ING Direct 2013 Annual Report Download - page 66

members who are independent of ING Group. No Executive Board
member or former Executive Board member, Supervisory Board
member or former Supervisory Board member, ING Group
employee or former ING Group employee or permanent advisor or
former permanent advisor to ING Group is on the Board of ING
Continuity Foundation. The Board of ING Continuity Foundation
appoints its own members, after consultation with the Supervisory
Board of ING Group, but without any requirement for approval by
ING Group. For more information on ING Continuity Foundation,
see page 77.
DEPOSITARY RECEIPTS
More than 99.9% of the issued ordinary shares are held by ING
Trust Office (Stichting ING Aandelen). In exchange for these shares,
ING Trust Office has issued depositary receipts in bearer form for
these shares. The depositary receipts are listed on various stock
exchanges (see page 10 for an overview of the listings). Depositary
receipts can be exchanged upon request of the holders of
depositary receipts for non-listed ordinary shares, without any
restriction, other than payment of an administrative fee of one
eurocent (EUR 0.01) per depositary receipt with a minimum of
twenty-five euros (EUR 25.00) per exchange transaction.
The holder of a depositary receipt is entitled to receive from ING
Trust Office payment of dividends and other distributions
corresponding to the dividends and other distributions received by
ING Trust Office on an ordinary share.
The Board of ING Trust Office currently comprises six members who
are independent from ING Group. No Executive Board member or
former Executive Board member, Supervisory Board member or
former Supervisory Board member, ING Group employee or former
ING Group employee or permanent advisor or former permanent
advisor to ING Group is on the Board of ING Trust Office. The
Board of ING Trust Office appoints its own members, without any
requirement for approval by ING Group.
The Board of ING Trust Office reports on its activities through an
annual report, which has been included on pages 74-76.
ISSUANCE OF SHARES
ING Group’s authorised capital is the maximum amount of capital
allowed to be issued under the terms of the Articles of Association.
New shares in excess of this amount can only be issued if the
Articles of Association are amended. For reasons of flexibility, ING
Group seeks to set the authorised capital in the Articles of
Association at the highest level permitted by law.
Share issuances are to be decided by the General Meeting, which
may also delegate its authority. Each year, the General Meeting
isasked to delegate authority to the Executive Board to issue
newordinary shares or to grant rights to subscribe for new ordinary
shares, both with and without pre-emptive rights to existing
shareholders. The powers delegated to the Executive Board
arelimited:
• in time: powers are delegated for a period of 18 months;
• by number: insofar as a sufficient number of unissued ordinary
shares is available in the authorised capital, ordinary shares may
be issued up to a maximum of 10% of the issued share capital,
or, in the event of a merger or takeover or to safeguard or
conserve the capital position of ING Group, up to a maximum of
20% of the issued capital; and
under the Corporate Governance Code, however, differs in its
details from the definitions of independence under the NYSE
listing standards. In some cases, the Dutch requirements are
stricter and in other cases the NYSE listing standards are the
stricter of the two. The Audit Committee, Risk Committee,
Remuneration Committee, Nomination Committee and
Corporate Governance Committee of ING Group are comprised
of members of the Supervisory Board. Furthermore, a temporary
committee, the Insurance Europe Committee, was established
on 1October 2013. This Committee is also comprised of
members of the Supervisory Board and assists the Supervisory
Board with the performance of its duties in relation to the
preparation and execution of the initial public offering process
and/or spin-off of (part of) NN Group.
• In contrast to the Sarbanes-Oxley Act of 2002, the Corporate
Governance Code contains a “comply-or-explain” principle,
offering the possibility to deviate from the Corporate
Governance Code as long as any such deviations are explained.
To the extent that such deviations are approved by the General
Meeting, the company is deemed to be in full compliance with
the Corporate Governance Code.
• Dutch law requires that ING Group’s external auditors be
appointed at the General Meeting and not by the Audit
Committee. In addition, new legislation on the accountancy
profession (Wet op het accountantsberoep) will establish a
system of mandatory audit firm rotation by 1 January 2016.
• The articles of association of ING Group (‘Articles of
Association’) provide that there are no quorum requirements to
hold a General Meeting, although certain shareholder actions
and certain resolutions may require a quorum.
• The shareholder approval requirements for equity compensation
plans under Dutch law and the Corporate Governance Code
differ from those applicable to US companies which are subject
to NYSE’s listing rules that require a shareholder vote on all
equity compensation plans applicable to any employee, director
or other service provider of a company. The results of such votes
are advisory in nature rather than binding. Under Dutch
company law and the Corporate Governance Code, binding
shareholder approval is only required for equity compensation
plans (or changes thereto) for members of the executive board
and supervisory board, and not for equity compensation plans
for other groups of employees.
CAPITAL AND SHARES
CAPITAL STRUCTURE, SHARES
The authorised capital of ING Group consists of ordinary shares and
cumulative preference shares. Currently, only ordinary shares are
issued, while a call option to acquire cumulative preference shares
has been granted to ING Continuity Foundation (Stichting
Continuïteit ING). The acquisition of cumulative preference shares
pursuant to the call option is subject to the restriction that,
immediately after the issuance of cumulative preference shares, the
total amount of cumulative preference shares outstanding may not
exceed one-third of the total issued share capital of ING Group (see
page 77). The purpose of this call option is to protect the
independence, the continuity and the identity of ING Group against
influences which are contrary to the interests of ING Group, its
enterprise and the enterprises of its subsidiaries and all stakeholders
(including, but not limited to, hostile takeovers). The ordinary shares
are not used for protective purposes. The ordinary shares, which
are all registered shares, are not listed on a stock exchange.
The Board of ING Continuity Foundation currently comprises four
64 ING Group Annual Report 2013
Corporate governance continued