay to the holders of its ordinary shares. Pursuant
to the Dutch Civil Code, dividends can only be paid up to an amount equal to the excess of the company’s own funds over the sum of the
paid-up capital and reserves required by law.
Moreover, ING Groep N.V.’s ability to pay dividends is dependent on the dividend payment ability of its subsidiaries. ING Groep N.V. is
legally required to create a non-distributable reserve insofar profits of its subsidiaries are subject to dividend payment restrictions which
apply to those subsidiaries themselves. Such restrictions may among others be of a similar nature as the restrictions which apply to ING
Groep N.V. Furthermore there can be restrictions as a result of minimum capital requirements that are imposed by industry regulators in
the countries in which the subsidiaries operate, or other limitations which may exist in certain countries.
Without prejudice to the authority of the Executive Board to allocate profits to reserves and to the fact that the ordinary shares are the
most junior securities issued by ING Groep N.V., no specific dividend payment restrictions with respect to ordinary shares exist.
Furthermore, ING Groep N.V. is subject to legal restrictions with respect to repayment of capital to holders of ordinary shares. Capital
may be repaid to the holders of ordinary shares pursuant to an amendment of ING Groep N.V.’s Articles of Association whereby the
ordinary shares are written down.
Pursuant to the Dutch Civil Code, capital may only be repaid if none of ING Groep N.V.’s creditors opposes such a repayment within two
months following the announcement of a resolution to that effect.
On a distribution of a dividend ING Groep N.V. is in principle required to withhold an income tax on dividends at a rate of 15%.
B warrants
In 1998, ING Groep N.V. authorised the issue of a maximum of 17,317,132 B warrants, of which 17,220,200 were issued. On 5 January
2008 of the remaining 9,266,097 warrants, 259,484 warrants expired and 9,006,613 were exercised. Accordingly no B warrants were
outstanding anymore as at 31 December 2008 (2007: 9,266,097; 2006: 17,157,891). B warrant holders were entitled to obtain from
ING Groep N.V., for a fixed price, depositary receipts for ordinary shares in the proportion of one B warrant to two depositary receipts.
B warrant holders could exercise their rights at their own discretion but no later than 5 January 2008.
The closing date for exercising warrants B was 5 January 2008. The exercise price of warrants B was EUR 49.92 for two depositary
receipts.
Non-voting equity securities
On 12 November 2008, ING Groep N.V. issued EUR 10 billion non-voting equity securities to the Dutch government. This was effected by
issuing one billion securities with an issue price of EUR 10 each. The nominal value of each security is EUR 0.24.
Notes to the consolidated balance sheet of ING Group (continued)
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