UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

 

 

FORM 6-K

 

 

Report of Foreign Private Issuer

Pursuant to Rule 13a-16 or 15d-16

of the Securities Exchange Act of 1934

For 16 April, 2015

Commission File Number 1-14642

 

 

ING Groep N.V.

 

 

Bijlmerplein 888

1102 MG Amsterdam

The Netherlands

 

 

Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F.

Form 20-F  x            Form 40-F  ¨

Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T rule 101(b)(1):  ¨

Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T rule 101(b)(7):  ¨

THIS REPORT ON FORM 6-K (EXCEPT FOR THE EXPECTED SECURITIES RATINGS SPECIFIED IN THE UNDERWRITING AGREEMENT IN SCHEDULE 3 OF EXHIBIT 1.1 TO THIS FORM 6-K) SHALL BE DEEMED TO BE INCORPORATED BY REFERENCE IN THE REGISTRATION STATEMENT ON FORM F-3 (FILE NO. 333- 202880) OF ING GROEP N.V. AND TO BE A PART THEREOF FROM THE DATE ON WHICH THIS REPORT IS FURNISHED, TO THE EXTENT NOT SUPERSEDED BY DOCUMENTS OR REPORTS SUBSEQUENTLY FILED OR FURNISHED.

 

 

 


SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

ING Groep N.V.
(Registrant)
By: 

/s/ J.D. Wolvius

Name: J.D. Wolvius

Title: Head of Capital Management
By: 

/s/ P.G. van der Linde

Name: P.G. van der Linde
Title: Senior Legal Counsel

Dated: April 16, 2015

Signature page to Form 6-K


This Report contains the following:

 

Exhibit
No.

    
1.1    Underwriting Agreement among ING Groep N.V. and Citigroup Global Markets Inc., ING Financial Markets LLC, J.P. Morgan Securities LLC and UBS Securities LLC, as representatives of the several underwriters named therein, dated April 9, 2015.
4.1    Capital Securities Indenture between ING Groep N.V. and The Bank of New York Mellon, London Branch, as Trustee, dated April 16, 2015.
4.2    First Supplemental Indenture between ING Groep N.V. and The Bank of New York Mellon, London Branch, as trustee, dated April 16, 2015, in respect of 6.000% Perpetual Additional Tier 1 Contingent Convertible Capital Securities.
4.3    Second Supplemental Indenture between ING Groep N.V. and The Bank of New York Mellon, London Branch, as trustee, dated April 16, 2015, in respect of 6.500% Perpetual Additional Tier 1 Contingent Convertible Capital Securities.
4.4    The form of Global Note for the $1,000,000,000 6.000% Perpetual Additional Tier 1 Contingent Convertible Capital Securities (incorporated by reference to Exhibit A to Exhibit 4.2 above).
4.5    The form of Global Note for the $1,250,000,000 6.500% Perpetual Additional Tier 1 Contingent Convertible Capital Securities (incorporated by reference to Exhibit A to Exhibit 4.3 above).
5.1    Opinion of Linklaters LLP as to the validity of the securities (Dutch law).
5.2    Opinion of Sullivan & Cromwell LLP as to the validity of the securities (New York law).
8.1    Opinion of PwC Belastingadviseurs N.V. as to certain matters of Dutch taxation.
8.2    Opinion of Sullivan & Cromwell LLP as to certain matters of U.S. taxation.


Exhibit 1.1

ING GROEP N.V.

UNDERWRITING AGREEMENT

DATED: APRIL 9, 2015


TABLE OF CONTENTS

 

 

 

    PAGE  

1.

Representations and Warranties by the Company

  3   

2.

Sale and Delivery to Underwriters; Closing

  9   

3.

Covenants of the Company

  11   

4.

Payment of Expenses

  15   

5.

Conditions of Underwriters’ Obligations

  16   

6.

Indemnification

  18   

7.

Contribution

  21   

8.

Representations, Warranties and Agreements to Survive Delivery

  22   

9.

Termination of Agreement

  22   

10.

Default by one or more of the Underwriters

  23   

11.

Arm’s Length Relationship; No Fiduciary Duty

  23   

12.

Notices

  24   

13.

Parties

  24   

14.

Governing Law, Submission to Jurisdiction

  24   

15.

Judgment Currency

  25   

16.

Effect of Headings

  25   

Schedule 1

  28   

Schedule 2

Issuer Free Writing Prospectus

  29   

Schedule 3

Final Term Sheet ING GROEP N.V.

  30   

Schedule 4

Underwriter Information

  34   

Exhibit 1

Form of Opinion of Dutch Counsel to the Company

  I-1   

Exhibit 2

Form of Opinion of Office of General Counsel to the Company

  II-1   

Exhibit 3

Form of Opinion of U.S. Counsel to the Company

  III-1   

Exhibit 4

Form of Opinion of Dutch Tax Counsel to the Company

  IV-1   

 

 

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ING GROEP N.V.

(a limited liability company with corporate seat

in Amsterdam, The Netherlands)

6.000% Perpetual Additional Tier 1 Contingent Convertible Capital Securities

US$1,000,000,000

6.500% Perpetual Additional Tier 1 Contingent Convertible Capital Securities

US$1,250,000,000

Underwriting Agreement

April 9, 2015

Citigroup Global Markets Inc.

ING Financial Markets LLC

J.P. Morgan Securities LLC

UBS Securities LLC

As representatives (the “Representatives”) of the several Underwriters

named in Schedule 1 hereto.

Ladies and Gentlemen:

ING Groep N.V., a public limited liability company incorporated under the laws of The Netherlands (the “Company”), confirms its agreement (this “Agreement”) with Citigroup Global Markets Inc. (“Citigroup”), ING Financial Markets LLC (“ING Financial”), J.P. Morgan Securities LLC (“J.P. Morgan”), UBS Securities LLC (“UBS”) and each of the other Underwriters named in Schedule 1 hereto (collectively, the “Underwriters,” which term shall also include any underwriter substituted as provided in Section 10 hereof), for whom Citigroup, ING Financial, J.P. Morgan and UBS are acting as representatives (in such capacity, hereinafter referred to as the “Representatives”), with respect to the sale by the Company and the purchase by the Underwriters, acting severally and not jointly, of the respective principal amount of the Company’s 6.000% Perpetual Additional Tier 1 Contingent Convertible Capital Securities (the “6.000% Securities”) and 6.500% Perpetual Additional Tier 1 Contingent Convertible Capital Securities (the “6.500% Securities” and, together with the 6.000% Securities, the “Securities”), convertible in accordance with their terms into ordinary shares (“Ordinary Shares”) of the Company represented by bearer depositary receipts (“BDRs”) of Stichting ING Aandelen (the “Trust”) for such Ordinary Shares (the “Conversion Securities”), set forth opposite their names in Schedule 1 hereto.

The Securities will be issued pursuant to the Capital Securities Indenture (the “Original Indenture”) between the Company and The Bank of New York Mellon, London Branch, as indenture trustee (the “Indenture Trustee”), as supplemented by the First Supplemental Indenture (the “Supplemental Indenture” and, together with the Original Indenture, the “Indenture”), in each case to be dated as of the date on which the Closing Time referred to in Section 2(c) hereof occurs (such date, the “Closing Date”).

The Company understands that the Underwriters propose to make a public offering of the Securities as soon as the Representatives deem advisable after this Agreement has been executed and delivered.

 

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The Company has filed with the Securities and Exchange Commission (the “Commission”) an automatic shelf registration statement on Form F-3 (No. 333-202880) covering the registration of various types of securities under the 1933 Act, including the Securities. As used in this Agreement, the following terms have the following meanings:

1933 Act” means the U.S. Securities Act of 1933, as amended.

1934 Act” means the U.S. Securities Exchange Act of 1934, as amended.

1939 Act” means the U.S. Trust Indenture Act of 1939, as amended.

Basic Prospectus” means the basic prospectus filed as part of the Registration Statement in the form in which it has most recently been filed with the Commission on or prior to the date hereof.

Broadly available road show” means a “bona fide electronic road show” as defined in Rule 433(h)(5) under the 1933 Act that has been made available without restriction to any person.

Free Writing Prospectus” has the meaning set forth in Rule 405 under the 1933 Act.

IFRS” means International Financial Reporting Standards as issued by the International Accounting Standard Board and as adopted by the European Commission.

“Issuer Free Writing Prospectus” has the meaning set forth in Rule 433 under the 1933 Act.

PCAOB” means the United States Public Company Accounting Oversight Board.

Preliminary Prospectus” means any preliminary prospectus specifically relating to the securities in the form filed with the Commission pursuant to Rule 424(b) under the 1933 Act.

Prospectus” means the Basic Prospectus, as supplemented by the prospectus supplement specifically relating to the Securities in the form filed pursuant to Rule 424(b) under the 1933 Act (or in the form first made available to the Underwriters by the Company to meet requests of purchasers pursuant to Rule 173 under the 1933 Act); and any reference herein to the Basic Prospectus, any Preliminary Prospectus, the Time of Sale Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to the applicable form under the 1933 Act, as of the date of such Basic Prospectus, Preliminary Prospectus, Time of Sale Prospectus or Prospectus, as the case may be; any reference to any amendment or supplement to the Basic Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after the date of such Basic Prospectus, Preliminary Prospectus or Prospectus, as the case may be, under the 1934 Act, and incorporated by reference in such Basic Prospectus, Preliminary Prospectus or Prospectus, as the case may be; and any reference to the Prospectus as amended or supplemented shall be deemed to refer to the Prospectus as amended or supplemented in relation to the Securities in the form in which it is filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission under the 1933 Act (the “1933 Act Regulations”), including any documents incorporated by reference therein as of the date of such filing.

Registration Statement” means collectively the various parts of the “automatic shelf registration statement” as defined in Rule 405 under the 1933 Act on Form F-3 (File No. 333-202880) at the time such parts became effective, including all exhibits thereto and the documents

 

2


incorporated by reference in the prospectus contained in the automatic shelf registration statement, but excluding any Statement of Eligibility on Form T-1 and including any prospectus supplement relating to the Securities that is filed with the Commission and deemed by virtue of Rule 430B under the 1933 Act to be part of the Registration Statement; any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual or other report of the Company filed pursuant to Sections 13(a) or 15(d) of the 1934 Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement.

Time of Sale” means 5:40 p.m. (New York time) on April 9, 2015, which occurred prior to the first sale of any Securities by any Underwriter.

Time of Sale Prospectus” means the Preliminary Prospectus dated and filed with the Commission on April 6, 2015, together with the final termsheet set out in Schedule 3 hereof (the “Final Termsheet”).

 

1. REPRESENTATIONS AND WARRANTIES BY THE COMPANY

The Company represents and warrants to each Underwriter as of the date hereof and as of the Closing Time referred to in Section 2(c) hereof (in each case, a “Representation Date”), and agrees with each Underwriter, as follows:

 

  (a) Compliance with Registration Requirements. A Registration Statement in respect of the Securities and the Conversion Securities has been filed with the Commission not earlier than three years prior to the date hereof. The Registration Statement, and any post-effective amendment thereto filed on or prior to the date hereof, became effective on filing under the 1933 Act, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act, no proceedings for that purpose against the Company have been instituted or are pending or, to the knowledge of the Company, are contemplated by the Commission, and no notice of objection that the Commission objects to the use of the Registration Statement as an automatic shelf registration has been received by the Company. The Securities and the Conversion Securities, since their registration on the Registration Statement, have been and remain eligible for registration by the Company on an “automatic shelf registration statement” as defined in Rule 405 under the 1933 Act.

At the respective times the Registration Statement and any post-effective amendment thereto became effective and on each date on which the Prospectus as amended or supplemented is deemed to be a new effective date of the Registration Statement and at each Representation Date, the Registration Statement, and any amendments and supplements thereto complied and will comply in all material respects with the applicable requirements of the 1933 Act and the 1933 Act Regulations and the 1939 Act and the rules and regulations of the Commission under the 1939 Act (the “1939 Act Regulations”), as applicable, and did not, and will not, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. Neither the Prospectus nor any amendment or supplement thereto, at the time the Prospectus or any such amendment or supplement was issued nor the Prospectus as amended or supplemented, as of its date and at each Representation Date, nor the Time of Sale Prospectus as of the Time of Sale and at each Representation Date, included or will include an untrue statement of a material fact or omitted, or will omit, to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The representations and

 

3


warranties in this subsection shall not apply to statements in, or omissions from, the Registration Statement, the Time of Sale Prospectus or the Prospectus, as amended or supplemented, made in reliance upon and in conformity with information furnished to the Company in writing by any Underwriter through the Representatives expressly for use in the Registration Statement, the Time of Sale Prospectus or the Prospectus, as amended or supplemented, which information is listed in its entirety in Schedule 4 hereto (the “Underwriter Information”).

Each Preliminary Prospectus and the Basic Prospectus filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so filed in all material respects with the 1933 Act Regulations.

 

  (b) Status under the 1933 Act. The Company is a “well-known seasoned issuer” and is not an “ineligible issuer”, in each case as defined under Rule 405 under the 1933 Act, in each case at the times specified in the 1933 Act and the 1933 Act Regulations in connection with the offering of the Securities. The Company has paid the registration fee for this offering pursuant to Rule 456(b)(1) under the 1933 Act or will pay such fees within the time period required by such rule (without giving effect to the proviso therein).

 

  (c) Free Writing Prospectus. The Company (including its agents and representatives, other than the Underwriters) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any Free Writing Prospectus other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the 1933 Act; (ii) the documents listed on Schedule 2 hereto and other written communications approved in writing in advance by the Representatives; or (iii) an electronic road show, if any, furnished to the Representatives for their approval before first use. Any such Free Writing Prospectus as of its issue date and at all subsequent times through the completion of the public offer and sale of the Securities, complies or will comply in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations and has been, or will be, filed with the Commission in accordance with the 1933 Act (to the extent required pursuant to Rule 433(d) thereunder).

 

  (d) Incorporated Documents. The documents incorporated or deemed to be incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus, at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the 1933 Act, the 1933 Act Regulations and the 1934 Act and the rules and regulations of the Commission thereunder (the “1934 Act Regulations”), as applicable, and, when read together with the other information in the Time of Sale Prospectus and the Prospectus, at the time the Registration Statement became effective, as of the date of the applicable Time of Sale Prospectus and at the time the Prospectus was issued, did not, and will not, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. The representations and warranties in this subsection shall not apply to statements in, or omissions from, the Registration Statement, the Time of Sale Prospectus or the Prospectus, as amended or supplemented, made in reliance upon and in conformity with the Underwriter Information.

 

4


  (e) Independent Accountants. The independent auditors who certified the financial statements included in the Registration Statement are independent public accountants as required by the PCAOB, the 1933 Act and the 1933 Act Regulations with respect to the Company and its subsidiaries.

 

  (f) Audited Consolidated Financial Statements. The most recently publicly available audited annual consolidated financial statements of the Company were prepared in accordance with IFRS in each case consistently applied and they present fairly the consolidated financial condition of the Company as at the date to which they were prepared (the “relevant date”) and the consolidated results of the operations of the Company for the financial period ended on the relevant date, and there has been no material adverse change in the consolidated financial condition or results of operations of the Company since the relevant date except as disclosed in the Registration Statement, Time of Sale Prospectus and the Prospectus.

 

  (g) Good Standing of the Company. The Company and each of its subsidiaries classified as a “significant subsidiary” as defined under Rule 405 of the 1933 Act Regulations (each a “Significant Subsidiary”) has been duly incorporated under the laws of The Netherlands or its respective jurisdiction of incorporation, as the case may be, except to the extent that the failure to be duly incorporated would not have a material adverse effect on the financial condition and consolidated results of operations of the Company and its subsidiaries, taken as a whole (the “Group”) (a “Material Adverse Effect”). The Company and each of its Significant Subsidiaries is validly existing and in good standing under the laws of its respective jurisdiction of incorporation, is duly qualified to do business and in good standing in each other jurisdiction in which qualification is necessary for the ownership of its respective properties or for the conduct of its respective businesses, except to the extent that the failure to be validly existing, qualified or in good standing would not have a Material Adverse Effect.

 

  (h) The Company has the power and authority necessary to own or hold its properties, to enter into this Agreement and the Indenture, to perform its obligations under the Securities, this Agreement and the Indenture and to conduct the businesses in which it is engaged, as described in the Time of Sale Prospectus, except to the extent that the failure to do so would not have a Material Adverse Effect.

 

  (i) Authorization of Agreement. This Agreement has been duly authorized, executed and delivered (if applicable under applicable law) by the Company.

 

  (j)

Absence of Defaults and Conflicts; Absence of Further Requirements. None of the Company, any of its Significant Subsidiaries or the Trust is in violation of the constituent documents, charter or by-laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company, any such Significant Subsidiary or the Trust is a party or by which any of them may be bound, or to which any of the property or assets of the Company or any such Significant Subsidiary is subject, except a default in performance or observance of an obligation, agreement, covenant or condition that does not have and is not likely to have a Material Adverse Effect. The execution, delivery (if applicable under applicable law) and performance of the Securities, this Agreement and the Indenture by the Company and the consummation

 

5


  of the transactions contemplated hereby and thereby do not and will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, any of its Significant Subsidiaries or the Trust under any material indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Company, any such Significant Subsidiary or the Trust is a party or by which any of them is bound or to which any of their property or assets is subject, except for any such conflict, breach, violation or default which is waived or will not have (A) a material adverse effect on the transactions contemplated by the Securities, this Agreement and the Indenture or (B) a Material Adverse Effect; nor will such actions result in any violation of the provisions of the Articles of Association of the Company, or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its Significant Subsidiaries or any of their properties or assets, except for a violation that will not have a Material Adverse Effect; and, except such as have been obtained or are required under the 1933 Act or the 1933 Act Regulations and the 1934 Act or the 1934 Act Regulations or state securities laws or Dutch laws or regulations, including those of the Dutch Central Bank, under the terms of the Securities in certain circumstances, and the qualification of the Indenture under the 1939 Act, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body or any stock exchange authorities in The Netherlands or the United States is required to be made or obtained by the Company in connection with the offering, issuance, and sale of the Securities or the consummation of the transactions contemplated by this Agreement or the execution, delivery and performance by the Company of the Securities and the Indenture.

 

  (k) No Material Adverse Change. Since the respective dates as of which information is given in the Registration Statement and the Time of Sale Prospectus, except as otherwise stated therein, (i) there has not been any change in the share capital or long-term debt of the Company or any of its subsidiaries that is material to the consolidated financial position of the Company and (ii) there has been no change, or, to the best of the knowledge of the Company, there has been no development involving a prospective change, which is materially adverse to the general business affairs, management, financial condition, shareholders’ equity or results of operations of the Group other than as set forth or contemplated in the Registration Statement or the Time of Sale Prospectus, that has had, or is likely to have, a Material Adverse Effect.

 

  (l) Investment Company Act. The Company is not, and after giving effect to the offering and sale of the Securities and the application of the net proceeds therefrom as described in the forepart of this Agreement and in the Time of Sale Prospectus will not be, required to register as an “investment company” under the Investment Company Act of 1940, as amended (the “1940 Act”).

 

  (m)

Absence of Proceedings. Except as disclosed in the Time of Sale Prospectus, there is no action, suit or proceeding before or by any government, governmental instrumentality or court, domestic or foreign, now pending to which the Company or any of its Significant Subsidiaries is a party or of which any property or assets of any of them is the subject which, if determined adversely to any of them, are likely,

 

6


  individually or in the aggregate, to have a Material Adverse Effect or could adversely affect the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder, and, to the best of the knowledge of the Company, no such proceedings are threatened or contemplated.

 

  (n) Authorization of Indenture. The Indenture has been duly authorized by the Company and, at the Closing Time, will have been executed and delivered by the Company and, assuming due authorization, execution and delivery of the Indenture by the Indenture Trustee, the Indenture will at the Closing Time be a valid and binding obligation of the Company enforceable against it in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors’ rights generally and except to the extent that enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law) (the “Bankruptcy Exceptions”); and at the Closing Time the Indenture will have been duly qualified under the 1939 Act.

 

  (o) Authorization of Securities. At the Closing Time the Securities will have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to the Underwriters against payment of the consideration set forth in this Agreement, will be entitled to the benefits of the Indenture, and will constitute valid and binding obligations of the Company enforceable against it in accordance with their terms, except to the extent that enforcement thereof may be limited by the Bankruptcy Exceptions.

 

  (p) Share Capital. The Company had, at the date indicated, the duly allotted and issued share capital as set forth in the Registration Statement, the Time of Sale Prospectus and the Prospectus; all of the issued share capital of the Company has been duly and validly allotted and issued and is fully paid and non-assessable; and the Ordinary Shares and/or BDRs, as applicable, will conform, when issued by the Company and/or the Trust, as applicable, in all material respects to the descriptions thereof contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus, as amended or supplemented to such date.

 

  (q) Authorization of Ordinary Shares. The Company has taken all necessary action to approve and authorize the issue of Ordinary Shares upon conversion of the Securities, and, when issued upon the conversion of the Securities in accordance with the terms of the Indenture, the Ordinary Shares shall be duly and validly authorized, issued and fully paid, and will not be subject to calls for further funds or pre-emptive rights.

 

  (r) No Consents, Authorizations, etc. No action is required to be taken and no step is required to be taken or done (including without limitation the obtaining of any consent, approval, authorization, license, order, registration or qualification of or with any court or governmental agency or body or the making of any filing or registration) by the Company to effect the transactions contemplated by this Agreement except for those which have been, or will be on or prior to the Closing Date, obtained and are or will on or prior to the Closing Date, be in full force and effect.

 

7


  (s) Fair Summary. The statements set forth in the Time of Sale Prospectus and the Prospectus under the captions “Description of Capital Securities”, “Description of Ordinary Shares”, “Description of the Trust and the Bearer Depositary Receipts” and “Description of American Depositary Shares” in the Basic Prospectus included therein and under the caption “Description of the Securities” in the most recent prospectus supplement included therein, insofar as they purport to constitute a summary of the terms of the Securities and the Indenture, and under the captions “Taxation” and “Netherlands Taxation” in the most recent prospectus supplement included therein, insofar as they purport to describe the provisions of the laws and documents referred to therein, are accurate in all material respects.

 

  (t) Officer’s Certificate. Any certificate signed by an officer of the Company or any of its subsidiaries and delivered to the Underwriters or to counsel for the Underwriters in connection with the offering of the Securities shall be deemed a representation and warranty by the Company to each Underwriter as to the matters covered thereby on the date of such certificate.

 

  (u) Commission Comments. There are no outstanding, unresolved comments made by the staff of the Commission in connection with a review of the Company’s annual report filings under the 1934 Act, except those which (i) were issued less than 180 days before the end of the fiscal year covered by such annual report or (ii) are not material to the Company.

 

  (v) Disclosure Controls and Procedures. The Company maintains disclosure controls and procedures (as such term is defined in Rule 13a-15(e) of the 1934 Act) that comply with the requirements of the 1934 Act; such disclosure controls and procedures have been designed to ensure that material information relating to the Company and its subsidiaries is made known to the Company’s principal executive officer and principal financial officer by others within those entities; and such disclosure controls and procedures are effective.

 

  (w) Sanctions. Except as will be disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus or in connection with any matter disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus, neither the Company nor any of its Significant Subsidiaries, nor to the knowledge of the Company, any director, executive officer, agent, employee of the Company or any Significant Subsidiary is currently the target of any economic sanctions administered or enforced by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), the United Nations Security Councilor the European Union (collectively, the “Sanctions”). The Company will not use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity for the purpose of financing the activities of any person currently the target of any Sanctions (including persons on the Specially Designated Nationals and Blocked Persons list maintained by OFAC) or in any other manner that would, to the Company’s knowledge, result in the violation of Sanctions by any person participating in the offering whether as underwriter, investor, adviser or otherwise.

 

  (x)

Anti-Money Laundering. As at the date hereof, the Company and its subsidiaries have established procedures reasonably designed to ensure compliance in all material respects with the applicable money laundering statutes of all applicable

 

8


  jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any applicable governmental agency (collectively, the “Money Laundering Laws”) and, except as otherwise disclosed in the Registration Statement, Time of Sale Prospectus or the Prospectus, no material action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitration involving the Company or any of its subsidiaries with respect to Money Laundering Laws is pending or, to the knowledge of the Company, threatened, except in each case where such action, suit or proceeding would not have a Material Adverse Effect.

 

  (y) Anti-Bribery and Corruption. Except as disclosed in the Prospectus, neither the Company nor any of its Significant Subsidiaries nor, to the knowledge of the Company, any director, officer, agent, employee or other person associated with or acting on behalf of the Company or any of its Significant Subsidiaries (in each case other than any Underwriter) has (i) used any corporate fund for any contribution, gifts, entertainment or other expense relating to political activity that is unlawful under the law applicable to such person, except in circumstances where such violation would not constitute a Material Adverse Effect, (ii) made any direct or indirect payment to any foreign or domestic government official or employee from corporate funds that is unlawful under the law applicable to such person, except in circumstances where such violation would not constitute a Material Adverse Effect or (iii) to the extent applicable to it, violated or is in violation, of any applicable anti-bribery or anti-corruption law including but not limited to the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act, except in each case to the extent such violation would not constitute a Material Adverse Effect.

 

  (z) Deposit Agreement. The Amended and Restated Deposit Agreement (the “Deposit Agreement”), dated as of February 8, 2013, between the Company and JPMorgan Chase Bank, N.A., as depositary (the “Deposit Agreement”) has been duly authorized, executed and delivered by the Company, and, assuming due authorization, execution and delivery of the Deposit Agreement by the Depositary, constitutes a valid and legally binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforceability, to bankruptcy, insolvency, reorganization and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles; upon issuance by the Depositary of ADRs evidencing ADSs, and the deposit of Ordinary Shares in respect thereof in accordance with the provisions of the Deposit Agreement, such ADRs will be duly and validly issued and the persons in whose names the ADRs are registered will be entitled to the rights specified therein and in the Deposit Agreement; and the Deposit Agreement and the ADRs conform in all material respects to the descriptions thereof contained in the Offering Documents.

 

2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING

 

  (a) Securities. The several commitments of the Underwriters to purchase the Securities shall be deemed to have been made on the basis of the representations and warranties contained herein and shall be subject to the terms and conditions set forth herein.

 

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  (b) Securities. The Company agrees to sell to each Underwriter, severally and not jointly, and each Underwriter agrees, severally and not jointly, to purchase from the Company, at the respective purchase price set forth below, the aggregate principal amounts of the 6.000% Securities and the 6.500% Securities set forth in Schedule 1 hereto opposite the name of such Underwriter, plus any additional principal amount of Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof.

The purchase price per 6.000% Security to be paid by an Underwriter of the 6.000% Securities shall be an amount equal to 99.250% of the aggregate principal amount of Securities set forth in Schedule 1 hereto opposite the name of such Underwriter plus accrued interest, if any, from April 16, 2015. The purchase price per 6.500% Security to be paid by an Underwriter of the 6.500% Securities shall be an amount equal to 99.250% of the aggregate principal amount of Securities set forth in Schedule 1 hereto opposite the name of such Underwriter, plus accrued interest, if any, from April 16, 2015.

 

  (c) Payment. Payment of the purchase price for, and delivery of, certificates for the Securities shall be made at the London offices of Davis Polk & Wardwell or at such other place as shall be agreed upon by the Representatives and the Company, at 10:00 a.m. (New York City time) on the fifth business day after the date hereof (unless postponed in accordance with the provisions of Section 10 hereof), or such other time not later than ten business days after such date, as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “Closing Time”).

Payment shall be made to the Company by wire transfer of immediately available funds to a bank account designated by the Company, against delivery to such persons designated by the Representatives for the respective accounts of the Underwriters of one or more certificates in global form for the Securities to be purchased by them.

 

  (d) Foreign Selling Restrictions. Each Underwriter severally represents and agrees that (A) 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 Financial Services and Markets Act 2000 (the “FSMA”)) received by it in connection with the issue or sale of any Securities in circumstances in which section 21(1) of the FSMA does not apply to the Company; (B) it has complied and will comply with all applicable provisions of the FSMA (and all rules and regulations made pursuant to the FSMA) with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom.

 

  (i) Japan. Each of the Underwriters understands that the Securities have not been and will not be registered under the Securities and Exchange Law of Japan (the “Securities and Exchange Law”) and severally represents and agrees that the Securities may not be offered or sold, directly or indirectly in, Japan or to, or for the account or benefit of, any resident of Japan (which term as used herein means any person resident in Japan, including any corporation or other entity organized under the laws of Japan) or for the account or benefit of, any persons, for re-offering or resale, directly or indirectly, in Japan or to a resident of Japan, except pursuant to any exemption from the registration requirements of, and otherwise in compliance with, the Securities and Exchange Law and any other applicable laws, regulations and ministerial guidelines of Japan.

 

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  (ii) General. Each Underwriter represents and agrees that 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 Securities in any jurisdiction, except under circumstances that resulted, or will result, in compliance with the applicable rules and regulations of such jurisdiction and which will not require the publication by the Company of a prospectus or any registration or filing by the Company with any governmental agency or body or any stock exchange authority.

 

  (e) Free Writing Prospectus.

 

  (i) Each Underwriter represents and agrees that it shall not use, refer to or distribute any Free Writing Prospectus except:

 

  (A) a Free Writing Prospectus that (a) is not an Issuer Free Writing Prospectus, and (b) contains only information describing the preliminary terms of the Securities or their offering or otherwise permitted under Rule 134 under the 1933 Act;

 

  (B) a Free Writing Prospectus as shall be agreed in writing with the Company that is not distributed, used or referenced by such Underwriter in a manner reasonably designed to lead to its broad unrestricted dissemination unless the Company consents to such dissemination; and

 

  (ii) The Company hereby agrees that the Underwriters may distribute to investors a Free Writing Prospectus that contains the final terms of the Securities (including, for the avoidance of doubt, in the format of Bloomberg communications) substantially in the form set forth in Schedule 3 hereto and that such Free Writing Prospectus substantially in the form set forth in Schedule 3 hereto will be filed by the Company in accordance with Rule 433(d) under the 1933 Act and shall be considered an Issuer Free Writing Prospectus for purposes of this Agreement.

 

3. COVENANTS OF THE COMPANY

The Company covenants with each Underwriter as follows:

 

  (a) Compliance with Securities Regulations and Commission Requests. The Company, subject to Section 3(b) hereof, will:

 

  (i)

prepare any Free Writing Prospectus to be included in the Time of Sale Prospectus and the Prospectus as amended or supplemented in relation to the Securities in a form which shall be provided to the Representatives for their review and comment, with respect to the Free Writing Prospectus, prior to the Time of Sale, and with respect to the Prospectus as amended or supplemented, prior to any filing with the Commission under Rule 424(b) under the 1933 Act, and file, if required to do so under the 1933 Act and the

 

11


  1933 Act Regulations, such Prospectus pursuant to Rule 424(b) under the 1933 Act no later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement or, if applicable, such earlier time as may be required by Rule 424(b) under the 1933 Act;

 

  (ii) during the period when the Underwriters are required to make available to investors a Prospectus with respect to the Securities, notify the Representatives immediately, and confirm the notice in writing, (A) when any post-effective amendment to the Registration Statement shall have been filed, or any supplement to the Prospectus or any amended Prospectus shall have been filed, (B) of the receipt of any comments from the Commission, (C) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information and (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus, the Time of Sale Prospectus or the Prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceeding for any of such purposes. The Company will make reasonable efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment; and

 

  (iii) if required by Rule 430B(h) under the 1933 Act, to prepare a form of prospectus in a form which shall be provided to the Representatives for their review and comment prior to any filing and to file such form of prospectus pursuant to Rule 424(b) under the 1933 Act.

 

  (b) Filing of Amendments. During the period when the Underwriters are required to make available to investors a Prospectus with respect to the Securities, the Company will give the Representatives notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment), or any amendment, supplement or revision to the Preliminary Prospectus, the Time of Sale Prospectus or the Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise. It will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document to which the Representatives or counsel for the Underwriters shall reasonably object.

 

  (c) Free Writing Prospectus. Before preparing, using, authorizing, approving, referring to or filing any Free Writing Prospectus, the Company will furnish to the Representatives and counsel for the Underwriters a copy of the proposed Free Writing Prospectus. The Company will not use, authorize, approve, refer to or file any Free Writing Prospectus to which the Underwriters reasonably object. The Company will not take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the 1933 Act a Free Writing Prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.

 

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  (d) Delivery of Registration Statements. The Company has furnished or will deliver to the Representatives and counsel for the Underwriters, without charge, conformed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and conformed copies of all consents and certificates of experts, and will also deliver to the Representatives upon request, without charge, a conformed copy of the Registration Statement as originally filed and of each amendment thereto (without exhibits) for each of the Underwriters.

 

  (e) Delivery of Prospectuses. The Company has delivered to each Underwriter, without charge, as many copies of each Prospectus, each Free Writing Prospectus and any other information included in the Time of Sale Prospectus as such Underwriter reasonably requested, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will furnish to each Underwriter, without charge, during the period when the Prospectus as amended or supplemented is required to be delivered under the 1933 Act or the 1934 Act (or required to be delivered but for Rule 172 under the 1933 Act), such number of copies of the Prospectus as amended or supplemented and each Free Writing Prospectus as such Underwriter may reasonably request.

 

  (f) Time of Sale Prospectus. If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Free Writing Prospectus included as part of the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, the Company shall forthwith prepare, file with the Commission and furnish, at its own expense (unless the amendment or supplement is necessary because of a statement made in reliance upon and in conformity with information furnished to the Company in writing by any Underwriter through the Representatives expressly for use therein, in which case this shall be at the expense of the Underwriters), to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements therein as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading or so that the Free Writing Prospectus which is included as part of the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus as amended or supplemented, will comply with applicable law.

 

  (g)

Continued Compliance with Securities Laws. The Company will comply with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations and the 1939 Act and the 1939 Act Regulations, as applicable, with respect to the offer of the Securities so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus. If at any time following the first date of the public offering of the Securities the Prospectus (or in

 

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  lieu thereof the notice referred to in Rule 173(a) under the 1933 Act) is required by the 1933 Act to be delivered in connection with sales of the Securities, any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the Prospectus will not include any untrue statements of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time such Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the 1933 Act) is delivered to a purchaser, or if it shall be necessary, in the opinion of such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement or the Prospectus comply with such requirements, and the Company will furnish to the Underwriters such number of copies of such amendment or supplement as the Underwriters may reasonably request.

 

  (h) Blue Sky Qualifications. The Company will use all reasonable efforts, in cooperation with the Underwriters, to qualify the Securities for offering and sale under the applicable securities laws of such states and other domestic or foreign jurisdictions as the Representatives may reasonably request and to maintain such qualifications in effect for a period of one year from the later of the effective date of the Registration Statement and the Time of Sale or, if less, such other period as may be necessary to complete the distribution of the Securities; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. In each jurisdiction in which the Securities have been so qualified, the Company will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for a period of not less than one year from the effective date of the Registration Statement and the Time of Sale.

 

  (i) Rule 158. The Company will timely file such reports pursuant to the 1934 Act as are necessary in order to make generally available to its security holders as soon as practicable an earnings statement for the purposes of, and to provide to the Underwriters the benefits contemplated by, the last paragraph of Section 11(a) of the 1933 Act.

 

  (j) Use of Proceeds. The Company will use or cause to be used the net proceeds received from the sale of the Securities in the manner specified in the Time of Sale Prospectus under “Use of Proceeds.”

 

  (k) Ratings. The Company shall take all reasonable action necessary to enable Fitch Ratings Inc. (“Fitch”) and Moody’s Investors Service, Inc. (“Moody’s”) to provide their respective ratings of the Securities.

 

  (l)

Clearance and Settlement. The Company will cooperate with the Underwriters and take all reasonable action necessary if requested by the Representatives to permit the

 

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  Securities to be eligible for clearance and settlement through the facilities of The Depository Trust Company (“DTC”), Euroclear Bank S.A./N.V., as operator of the Euroclear System (“Euroclear”), and Clearstream Banking, société anonyme, Luxembourg (“Clearstream”).

 

  (m) Restriction on Sale of Securities. Except as contemplated by this Agreement, during a period of 30 days from the date of the Prospectus as amended or supplemented, the Company will not, without the prior written consent of the Representatives, directly or indirectly, sell, offer to sell, grant any option for sale of, or otherwise dispose of, any Securities or any security substantially similar to the Securities.

 

  (n) Reporting Requirements. The Company, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will file all documents required to be filed with the Commission pursuant to the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.

 

  (o) Record Retention. The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the 1933 Act.

 

  (p) Listing on the Irish Stock Exchange. The Company shall use all commercially reasonable efforts to list and admit to trading the Securities on the Global Exchange Market of the Irish Stock Exchange.

 

4. PAYMENT OF EXPENSES

 

  (a)

Expenses. The Company will pay all expenses incident to the performance of its obligations under this Agreement, including (i) the preparation, printing and filing of the Registration Statement (including financial statements and exhibits) as originally filed and of each amendment thereto, (ii) the preparation, copying and delivery to the Underwriters of this Agreement and the Indenture and such other documents as may be required in connection with the offering, purchase, sale, issuance or delivery of the Securities (other than fees of counsel for the Underwriters related thereto), (iii) the preparation, issuance and delivery of the certificates for the Securities to the Underwriters, (iv) the fees and disbursements of the Company’s counsel, accountants, experts and other advisors, (v) the qualification of the Securities under securities laws in accordance with the provisions of Section 3(h) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection therewith and in connection with the preparation of a Blue Sky survey and any supplement thereto, (vi) the filing fees incident to, and the reasonable fees and disbursements of counsel for the Underwriters in connection with, any review by the Financial Industry Regulatory Authority, Inc. (FINRA) of the terms of the Securities, (vii) the printing and delivery to the Underwriters of copies of each Preliminary Prospectus, the Time of Sale Prospectus, if different, and the Prospectus and any amendment or supplement thereto, (viii) the preparation, printing and filing under the 1933 Act of any Free Writing Prospectus and the distribution thereof, (ix) the fees and expenses of the Indenture Trustee, including the reasonable fees and disbursements of counsel for the Indenture Trustee, (x) any fees payable in connection with the rating of the Securities, (xi) the fees and expenses incurred in connection with any listing of the Securities on any stock exchange, (xii) road show expenses, including costs of group presentations,

 

15


  including room rentals, audio/visual rentals, catering, group transportation, electronic road show costs and travel and lodging of its employees; provided that the Underwriters shall be responsible for the direct lodging and transportation of their employees and (xiii) the fees and expenses incurred in connection with the approval by DTC, Euroclear and Clearstream of the Securities for clearance through their respective systems. The Company has also agreed to reimburse the Underwriters for the reasonable fees and disbursements of the Underwriters’ legal advisors in an amount not to exceed US $600,000.

 

  (b) Termination of Agreement. If this Agreement is terminated by the Representatives in accordance with the provisions of Section 5(n) and Section 9(a) hereof, the Company shall reimburse the Underwriters for all of their out-of-pocket expenses, including the reasonable fees and disbursements of Davis Polk & Wardwell, U.S. counsel for the Underwriters.

 

5. CONDITIONS OF UNDERWRITERS’ OBLIGATIONS

The obligations of the several Underwriters hereunder are subject to the accuracy of the representations and warranties of the Company contained in Section 1 hereof and in certificates of any officer of the Company or any affiliate or subsidiary of the Company delivered pursuant to the provisions hereof, to the performance by the Company in all material respects of its covenants and other obligations hereunder, and to the following further conditions:

 

  (a) Effectiveness of Registration Statement and Filings. At the Closing Time no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission, and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters. The Prospectus as amended or supplemented and each Free Writing Prospectus, to the extent required to be filed pursuant to Rule 433(d) under the 1933 Act, with respect to the Securities shall have been filed with the Commission in accordance with Rule 424(b) or Rule 433(d), as applicable, under the 1933 Act within the applicable time period prescribed for such filing by the 1933 Act Regulations and in accordance with Section 3(a) hereof.

 

  (b) Opinion of Dutch Counsel for the Company. At the Closing Time, the Representatives shall have received a written opinion, dated as of the Closing Time, of Linklaters LLP, Dutch counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such opinion for each of the other Underwriters, substantially to the effect set forth in Exhibit 1 hereto. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and certificates of public officials and the opinion may contain other customary or appropriate assumptions and qualifications reasonably satisfactory to counsel for the Underwriters.

 

  (c) Opinion of Office of General Counsel of the Company. At the Closing Time, the Representatives shall have received a written opinion, dated as of the Closing Time, of the office of the General Counsel of the Company, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such opinion for each of the other Underwriters, substantially to the effect set forth in Exhibit 2 hereto.

 

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  (d) Opinion of U.S. Counsel for the Company. At the Closing Time, the Representatives shall have received a written opinion or opinions, dated as of the Closing Time, of Sullivan & Cromwell LLP, U.S. counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such opinion for each of the other Underwriters, substantially to the effect set forth in Exhibit 3 hereto. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and certificates of public officials. Such opinion also may contain other customary or appropriate assumptions and qualifications reasonably satisfactory to counsel for the Underwriters.

 

  (e) Opinion of Counsel for Underwriters. At the Closing Time, the Representatives shall have received the favorable opinion, dated as of the Closing Time, of Davis Polk & Wardwell London LLP, counsel for the Underwriters, together with signed or reproduced copies of such opinion for each of the other Underwriters, in form and substance satisfactory to the Underwriters.

 

  (f) Opinion of Dutch Tax Counsel for the Company. At the Closing Time, the Representatives shall have received a written opinion, dated as of the Closing Time, of PricewaterhouseCoopers Belastingadvisseurs N.V., special Dutch tax counsel for the Company, in form and substance satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such opinion for each of the other Underwriters, substantially to the effect set forth in Exhibit 4 hereto and to such further effect as counsel for the Underwriters may reasonably request. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and certificates of public officials. Such opinion may also contain other customary appropriate assumptions and qualifications reasonably satisfactory to counsel for the Underwriters.

 

  (g) Officers’ Certificate. At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Time of Sale Prospectus, any material adverse change in the condition, financial or otherwise, or in the results of operations, general business affairs or business prospects of the Group, and the Representatives shall have received certificates of an executive of the Company, dated as of the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) the representations and warranties in Section 1 hereof were true and correct when made and are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (iii) the Company shall have complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Time, and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and, to such officer’s knowledge, no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission.

 

  (h)

Accountant’s Comfort Letters. At the time of the execution of this Agreement, the Representatives shall have received from Ernst & Young Accountants a letter, dated

 

17


  as of the date hereof, in form and substance reasonably satisfactory to the Representatives, together with signed or reproduced copies of such letter for each of the other Underwriters, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus, including reports incorporated by reference therein, in each case as specified by counsel for the Underwriters.

 

  (i) Bring-down Comfort Letters. At the Closing Time the Representatives shall have received from Ernst & Young Accountants a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (i) of this Section, except that the specified date referred to shall be a date not more than five days prior to Closing Time.

 

  (j) Maintenance of Rating. At the Closing Time, the Securities shall be rated at least “Ba2” by Moody’s and “BB” by Fitch, and the Company shall have delivered to the Representatives a letter dated on, or prior to, the Closing Time, from each such rating agency, or other evidence satisfactory to the Representatives, confirming that the Securities have such ratings. Since the date of this Agreement, there shall not have occurred a downgrading in the rating assigned to any securities of the Company by any “nationally recognized statistical rating agency,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the 1933 Act, and no such organization shall have publicly announced that it has under surveillance or review, that does not indicate an improvement, its rating of any securities of the Company.

 

  (k) Additional Documents. At the Closing Time, counsel for the Underwriters shall have been furnished with such documents as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained. All proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters.

 

  (l) Termination of Agreement. If any condition specified in this Section shall not have been fulfilled in all material respects when and as required to be fulfilled, this Agreement may be terminated by the Representatives by notice to the Company at any time at or prior to the Closing Time and such termination shall be without liability of any party to any other party except as provided in Section 4 hereof and except that Sections 1, 6 and 8 hereof shall survive any such termination and remain in full force and effect.

 

6. INDEMNIFICATION

 

  (a) Indemnification of Underwriters. The Company agrees to indemnify and hold harmless each Underwriter and each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act (each an “Indemnified Person”), as follows:

 

  (i) against any and all loss, liability, claim, damage and expense whatsoever (such expenses covered by clause (iv) below to be paid as incurred) arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), including the Basic Prospectus included therein, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading;

 

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  (ii) against any and all loss, liability, claim, damage and expense whatsoever (such expenses covered by clause (iv) below to be paid as incurred) arising out of any untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus, the Time of Sale Prospectus and the Prospectus, or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;

 

  (iii) against any and all loss, liability, claim, damage and expense whatsoever (such expenses covered by clause (iv) below to be paid as incurred) to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, provided that (subject to Section 6(d) below) any such settlement is effected with the written consent of the Company; and

 

  (iv) against any and all expense whatsoever, as incurred (including, subject to Section 6(b) hereof, the fees and disbursements of counsel chosen by the Representatives), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense has not been previously paid under (i), (ii) or (iii) above;

provided, however, that the indemnity set forth in this Section 6(a) shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement in or omission from or alleged untrue statement in or omission from the Registration Statement (or any amendment thereto), any Preliminary Prospectus, any Free Writing Prospectus, the Time of Sale Prospectus or the Prospectus as amended or supplemented, made in reliance upon, and in conformity with, the Underwriter Information or any other written information furnished to the Company by such Underwriter through the Representatives expressly for use in any such Free Writing Prospectus, as set forth in Schedule 4.

 

  (b)

Indemnification of the Company, Directors and Officers. Each Underwriter, severally in proportion to its respective purchase obligation and not jointly, agrees to indemnify and hold harmless the Company, its respective directors or Supervisory or Executive Board members, each of the officers of the Company who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, against

 

19


  any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), any Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto), any Free Writing Prospectus that the Company has filed or is required to file pursuant to Rule 433(d) under the 1933 Act or any Time of Sale Prospectus in reliance upon and in conformity with the Underwriter Information or any other written information furnished to the Company by such Underwriter through the Representatives expressly for use in any such Free Writing Prospectus, as set forth in Schedule 4.

 

  (c) Actions Against Parties; Notification. Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement. In the case of parties indemnified pursuant to Section 6(a) above, counsel to the indemnified parties shall be selected by the Representatives, and, in the case of parties indemnified pursuant to Section 6(b) above, counsel to the indemnified parties shall be selected by the Company, provided that if it so elects within a reasonable time after receipt of such notice, an indemnifying party, jointly with any other indemnifying party receiving such notice, may assume the defense of such action with counsel chosen by it and approved by the indemnified parties defendant in such action (which approval shall not be unreasonably withheld), unless such indemnified parties reasonably object to such assumption on the ground that there may be legal defenses available to them which are different from or in addition to those available to such indemnifying party. If an indemnifying party assumes the defense of such action, the indemnifying party shall not be liable for any fees and expenses of counsel for the indemnified parties incurred thereafter in connection with such action.

An indemnifying party may participate at its own expense in the defense of any such action; provided, however, that counsel to the indemnifying party shall not (except with the consent of the indemnified party) also be counsel to the indemnified party. In no event shall the indemnifying party be liable for fees and expenses of more than one counsel (in addition to any one firm of local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances.

No indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 6 or Section 7 hereof (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.

 

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  (d) Settlement Without Consent if Failure to Reimburse. If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for reasonable fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(iii) hereof effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.

 

7. CONTRIBUTION

In order to provide for just and equitable contribution in circumstances under which the indemnification provided for in Section 6 hereof is for any reason held to be unenforceable by an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other hand from the offering of the Securities pursuant to this Agreement or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Underwriters on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.

The relative benefits received by the Company on the one hand and the Underwriters on the other hand in connection with the offering of the Securities pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Securities pursuant to this Agreement (before deducting expenses but after deducting the total underwriting commission received by the Underwriters) received by the Company and the total underwriting commission received by the Underwriters, in each case as set forth on the cover of the Prospectus as amended or supplemented, bear to the aggregate initial public offering price of the Securities as set forth on such cover.

The relative fault of the Company on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.

The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.

 

21


Notwithstanding the provisions of this Section 7, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission.

No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.

For purposes of this Section 7, each person, if any, who controls an Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as such Underwriter, and each director or Supervisory or Executive Board member of the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Company. The Underwriters’ respective obligations to contribute pursuant to this Section 7 are several in proportion to the aggregate principal amount of Securities set forth opposite their respective names in Schedule 1 hereto and not joint.

 

8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY

All representations, warranties and agreements contained in this Agreement or in certificates of officers of the Company or any of their subsidiaries submitted pursuant hereto, shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of any Underwriter or controlling person, or by or on behalf of the Company, and shall survive delivery of the Securities to the Underwriters.

 

9. TERMINATION OF AGREEMENT

 

  (a)

Termination; General. The Representatives may terminate this Agreement, by notice to the Company, at any time at or prior to the Closing Time (i) if there has been, since the time of execution of this Agreement or since the respective dates as of which information is given in the Time of Sale Prospectus, any material adverse change in the condition, financial or otherwise, or in the results of operations or general business affairs or business prospects of the Company and its subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business, (ii) if there has occurred any material adverse change in the international financial markets or the financial markets in the United States or The Netherlands, or any outbreak of hostilities or escalation thereof affecting the United States or The Netherlands or other calamity or crisis, or any change or development involving a prospective change in national or international political, financial or economic conditions, in each case the effect of which is, in the judgment of the Representatives (after a discussion with the Company to the extent practicable), so material and adverse as to make it impracticable or inadvisable to market the Securities or to enforce contracts for the sale of the Securities on the terms and in the manner contemplated in the Time of Sale Prospectus exclusive of any amendment or supplement thereto, (iii) if trading in any securities of the Company has been suspended or materially limited by the Commission, the New York Stock Exchange or Euronext Amsterdam, or if trading generally on the American Stock Exchange, the New York Stock Exchange, the Nasdaq National Market, Euronext Amsterdam

 

22


  or the London Stock Exchange has been suspended or limited, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices have been required, by any such exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iv) if a banking moratorium has been declared by either Federal, New York, or Netherlands authorities or (v) if there has occurred a change or an official announcement by a competent authority of a forthcoming change in Dutch taxation materially adversely affecting the Company or the imposition of exchange controls by the United States or The Netherlands.

 

  (b) Liabilities. If this Agreement is terminated pursuant to this Section, such termination shall be without liability of any party to any other party except as provided in Section 4 hereof, and provided that Sections 1, 6, 7 and 8 hereof shall survive such termination and remain in full force and effect.

 

10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS

If one or more of the Underwriters shall fail at the Closing Time to purchase the Securities which it or they are obligated to purchase under this Agreement (the “Defaulted Securities”), the Representatives shall have the right, within 24 hours thereafter, to make arrangements for one or more of the non-defaulting Underwriters, or any other underwriters, to purchase all, but not less than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms herein set forth; if, however, the Representatives shall not have completed such arrangements within such 24-hour period, then:

 

  (i) if the number of Defaulted Securities does not exceed 10% of the aggregate principal amount of the Securities to be purchased hereunder, each of the non-defaulting Underwriters shall be obligated, severally and not jointly, to purchase the full amount thereof in the proportions that their respective underwriting obligations hereunder bear to the underwriting obligations of all non-defaulting Underwriters, or

 

  (ii) if the number of Defaulted Securities exceeds 10% of the aggregate principal amount of the Securities to be purchased hereunder, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter.

No action taken pursuant to this Section shall relieve any defaulting Underwriter from liability in respect of its default.

In the event of any such default which does not result in a termination of this Agreement, either the Representatives or the Company shall have the right to postpone the Closing Time for a period not exceeding seven days in order to effect any required changes in the Registration Statement or the Prospectus or in any other documents or arrangements. As used herein, the term “Underwriter” includes any person substituted for an Underwriter under this Section 10.

 

11. ARMS LENGTH RELATIONSHIP; NO FIDUCIARY DUTY

The Company acknowledges that in connection with the offering, purchase and sale of the Securities: (i) the Underwriters have acted at arm’s length, are not agents or advisors of, and owe

 

23


no fiduciary duties to, the Company, (ii) the Underwriters owe the Company only those duties and obligations set forth in this Agreement and (iii) the Underwriters may have interests that differ from those of the Company. The Company waives to the full extent permitted by applicable law any claims it may have against the Underwriters that the Underwriters have rendered advisory services of any nature or respect, or owe an agency, fiduciary or similar duty to the Company, in connection with the offering, purchase and sale of the Securities.

 

12. NOTICES

All notices, requests, statements and other communications hereunder shall be in writing and shall be delivered or sent by mail, messenger or any standard form of telecommunication. Notices to the Underwriters shall be directed to the Representatives c/o Citigroup Global Markets Inc., 388 Greenwich Street, New York, NY 10013, Attention: General Counsel, Fax: +1 646 291-1469; ING Financial Markets LLC, 1325 Avenue of the Americas, New York, NY 10019, United States; J.P. Morgan Securities LLC, 383 Madison Avenue, New York, New York 10179, United States; UBS Securities LLC, 1285 Avenue of the Americas, New York, New York 10019, Attention: Fixed Income Syndicate, Fax +1 203-719-0495; and notices to the Company shall be directed to ING Groep N.V. at Bijlmerplein 888 1102 MG Amsterdam, The Netherlands, Attention: General Counsel, Facsimile No. +31 20 6522199. Any such notice, request, statement or communication shall be effective upon receipt thereof.

 

13. PARTIES

This Agreement shall inure to the benefit of and be binding upon the Underwriters and the Company and their respective successors. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other than the Underwriters and the Company and their respective successors and the controlling persons and officers and directors and Supervisory Board members and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision herein contained. This Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the Underwriters and the Company and their respective successors, and said controlling persons and officers and directors and Supervisory or Executive Board members or the equivalent and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Securities from any Underwriter shall be deemed to be a successor by reason merely of such purchase.

 

14. GOVERNING LAW, SUBMISSION TO JURISDICTION

 

  (a) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.

 

  (b)

Submission to Jurisdiction. Each of the parties hereto irrevocably (i) agrees that any legal suit, action or proceeding against the Company brought by any Underwriter or by any person who controls any Underwriter arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in any Federal court located in the State of New York, (ii) waives, to the fullest extent it may effectively do so, any objection which it may now or hereafter have to the laying of venue of any such proceeding and (iii) submits to the non-exclusive jurisdiction of such courts in any such suit, action or proceeding. The Company irrevocably waives

 

24


  any immunity to jurisdiction to which it may otherwise be entitled or become entitled (including sovereign immunity, immunity to pre-judgment attachment, post-judgment attachment and execution) in any legal suit, action or proceeding against it arising out of or based on this Agreement or the transactions contemplated hereby which is instituted in any New York court or in any competent court in The Netherlands. The Company has appointed Corporation Service Company, 1180 Avenue of the Americas, Suite 210, New York, NY 10036-8401, as its authorized agent (the “Authorized Agent”) upon whom process may be served in any such action arising out of or based on this Agreement or the transactions contemplated hereby which may be instituted in any New York court by any Underwriter or by any person who controls any Underwriter, expressly consents to the jurisdiction of any such court in respect of any such action, and waives any other requirements of or objections to personal jurisdiction with respect thereto. The Company represents and warrants that the Authorized Agent has agreed to act as such agent for service of process and agrees to take any and all action, including the filing of any and all documents and instruments, that may be necessary to continue such appointment in full force and effect as aforesaid, unless and until a successor has been appointed as the Authorized Agent in the State of New York. The Company will notify the Representatives of the appointment of a successor Authorized Agent prior to such appointment taking effect. Service of process upon such Authorized Agent (or any successor) and written notice of such service to the Company shall be deemed, in every respect, effective service of process upon the Company.

 

15. JUDGMENT CURRENCY

In respect of any judgment or order given or made for any amount due hereunder that is expressed and paid in a currency (the “judgment currency”) other than United States dollars, the Company will indemnify each Underwriter against any loss incurred by such Underwriter as a result of any variation as between (i) the rate of exchange at which the United States dollar amount is converted into the judgment currency for the purpose of such judgment or order and (ii) the rate of exchange at which an Underwriter is able to purchase United States dollars with the amount of the judgment currency actually received by such Underwriter. The foregoing indemnity shall constitute a separate and independent obligation of the Company and shall continue in full force and effect notwithstanding any such judgment or order as aforesaid. The term “rate of exchange” shall include any premiums and costs of exchange payable in connection with the purchase of or conversion into United States dollars. In the event that any such Underwriter, as a result of any variation as noted in (i) or (ii) above, recovers an amount of United States dollars on conversion of a sum paid in a judgment currency which amount is in excess of the judgment or order given or made in United States dollars, such Underwriter shall remit such excess to the Company.

 

16. EFFECT OF HEADINGS

The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.

 

25


If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriters and the Company in accordance with its terms.

 

Very truly yours,
ING GROEP N.V.
By: /s/ K.I.D. Tuinstra
Name: K.I.D. Tuinstra
By: /s/ P.G. van der Linde
Name: P.G. van der Linde

 

26


Confirmed and Accepted

as of the date first above written:

Citigroup Global Markets Inc.

ING Financial Markets LLC

J.P. Morgan Securities LLC

UBS Securities LLC

Acting severally on behalf of themselves and as Representatives of the other Underwriters named in Schedule 1 hereto.

 

By: CITIGROUP GLOBAL MARKETS INC.
By:

/s/ Jack D. McSpadden, Jr.

Name: Jack D. McSpadden, Jr.
Title: Managing Director
By: ING FINANCIAL MARKETS LLC
By:

/s/ Scott Dainton

Name: Scott Dainton
Title: Managing Director
By: J.P. MORGAN SECURITIES LLC
By:

/s/ Som Bhattacharyya

Name: Som Bhattacharyya
Title: Vice President
By: UBS SECURITIES LLC
By:

/s/ Todd M. Mahoney

Name: Todd M. Mahoney
Title: Managing Director, Head of Debt Syndicate-Americas, UBS Investment Bank
By:

/s/ Igor Grinberg

Name: Igor Grinberg
Title: Director, Fixed Income Syndicate-Americas, UBS Investment Bank

 

27


Schedule 1

 

    

Principal

Amount of
6.000%

Securities

    

Principal

Amount of
6.500%

Securities

 

Underwriter

             

Citigroup Global Markets Inc.

   $ 160,000,000       $ 200,000,000   

ING Financial Markets LLC

   $ 160,000,000       $ 200,000,000   

J.P. Morgan Securities LLC

   $ 220,000,000       $ 275,000,000   

UBS Securities LLC

   $ 160,000,000       $ 200,000,000   

Barclays Capital Inc.

   $ 50,000,000       $ 62,500,000   

Commerz Markets LLC

   $ 50,000,000       $ 62,500,000   

HSBC Securities (USA) Inc.

   $ 50,000,000       $ 62,500,000   

Merrill Lynch, Pierce, Fenner & Smith

                      Incorporated

   $ 50,000,000       $ 62,500,000   

Natixis Securities Americas LLC

   $ 50,000,000       $ 62,500,000   

Société Générale

   $ 50,000,000       $ 62,500,000   

Total

   $ 1,000,000,000       $ 1,250,000,000   

 

28


Schedule 2

Issuer Free Writing Prospectus

Final Term Sheet dated April 9, 2015 containing the final terms of the Securities

substantially as set forth in Schedule 3 hereto

Roadshow Presentation filed with the SEC on April 6, 2015

Press Release titled “ING Group to issue USD denominated Additional Tier 1 securities” dated

April 6, 2015, filed with the SEC on April 6, 2015

Press Release titled “ING Group will issue USD 2.25 billion Additional Tier 1 securities” dated

April 9, 2015, filed with the SEC on April 9, 2015

 

29


Schedule 3

Final Term Sheet ING GROEP N.V.

Filed pursuant to Rule 433

Registration Statement No. 333-202880

Dated April 9, 2015

 

LOGO

ING Groep N.V.

$1,000,000,000 6.000% Perpetual Additional Tier 1 Contingent Convertible Capital Securities

$1,250,000,000 6.500% Perpetual Additional Tier 1 Contingent Convertible Capital Securities

Pricing Term Sheet

 

 

Issuer ING Groep N.V.
Securities

$1,000,000,000 6.000% Perpetual Additional Tier 1 Contingent Convertible Capital Securities (the “6.000% Securities”)

 

$1,250,000,000 6.500% Perpetual Additional Tier 1 Contingent Convertible Capital Securities (the “6.500% Securities” and, together with the 6.000% Securities, the “Securities”)

Expected Issue Ratings Ba2 (Moody’s) / BB (Fitch)1
Status Perpetual Contingent Convertible Securities
Legal Format SEC Registered
Trade Date April 9, 2015
Settlement Date April 16, 2015 (T+5)
Maturity Date Perpetual, with no fixed maturity or fixed redemption date
Terms Specific to the 6.000% Securities and Other Transaction Details
Principal Amount $1,000,000,000
Reoffer Yield 6.000%
Price to Public 100.000%
Underwriting Fees and Commissions 0.750%
Net Price 99.250%
Net Proceeds to Issuer (before Issuer expenses) $992,500,000
Optional Call Dates April 16, 2020 and on any five-year anniversary thereof
ISIN / CUSIP US456837AE31 / 456837AE3
Initial Interest Period
Initial Fixed Rate 6.000%, from and including April 16, 2015 to, but excluding, April 16, 2020
Initial Reset Date April 16, 2020

 

1 

Note: A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revision or withdrawal at any time. See also the risk factors related to securities ratings on pages S-42 and S-43 of the preliminary prospectus supplement.

 

30


Initial Interest Payment Dates Semi-annually in arrear on April 16 and October 16 of each year up to and including April 16, 2020, commencing on October 16, 2015, subject to cancellation or deemed cancellation and applicable restrictions on interest payments as described in the preliminary prospectus supplement dated April 6, 2015 (the “preliminary prospectus supplement”), supplementing the prospectus dated March 19, 2015
Day Count 30/360, following, unadjusted
Benchmark UST 1.375% due March 31, 2020
Spread to Benchmark 460.2 bps
Reference Mid Market Swap Rate 1.555%
Spread to Reference Mid Market Swap Rate 444.5 bps
Interest Periods Following Any Reset Date
Interest Rate Following Any Reset Date The applicable Mid Market Swap Rate on the relevant Reset Determination Date plus 4.445%, from and including the relevant Reset Date to (but excluding) the next following Reset Date
Reset Dates April 16, 2020 and each fifth anniversary date thereafter
Interest Payment Dates Following Any Reset Date Semi-annually in arrear on April 16 and October 16 of each year commencing on October 16, 2020, subject to cancellation or deemed cancellation and applicable restrictions on interest payments as described in the preliminary prospectus supplement
Day Count 30/360, following, unadjusted
Terms Specific to the 6.500% Securities and Other Transaction Details
Principal Amount $1,250,000,000
Reoffer Yield 6.500%
Price to Public 100.000%
Underwriting Fees and Commissions 0.750%
Net Price 99.250%
Net Proceeds to Issuer (before Issuer expenses) $1,240,625,000
Optional Call Dates April 16, 2025 and on any five-year anniversary thereof
ISIN / CUSIP US456837AF06 / 456837AF0
Initial Interest Period
Initial Fixed Rate 6.500%, from and including April 16, 2015 to, but excluding, April 16, 2025
Initial Reset Date April 16, 2025
Initial Interest Payment Dates Semi-annually in arrear on April 16 and October 16 of each year up to and including April 16, 2025, commencing on October 16, 2015, subject to cancellation or deemed cancellation and applicable restrictions on interest payments as described in the preliminary prospectus supplement
Day Count 30/360, following, unadjusted
Benchmark UST 2.000% due February 15, 2025
Spread to Benchmark 454.0 bps
Reference Mid Market Swap Rate 2.054%
Spread to Reference Mid Market Swap Rate 444.6 bps
Interest Periods Following Any Reset Date
Interest Rate Following Any Reset Date The applicable Mid Market Swap Rate on the relevant Reset Determination Date plus 4.446%, from and including the relevant Reset Date to (but excluding) the next following Reset Date

 

31


Reset Dates April 16, 2025 and each fifth anniversary date thereafter
Interest Payment Dates Following Any Reset Date Semi-annually in arrear on April 16 and October 16 of each year commencing on October 16, 2025, subject to cancellation or deemed cancellation and applicable restrictions on interest payments as described in the preliminary prospectus supplement
Day Count 30/360, following, unadjusted
Certain Other Information Applicable to Both Series of Securities
Denominations $200,000 and integral multiples of $1,000 in excess thereof
Business Days London, New York and Amsterdam
Governing Law New York law, except for subordination provisions and waiver of set-off provisions which will be governed by Dutch law
Risk Factors An investment in the Securities involves significant risks. As part of making an investment decision, investors should make sure they thoroughly understand the Securities’ terms, such as the provisions governing Conversion (including, in particular, the circumstances under which a Trigger Event may occur), the agreement by investors to be bound by the exercise of any Dutch Bail-in Power by the relevant resolution authority, that interest is due and payable only at the sole discretion of the Issuer and may be cancelled at the sole discretion of the Issuer, and that there is no scheduled repayment date for the principal of the Securities. See “Risk Factors” in the preliminary prospectus supplement for more information.
Joint Lead Managers and Joint Bookrunners Citigroup Global Markets Inc., ING Financial Markets LLC, J.P. Morgan Securities LLC and UBS Securities LLC
Joint Structuring Coordinators ING Financial Markets LLC and J.P. Morgan
Joint Lead Managers Barclays Capital Inc., Commerz Markets LLC, HSBC Securities (USA) Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Natixis Securities Americas LLC and Société Générale
Documentation To be documented under the Issuer’s SEC registered shelf dated March 19, 2015
Clearing DTC
Listing Application has been made to list the Securities on the Global Exchange Market of the Irish Stock Exchange
Trustee and Paying Agent The Bank of New York Mellon, London Branch
Interest Calculation Agent The Bank of New York Mellon, London Branch
Conversion Calculation Agent Conv-Ex Advisors Limited
Definitions Unless otherwise defined herein, all capitalized terms have the meaning set forth in the preliminary prospectus supplement
Selling Restrictions The Securities are not intended to be sold and should not be sold to retail clients in the European Economic Area (the “EEA”), within the meaning of the rules set out in the Temporary Marketing Restriction (Contingent Convertible Securities) Instrument 2014 (as amended or replaced from time to time) other than in circumstances that do not and will not give rise to a contravention of those rules by any person. Prospective investors are referred to the section headed “Marketing Restrictions” on the inside cover page of the prospectus supplement for further information. See also “Underwriting—Selling Restrictions” in the prospectus supplement for certain other restrictions.

The Issuer has filed a registration statement, including a prospectus and the preliminary prospectus supplement, with the U.S. Securities and Exchange Commission (the “SEC”) for this offering. Before you invest, you should read each of these documents and the other documents the Issuer has filed with the SEC for more complete information about the

 

32


Issuer and this offering. You may get these documents for free by searching the SEC online database (EDGAR) at www.sec.gov. Alternatively, you may obtain a copy of the prospectus and the preliminary prospectus supplement by calling Citigroup Global Markets Inc. toll-free at 1-800-831-9146, ING Financial Markets LLC toll-free at 1-877-446-4930, J.P. Morgan Securities LLC collect at 1-212-834-4533 and UBS Securities LLC toll-free at 1-888-827-7275.

 

33


Schedule 4

Underwriter Information

 

  the names of the Underwriters appearing on the front cover page, page S-95 and the back cover page of the Prospectus Supplement;

 

  the first sentence of the third paragraph under the caption “Marketing Restrictions” in the Prospectus Supplement;

 

  the seventh and eighth paragraphs appearing under the caption “Underwriting” on page S-95 of the Prospectus Supplement;

 

  the second paragraph under the caption “Underwriting—Conflict of Interest” on page S-96 of the Prospectus Supplement; and

 

  the paragraphs appearing under the caption “Underwriting—Stabilization Transactions and Short Sales” on page S-96 of the Prospectus Supplement.

 

34


Exhibit 1

Form of Opinion of Dutch Counsel to the Company

[Linklaters LLP Opinion]

 

I-1


Exhibit 2

Form of Opinion of Office of General Counsel to the Company

[Office of General Counsel Opinion]

 

II-1


Exhibit 3

Form of Opinion of U.S. Counsel to the Company

[Sullivan & Cromwell LLP Opinion]

 

III-1


Form of Disclosure Letter of U.S. Counsel to the Company

[Sullivan & Cromwell LLP Disclosure Letter]

 

III-2


Exhibit 4

Form of Opinion of Dutch Tax Counsel to the Company

[PricewaterhouseCoopers Belastingadviseurs N.V. Opinion]

 

IV-1



Exhibit 4.1

 

 

 

ING GROEP N.V.,

Issuer

TO

THE BANK OF NEW YORK MELLON, LONDON BRANCH

Trustee

 

 

INDENTURE

Dated as of April 16, 2015

Capital Securities

 

 

 


ING GROEP N.V.

Reconciliation and tie between Trust Indenture Act of 1939, as amended by the Trust Indenture Reform Act of 1990, and Indenture, dated as of April 16, 2015.

 

Trust Indenture Act Section

       Indenture Section
§310   (a)(1)      6.09
  (a)(2)      6.09
  (a)(3)      Not Applicable
  (a)(4)      Not Applicable
  (b)      6.08

6.10

§311   (a)      6.13
  (b)      6.13
§312   (a)      7.01

7.02(a)

  (b)      7.02(b)
  (c)      7.02(c)
§313   (a)      7.03(a)
  (b)      7.03(a)
  (c)      1.06,7.03(a)
  (d)      7.03(b)
§314   (a)      7.04, 10.06
  (b)      Not Applicable
  (c)(1)      1.02
  (c)(2)      1.02
  (c)(3)      Not Applicable
  (d)      Not Applicable
  (e)      1.02
  (f)      Not Applicable
§315   (a)      6.01, 6.03
  (b)      6.02
  (c)      5.04, 6.01
  (d)(1)      6.01, 6.03
  (d)(2)      6.01, 6.03
  (e)      5.14
§316   (a)(1)(A)      5.02, 5.12
  (a)(1)(B)      5.13
  (a)(2)      Not Applicable
  (a)(last sentence)      1.01
  (b)      5.08
§317   (a)(1)      5.03
  (a)(2)      5.04
  (b)      10.03
§318   (a)      1.07

NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a part of this Indenture.


TABLE OF CONTENTS

 

         Page  
  ARTICLE 1   
  DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION   
Section 1.01  

Definitions

     1   
Section 1.02  

Compliance Certificates and Opinions

     7   
Section 1.03  

Form of Documents Delivered to Trustee

     8   
Section 1.04  

Acts of Holders

     8   
Section 1.05  

Notices, etc. to Trustee and Company

     9   
Section 1.06  

Notice to Holders; Waiver

     10   
Section 1.07  

Conflict with Trust Indenture Act

     10   
Section 1.08  

Effect of Headings and Table of Contents

     10   
Section 1.09  

Successors and Assigns

     10   
Section 1.10  

Separability Clause

     10   
Section 1.11  

Benefits of Indenture

     11   
Section 1.12  

Governing Law

     11   
Section 1.13  

Saturdays, Sundays and Legal Holidays

     11   
Section 1.14  

Appointment of Agent for Service

     11   
Section 1.15  

Calculation Agent

     12   
Section 1.16  

Waiver of Jury Trial

     12   
Section 1.17  

Force Majeure

     12   
  ARTICLE 2   
  CAPITAL SECURITY FORMS   
Section 2.01  

Forms Generally

     12   
Section 2.02  

Form of Trustee’s Certificate of Authentication

     13   
  ARTICLE 3   
  THE CAPITAL SECURITIES   
Section 3.01  

Amount Unlimited; Issuable in Series

     13   
Section 3.02  

Denominations

     16   
Section 3.03  

Execution, Authentication, Delivery and Dating

     16   
Section 3.04  

Temporary Capital Securities

     17   
Section 3.05  

Registration, Registration of Transfer and Exchange

     17   
Section 3.06  

Mutilated, Destroyed, Lost and Stolen Capital Securities

     19   
Section 3.07  

Payment; Interest Rights Preserved

     19   
Section 3.08  

Persons Deemed Owners

     20   
Section 3.09  

Cancellation

     20   
Section 3.10  

Computation of Interest

     20   
Section 3.11  

CUSIP Numbers

     21   

 

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         Page  
  ARTICLE 4   
  SATISFACTION AND DISCHARGE   
Section 4.01  

Satisfaction and Discharge of Indenture

     21   
  ARTICLE 5   
  REMEDIES   
Section 5.01  

Events of Default

     21   
Section 5.02  

Acceleration of Maturity; Rescission and Annulment

     22   
Section 5.03  

Collection of Indebtedness and Suits for Enforcement by Trustee

     22   
Section 5.04  

Trustee May File Proofs of Claim

     23   
Section 5.05  

Trustee May Enforce Claims Without Possession of Capital Securities

     23   
Section 5.06  

Application of Money Collected

     24   
Section 5.07  

Limitation on Suits

     24   
Section 5.08  

Unconditional Right of Holders to Receive Principal, Premium and Interest, if any

     25   
Section 5.09  

Restoration of Rights and Remedies

     25   
Section 5.10  

Rights and Remedies Cumulative

     25   
Section 5.11  

Delay or Omission Not Waiver

     25   
Section 5.12  

Control by Holders

     25   
Section 5.13  

Waiver of Past Events of Default

     26   
Section 5.14  

Undertaking for Costs

     26   
Section 5.15  

Waiver of Usury, Stay or Extension Laws

     26   
  ARTICLE 6   
  THE TRUSTEE   
Section 6.01  

Certain Duties and Responsibilities

     26   
Section 6.02  

Notice of Events of Default

     27   
Section 6.03  

Certain Rights of Trustee

     27   
Section 6.04  

Not Responsible for Recitals or Issuance of Capital Securities

     28   
Section 6.05  

May Hold Capital Securities

     29   
Section 6.06  

Money Held in Trust

     29   
Section 6.07  

Compensation and Reimbursement

     29   
Section 6.08  

Disqualification; Conflicting Interests

     30   
Section 6.09  

Corporate Trustee Required; Eligibility

     30   
Section 6.10  

Resignation and Removal; Appointment of Successor

     30   
Section 6.11  

Acceptance of Appointment by Successor

     32   
Section 6.12  

Merger, Conversion, Consolidation or Succession to Business

     32   
Section 6.13  

Preferential Collection of Claims

     33   
Section 6.14  

Appointment of Authenticating Agent

     33   

 

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         Page  
  ARTICLE 7   
  HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY   
Section 7.01  

Company to Furnish Trustee Names and Addresses of Holders

     34   
Section 7.02  

Preservation of Information; Communications to Holders

     35   
Section 7.03  

Reports by Trustee

     35   
Section 7.04  

Reports by Company

     35   
  ARTICLE 8   
  CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER   
Section 8.01  

Company May Consolidate, etc. Only on Certain Terms

     36   
Section 8.02  

Successor Person Substituted

     37   
  ARTICLE 9   
  SUPPLEMENTAL INDENTURES   
Section 9.01  

Supplemental Indentures Without Consent of Holders

     37   
Section 9.02  

Supplemental Indentures with Consent of Holders

     38   
Section 9.03  

Execution of Supplemental Indentures

     39   
Section 9.04  

Effect of Supplemental Indentures

     39   
Section 9.05  

Conformity with Trust Indenture Act

     39   
Section 9.06  

Reference in Capital Securities to Supplemental Indentures

     39   
  ARTICLE 10   
  COVENANTS   
Section 10.01  

Payment of Principal, Premium, and Interest

     39   
Section 10.02  

Maintenance of Office or Agency

     40   
Section 10.03  

Money for Payments to Be Held in Trust

     40   
Section 10.04  

Additional Amounts

     41   
Section 10.05  

Corporate Existence

     43   
Section 10.06  

Statement as to Compliance

     43   
  ARTICLE 11   
  REDEMPTION OF CAPITAL SECURITIES   
Section 11.01  

Applicability of Article

     43   
Section 11.02  

Election to Redeem; Notice to Trustee

     43   
Section 11.03  

Selection by Trustee of Capital Securities to be Redeemed

     43   
Section 11.04  

Notice of Redemption

     44   
Section 11.05  

Deposit of Redemption Price

     44   
Section 11.06  

Capital Securities Payable on Redemption Date

     44   
Section 11.07  

Capital Securities Redeemed in Part

     45   

 

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         Page  
  ARTICLE 12   
  SUBORDINATION OF CAPITAL SECURITIES   
Section 12.01  

Status

     45   

 

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INDENTURE, dated as of April 16, 2015, between ING Groep N.V., a holding company duly organized and existing under the laws of The Netherlands (herein called the “Company”), having its corporate seat in Amsterdam, The Netherlands, and its principal office at Strawinskylaan 2631, 1077 ZZ Amsterdam, P.O. Box 810, 1000 AV Amsterdam, The Netherlands, and THE BANK OF NEW YORK MELLON, LONDON BRANCH, a New York banking corporation, as Trustee (herein called the “Trustee”), having its Corporate Trust Office at One Canada Square, London E14 5AL, United Kingdom.

RECITALS OF THE COMPANY

The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its Capital Securities (herein called the “Capital Securities”), to be issued in one or more series as in this Indenture provided.

All things necessary to make this Indenture a valid and binding agreement of the Company, in accordance with its terms, have been done.

NOW, THEREFORE, THIS INDENTURE WITNESSETH:

For and in consideration of the premises and the purchase of the Capital Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of Capital Securities as follows:

ARTICLE 1

DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

Section 1.01 Definitions. For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:

(a) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;

(b) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;

(c) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles, and, except as otherwise herein expressly provided, the term “generally accepted accounting principles” with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted in The Netherlands at the date of such computation and as applied by the Company;

(d) any reference to an “Article” or a “Section” refers to an Article or a Section, as the case may be, of this Indenture;

(e) any reference to a treaty, directive, statute, law or regulation is to such treaty, directive, statute, law or regulation as amended or replaced from time to time; and

(f) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.

Act,” when used with respect to any Holder, has the meaning specified in Section 1.04.


Additional Amounts” has the meaning specified in Section 10.04.

Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

Applicable Law” has the meaning specified in Section 10.04.

Authenticating Agent” means any Person authorized by the Trustee to act on behalf of the Trustee to authenticate Capital Securities of one or more series.

Authorized Newspaper” means a newspaper in an official language of the country of publication customarily published at least once a day for at least five (5) days in each calendar week and of general circulation in the place in connection with which the term is used, which, in The Netherlands, will be Het Financieele Dagblad, if practicable, and which, in the United States, will be The Wall Street Journal, if practicable, and if it shall be impracticable to make any publication of any notice required hereby in any such newspaper, shall mean any publication or other notice in lieu thereof which is made or given as determined by the Trustee which may include publication or other notice to members through DTC.

Bank” means ING Bank N.V.

Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Executive Board and to be in full force and effect on the date of such certification, and delivered to the Trustee.

Business Day” means, with respect to any Place of Payment, except as may otherwise be provided in the form of Capital Securities of any particular series, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in The Netherlands or The City of New York generally are authorized or obligated by law, regulation or executive order to close.

Calculation Agent” means the Person, if any, authorized by the Company to calculate the interest rate or other amounts from time to time in relation to any series of Capital Securities.

Capital Regulations”, at any time, means any requirements of Dutch law or contained in the regulations, requirements, guidelines and policies of the Relevant Regulator, or of the European Parliament and the European Council and of the European Banking Authority, then in effect or applied in the Netherlands relating to capital adequacy and applicable to the Issuer, the Bank or the Group, including but not limited to the CRD IV Directive and the CRD IV Regulation and taking into account any transitional arrangements thereunder.

Code” means the U.S. Internal Revenue Code of 1986.

Commission” means the United States Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.

 

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Company” means the Person named as the “Company” in the first paragraph of this Indenture until a successor corporation shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor corporation.

Company Request” or “Company Order” means a written request or order signed in the name of the Company by any two of the following: a Chairman of the Executive Board, a Vice Chairman of the Executive Board, a Chief Financial Officer, a Secretary or an Assistant Secretary of the Company, a member of the Executive Board or any other officer or officers of the Company designated in writing by or pursuant to authority of the Executive Board and delivered to the Trustee from time to time.

Capital Securities” has the meaning set forth in the recitals of the Company herein and more particularly means any series of Capital Securities issued, authenticated and delivered under this Indenture.

Capital Security” means one of the Capital Securities.

Corporate Trust Office” means the Corporate Trust Office referenced in the applicable indenture supplemental hereto establishing the terms of the Capital Securities of a Series in which the Trustee’s corporate trust business is principally administered, or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Company).

The term “corporation” includes corporations, associations, companies and business trusts.

CRD IV Directive” means the Directive (2013/36/EU) of the European Parliament and of the Council on the access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms dated June 26, 2013, as amended from time to time.

CRD IV Regulation” means the Regulation (EU No. 575/2013) of the European Parliament and of the Council on prudential requirements for credit institutions and investment firms dated June 26, 2013, amended or replaced from time to time.

Depositary” means, with respect to Capital Securities of any series issuable or issued in whole or in part in the form of one or more Global Securities, a clearing agency registered under the Exchange Act that is designated to act as Depositary for such Capital Securities as contemplated by Section 3.01.

Discount Security” means any Capital Security which provides for an amount less than the principal amount to be due and payable upon a declaration of the Maturity thereof pursuant to Section 5.02.

Dollar” or “$” or any similar reference means the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.

DTC” means The Depository Trust Company or its nominee or its or their successor.

Euro” or “” or any similar reference means the single currency of the participating member states in the Third Stage of European economic and monetary union pursuant to the Treaty establishing the European Community and as defined in Article 2 of Council Regulation (EC) No. 974/98 of May 3, 1998 on the introduction of the Euro.

 

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Event of Default” has the meaning specified in Section 5.01.

Exchange Act” means the United States Securities Exchange Act of 1934.

Executive Board” means either the executive board (raad van bestuur) of the Company or any duly authorized committee of that board.

FATCA Withholding Tax” has the meaning specified in Section 10.04.

Foreign Currency” means a currency issued by the government of any country other than the United States of America as at the time of payment is legal tender for the payment of public and private debts.

Foreign Government Securities” means, with respect to Capital Securities of any series that are denominated in a Foreign Currency, non-callable (i) direct obligations of the government that issued such Foreign Currency for the payment of which obligations its full faith and credit is pledged or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of such government, the payment of which obligations is unconditionally guaranteed as a full faith and credit obligation of such government.

Global Security” means, with respect to Capital Securities issued in registered form, a global certificate evidencing all or part of a series of Capital Securities, authenticated and delivered to the Depositary and registered in the name of the Depositary or its nominee.

Group” means the Company and its consolidated subsidiaries.

Holder” means a Person in whose name a registered Capital Security in global or definitive form is registered in the Security Register.

The term “interest,” when used with respect to a Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity.

Indenture” or “Indenture” means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the terms and forms of particular series of Capital Securities established pursuant to Section 3.01.

Interest Payment Date,” when used with respect to any Capital Security, means the Stated Maturity, if any, of any installment of interest on such Capital Security.

Investment Company Act” means the U.S. Investment Company Act of 1940.

Maturity,” when used with respect to any Capital Security, means the date, if any, on which the principal of such Capital Security becomes due and payable as therein or herein provided, whether by call for redemption, winding up of the Company or otherwise.

Netherlands Bail-In Power,” when used with respect to any Capital Security of a series, shall have the meaning specified in the indenture supplemental hereto establishing the terms of the Capital Securities of such series.

 

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Netherlands Resolution Authority,” when used with respect to any Capital Security of a series, shall have the meaning specified in the indenture supplemental hereto establishing the terms of the Capital Securities of such series.

Officers’ Certificate” means a certificate signed by any two of the following: a Chairman of the Executive Board, a Vice Chairman of the Executive Board, a Chief Financial Officer, a Secretary or an Assistant Secretary of the Company, a member of the Executive Board or any other officer or officers of the Company designated in a writing by or pursuant to authority of the Executive Board and delivered to the Trustee from time to time. One of the officers signing an Officers’ Certificate given pursuant to Section 10.06 shall be the principal executive, financial or accounting officer of the Company.

Opinion of Counsel” means a written opinion of counsel, who may be an employee of the Company.

Outstanding,” when used with respect to Capital Securities or any series of Capital Securities means, as of the date of determination, all Capital Securities or all Capital Securities of such series, as the case may be, theretofore authenticated and delivered under this Indenture, except:

(i) Capital Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;

(ii) Capital Securities, or portions thereof, for whose payment or redemption money, U.S. Government Obligations or Foreign Government Securities in the necessary amount have been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Capital Securities; provided, that, if such Capital Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made; and

(iii) Capital Securities which have been paid pursuant to Section 11.06 or in exchange for or in lieu of which other Capital Securities have been authenticated and delivered pursuant to this Indenture;

provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Capital Securities of any series have given, made or taken any request, demand, authorization, direction, notice, consent, waiver or other action hereunder, (i) the principal amount of a Capital Security denominated in a Foreign Currency shall be the Dollar equivalent, determined in the manner provided as contemplated by Section 3.01 on the date of original issuance of such Capital Security, of the principal amount of such Capital Security; (ii) the principal amount of any Discount Security which shall be deemed Outstanding shall be the principal amount thereof which would be due and payable as of such date upon acceleration of the maturity thereof to such date pursuant to Section 5.02; and (iii) Capital Securities beneficially owned by the Company or any other obligor upon the Capital Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Capital Securities which the Trustee knows to be so beneficially owned shall be so disregarded; provided further, however, that Capital Securities so beneficially owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Capital Securities and that the pledgee is not the Company or any other obligor upon the Capital Securities or any Affiliate of the Company or of such other obligor.

 

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Paying Agent” means any Person (which may include the Company) authorized by the Company to pay the principal of (and premium, if any) or interest, if any, on any Capital Securities on behalf of the Company.

Person” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.

Place of Payment,” when used with respect to the Capital Securities of any series, means the place or places where the principal of (and premium, if any) and interest, if any, on the Capital Securities of that series are payable as specified pursuant to Section 3.01 or, if not so specified, as specified in Section 10.02.

Predecessor Security” of any particular Capital Security means every previous Capital Security evidencing all or a portion of the same debt as that evidenced by such particular Capital Security; and, for the purposes of this definition, any Capital Security authenticated and delivered under Section 3.06 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Capital Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Capital Security.

Redemption Date,” when used with respect to any Capital Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.

Redemption Price,” when used with respect to any Capital Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.

Regular Record Date” for any interest payable on any Interest Payment Date on registered Capital Securities of any series means the date specified for the purpose pursuant to Section 3.01.

Relevant Regulator” means the European Central Bank, or such other body or authority having primary supervisory authority with respect to the Company, the Bank or the Group.

Responsible Officer,” when used with respect to the Trustee, means any director, vice president, any assistant vice president, any assistant treasurer or any other officer in the Corporate Trust Office of the Trustee customarily performing functions similar to those performed by any of the above designated officers, in each case that has direct responsibility for administering this Indenture, or, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject.

Security Register” and “Security Registrar” have the respective meanings specified in Section 3.05.

Stated Maturity,” when used with respect to any Capital Security or any installment of principal thereof or interest thereon, means the date, if any, specified in, or determined in accordance with the terms of, such Capital Security as the fixed date on which the principal of such Capital Security or such installment of interest is payable.

Subsidiary” means each subsidiary as defined in Section 2:24a of the Dutch Civil Code for the time being of the Company.

Taxes” has the meaning specified in Section 10.04.

Taxing Jurisdiction” has the meaning specified in Section 10.04.

 

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Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument until a successor trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean the Person who is then the Trustee hereunder, and if at any time there is more than one such Person, “Trustee” shall mean and include each such Person; and “Trustee” as used with respect to the Capital Securities of any series shall mean the Trustee with respect to the Capital Securities of such series.

Trust Indenture Act” means the United States Trust Indenture Act of 1939, as in force at the date as of which this instrument was executed, provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.

United States of America” means the United States of America and, except in the case of Section 6.09 and 6.14, its territories and possessions.

U.S. Government Obligations” means (a) any security which is (i) a direct obligation of the United States of America for the payment of which the full faith and credit of the United States of America is pledged or (ii) an obligation of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case (i) or (ii), is not callable or redeemable at the option of the issuer thereof, and (b) any depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any U.S. Government Obligation which is specified in (a) above and held by such bank for the account of the holder of such depositary receipt, or with respect to any specific payment of principal of or interest on any U.S. Government Obligation which is so specified and held, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of principal or interest evidenced by such depositary receipt.

Vice President,” when used with respect to the Trustee, means any vice president, whether or not designated by a number or a word or words added before or after the title “vice president”.

Section 1.02 Compliance Certificates and Opinions. Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee an Officer’s Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of the counsel rendering such opinion all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.

Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:

(a) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;

(b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;

 

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(c) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and

(d) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.

Section 1.03 Form of Documents Delivered to Trustee. In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.

Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or opinion of, or representations by, counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representation with respect to such matters is erroneous.

Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.

Section 1.04 Acts of Holders.

(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, when it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 6.01) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section.

(b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. When such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.

 

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(c) If the Company shall solicit from the Holders of Capital Securities of any series any request, demand, authorization, direction, notice, consent, waiver or other Act, the Company may, at its option, by Board Resolution or other means, fix in advance a record date for purposes of determining the identity of Holders of registered Capital Securities entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but the Company shall have no obligation to do so. Any such record date shall be fixed at the Company’s discretion. If such a record date is fixed, such request, demand, authorization, direction, notice, consent and waiver or other Act may be sought or given before or after the record date, but only the Holders of registered Capital Securities of record at the close of business on such record date shall be deemed to be Holders of registered Capital Securities for the purpose of determining whether Holders of the requisite proportion of Capital Securities of such series Outstanding have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the registered Capital Securities of such series Outstanding shall be computed as of such record date.

(d) The ownership of registered Capital Securities shall be proved by the Security Register.

(e) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Capital Security shall bind every future Holder of the same Capital Security and the Holder of every Capital Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Capital Security or such other Capital Security.

Section 1.05 Notices, etc. to Trustee and Company. Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,

(a) the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if made, given, furnished or filed in writing to the Trustee at its Corporate Trust Office, or

(b) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, addressed to it at the address of its registered office specified in the first paragraph of this Indenture (unless another address has been previously furnished in writing to the Trustee by the Company.

The Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, Portable Document Format (PDF), facsimile transmission or other similar unsecured electronic methods, provided, however, that the Trustee shall have received from the Company an incumbency certificate listing persons designated to give such instructions or directions and containing the titles and specimen signatures of such designated persons, which such incumbency certificate shall be amended and replaced whenever a person is to be added or deleted from the listing. If the Company elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding a conflict or inconsistency between such instructions and a subsequent written instruction. The Company agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk or interception and misuse by third parties.

 

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Section 1.06 Notice to Holders; Waiver. When this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided), in the case of Global Securities, if given in accordance with the applicable procedures of the Depositary and, in the case of all Capital Securities, if given in writing and mailed, first-class postage prepaid, to each Holder of a registered Capital Security affected by such event in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act with respect to reports pursuant to Section 7.03(a) of this Indenture, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice.

For so long as the Capital Securities of any series are represented by Global Securities, the Company will deliver a copy of all notices with respect to such series to the Depositary for such Capital Security (or its designee).

When notice to Holders of registered Capital Securities is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be determined by the Trustee shall constitute a sufficient notification for every purpose hereunder.

Section 1.07 Conflict with Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required under such Act to be a part of and govern this Indenture, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be. If at any future time any provision required to be included herein by the Trust Indenture Act as in force at the date as of which this Indenture was executed or any limitation imposed by the Trust Indenture Act at such date on any provision otherwise included herein would not be so required or imposed (in whole or in part) if this Indenture were executed at such future time, the Company and the Trustee may enter into one or more indentures supplemental hereto pursuant to Section 9.01 to change or eliminate (in whole or in part) such provision or limitation of this Indenture in conformity with the requirements of the Trust Indenture Act as then in force, except that (subject to Article 9) no provision or limitation required to be included herein by Sections 310(a)(1) and (a)(2), 315(a), (c), (d)(1), (d)(2), (d)(3) and (e), 316(a)(1)(A), (a)(1)(B), (a)(2), (a) (last sentence) and (b) of the Trust Indenture Act as in force at the date as of which this Indenture was executed may be so changed or eliminated.

Section 1.08 Effect of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.

Section 1.09 Successors and Assigns. All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not. All covenants and agreements in this Indenture by the Trustee shall bind its successors and assigns, whether so expressed or not.

Section 1.10 Separability Clause. In case any provision in this Indenture or in the Capital Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

 

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Section 1.11 Benefits of Indenture. Nothing in this Indenture or in the Capital Securities, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder, and the Holders of Capital Securities, any benefit or any legal or equitable right, remedy or claim under this Indenture.

Section 1.12 Governing Law. This Indenture and the Capital Securities shall be governed by and construed in accordance with the laws of the State of New York, except for the subordination provision in Section 12.01 hereof and any subordination provisions applicable to the Capital Securities of a series pursuant to Section 3.01, which shall be governed by and construed in accordance with the laws of The Netherlands, and except that the authorization and execution of this Indenture, the Capital Securities shall be governed (in addition to the laws of the State of New York relevant to execution) by the respective jurisdictions of organization of the Company and the Trustee, as the case may be.

Section 1.13 Saturdays, Sundays and Legal Holidays. The terms of the Capital Securities shall provide that, in any case where any Interest Payment Date, Redemption Date, Maturity or Stated Maturity, if any, of a Capital Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or the Capital Securities other than a provision in the Capital Securities that specifically states that such provision shall apply in lieu of this Section) payments of interest, if any, or principal (and premium, if any) need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment (or such other Business Day as shall be provided in such Capital Security) with the same force and effect as if made on such Interest Payment Date, Redemption Date, Maturity or Stated Maturity, if any, provided that no interest shall accrue on such payment for the period from and after such Interest Payment Date, Redemption Date, Maturity or Stated Maturity, if any, as the case may be.

Section 1.14 Appointment of Agent for Service. The Company hereby appoints ING (U.S.) Financial Holdings Corporation, acting through its office at 1325 Avenue of the Americas, New York, New York (or such other address in the Borough of Manhattan, The City of New York, as such agent shall furnish in writing to the Trustee) as its authorized agent (the “Authorized Agent”) upon which process may be served in any legal action or proceeding against it with respect to its obligations under this Indenture or the Capital Securities of any series, as the case may be, instituted in any federal or state court in the Borough of Manhattan, The City of New York by the Holder of any Capital Security, and agrees that service of process upon the Authorized Agent, together with written notice of said service mailed or delivered to the Company, addressed as provided in Section 1.05, shall be deemed in every respect effective service of process upon the Company in any such legal action or proceeding, and the Company hereby irrevocably submits to the non-exclusive jurisdiction of any such court in respect of any such legal action or proceeding and waives, to the extent it may effectively do so, any objection it may have to the laying of the venue of any such legal action or proceeding. Such appointment shall be irrevocable so long as the Holders of Securities shall have any rights pursuant to the terms of the Capital Securities or of this Indenture until the appointment of a successor Authorized Agent by the Company and such successor’s acceptance of such appointment. The Company reserves the right to appoint another person located, or with an office, in the Borough of Manhattan, The City of New York, selected in its sole discretion, as a successor Authorized Agent, and upon acceptance of such appointment by such a successor the appointment of the prior Authorized Agent shall terminate. If for any reason ING (U.S.) Financial Holdings Corporation ceases to be able to act as the Authorized Agent or to have an address in the Borough of Manhattan, The City of New York, the Company will appoint a successor Authorized Agent in accordance with the preceding sentence. The Company further agrees to take any and all action, including the filing of any and all documents and instruments as may be necessary to continue such designation and appointment of such agent or successor in full force and effect for as long as required hereunder.

 

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Section 1.15 Calculation Agent. If the Company appoints a Calculation Agent pursuant to Section 3.01 with respect to any series of Capital Securities, any determination of the interest rate on, or other amounts in relation to, such series of Capital Securities in accordance with the terms of such series of Capital Securities by such Calculation Agent shall (in the absence of manifest error) be binding on the Company, the Trustee, all Holders and (in the absence of manifest error) no liability to the Holders shall attach to the Calculation Agent in connection with the exercise or non-exercise by it of its powers, duties and discretions.

Section 1.16 Waiver of Jury Trial. EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE CAPITAL SECURITIES OR THE TRANSACTIONS CONTEMPLATED HEREBY.

Section 1.17 Force Majeure. In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.

ARTICLE 2

CAPITAL SECURITY FORMS

Section 2.01 Forms Generally. The Capital Securities of each series shall be in such forms as shall be established by or pursuant to a Board Resolution or other means, and in one or more indentures supplemental hereto, pursuant to Section 3.01, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with any applicable law or rule or regulation made pursuant thereto or with the rules of any securities exchange or as may, consistently herewith, be determined by the officers executing such Capital Securities, all as evidenced by any such execution; provided, however, that such Capital Securities shall have endorsed thereon a statement in the following form or in substantially the following form:

“The rights of the holder of this Capital Security are, to the extent and in the manner set forth in Section [•] of the indenture supplemental to the Indenture that establishes the terms of this Capital Security, subordinated to the claims of other creditors of the Company, and this Capital Security is issued subject to the provisions of that Section [•], and the holder of this Capital Security, by accepting the same, agrees to and shall be bound by such provisions. Such provisions and the terms of this paragraph are governed by, and shall be construed in accordance with, the laws of The Netherlands.”

The Trustee’s certificates of authentication shall be in substantially the form set forth in Section 2.02 or 6.14.

The definitive Capital Securities shall be printed, lithographed or engraved or produced by any combination of these methods or may be produced in any other manner permitted by the rules of any securities exchange on which the Capital Securities may be listed, all as determined by the officers executing such Capital Securities, as evidenced by their execution thereof.

 

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Section 2.02 Form of Trustee’s Certificate of Authentication. The Trustee’s certificate of authentication shall be in substantially the following form:

CERTIFICATE OF AUTHENTICATION

This is one of the Capital Securities of the series designated herein referred to in the within-mentioned Indenture.

Date:                     

 

THE BANK OF NEW YORK MELLON, LONDON BRANCH
as Trustee
By:  
Authorized Signatory

ARTICLE 3

THE CAPITAL SECURITIES

Section 3.01 Amount Unlimited; Issuable in Series. The aggregate principal amount of Capital Securities which may be authenticated and delivered under this Indenture is unlimited. The Capital Securities may be issued in one or more series.

There shall be established by or pursuant to a Board Resolution or other means and, subject to Section 3.03, established in one or more indentures supplemental hereto, prior to the initial issuance of Capital Securities of any series:

(a) the title of the Capital Securities of the series (which shall distinguish the Capital Securities of the series from all other Capital Securities);

(b) any limit upon the aggregate principal amount of the Capital Securities of the series that may be authenticated and delivered under this Indenture (except for Capital Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Capital Securities of the series pursuant to Section 3.04, 3.05, 3.06, 9.06 or 11.07 and except for any Capital Securities which, pursuant to Section 3.03, are deemed never to have been authenticated and delivered hereunder);

(c) the date or dates, if any, on which the principal of (and premium, if any, on) the Capital Securities of the series is payable and whether the Capital Securities of the series are perpetual securities with no scheduled Stated Maturity with respect to the payment of the principal of (and premium, if any, on) the Capital Securities of the series;

(d) under what conditions, if any, the Company may be substituted as the issuer of the Capital Securities of the series (including pursuant to Article 8);

 

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(e) the ranking of the Capital Securities of the series relative to the debt and equity issued by the Company, including to what extent it may rank junior in right of payment to other of the Company’s obligations or in any other manner;

(f) whether the Capital Securities of the series are intended to qualify as capital for capital adequacy purposes;

(g) the applicable interest rate or rates, if any, on the Capital Securities of the series or the manner of calculation of such rate or rates, if any, the date or dates, if any, from which such interest, if any, may accrue, the Interest Payment Dates on which such interest, if any, may be payable or the manner of determination of such Interest Payment Dates and, in the case of registered Capital Securities, the Regular Record Date for the interest payable on any Interest Payment Date, and any dates required to be established pursuant to Section 7.01;

(h) the circumstances, if any, under which any installment of interest on Capital Securities of the series may be cancelled at the Company’s discretion or otherwise, and the limitations, if any, on the Company’s ability to make any payment of principal of (or premium, if any) or interest on Capital Securities of the series, including situations in which the Company would be prohibited from making such payments;

(i) whether any premium, upon redemption or otherwise, shall be payable by the Company on Capital Securities of the series;

(j) whether the Capital Securities of the series are to be issued as Discount Securities and the amount of the discount at which such Discount Securities may be issued;

(k) provisions, if any, for the discharge and defeasance of Capital Securities of the series;

(l) any additional condition to which payment of any principal of (or premium, if any) or interest on Capital Securities of the series will be subject;

(m) the place or places where the principal of (and premium, if any) and any interest on Capital Securities of the series shall be payable, and the Paying Agent or Paying Agents who shall be authorized to pay principal of (and premium, if any) and interest on Capital Securities of such series, at least one of which Paying Agents shall have an office or agency in the Borough of Manhattan, The City of New York;

(n) whether or not such series of Capital Securities are to be redeemable, in whole or in part, at the Company’s option and, if so redeemable, the period or periods within which, the price or prices at which and the terms and conditions upon which, Capital Securities of the series may be redeemed;

(o) if there are any conditions on the Company repurchasing the Capital Securities of the series, such conditions;

(p) if other than denominations of $1,000 and any integral multiple thereof, the denominations in which Capital Securities of the series in each applicable form shall be issuable;

(q) if other than the principal amount thereof, the portion, or the manner of calculation of such portion, of the principal amount of Capital Securities of the series which shall be payable upon a declaration of acceleration or acceleration of the Maturity thereof, if any, pursuant to Section 5.02, upon redemption of Capital Securities of any series which are redeemable before their Stated Maturity, if any, or which the Trustee shall be entitled to file and prove a claim pursuant to Section 5.04;

 

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(r) whether Additional Amounts, pursuant to Section 10.04, will not be payable by the Company;

(s) whether a Global Security will initially be executed and delivered and whether any restrictions will be applicable to the offer, sale or delivery of Capital Securities;

(t) if other than Dollars, provisions, if any, for the Capital Securities of the series to be denominated, and payments thereon to be made, in Euro or Foreign Currencies and specifying the manner and place of payment thereon and any other terms with respect thereto and the manner of determining the equivalent thereof in Dollars for purposes of the definition of “Outstanding” in Section 1.01;

(u) if other than the currency in which the Capital Securities of that series are denominated, the currency in which payment of the principal of (and premium, if any) or interest, if any, on the Capital Securities of such series shall be payable;

(v) if the principal of (and premium, if any) or interest, if any, on the Capital Securities of such series are to be payable, at the election of the Company or a Holder thereof, in a currency other than that in which the Capital Securities are denominated, the period or periods within which, and the terms and conditions upon which, such election may be made;

(w) whether the Capital Securities of the series shall be issued in whole or in part in the form of one or more Global Securities and the initial Holder with respect to such Global Security or Capital Securities;

(x) if the Capital Securities of such series are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary Capital Security of such series or otherwise) only upon receipt of certain certificates or other documents or satisfaction of other conditions, then the form and terms of such certificates, documents or conditions;

(y) if the amounts of payments of principal of (and premium, if any) or interest, if any, on the Capital Securities of the series may be determined with reference to an index or are otherwise not fixed on the original issue date thereof, the manner in which such amounts shall be determined and the Calculation Agent, if any, who shall be appointed and authorized to calculate such amounts;

(z) the terms, if any, on which such Capital Securities may or shall be converted into, at the option of the Company or otherwise, for ordinary shares, depositary receipts or other securities of the Company (“Conversion Securities”), and, if so, the nature and terms of the Conversion Securities into which such Capital Securities are convertible and any additional or other provisions relating to such conversion, including any triggering event that may give rise to such conversion (which may include, but shall not be limited to, certain regulatory capital events), the terms upon which such conversion should occur and any specific terms relating to the adjustment thereof and the period during which such Capital Securities may or shall be so converted;

(aa) any deletions from, limitations or modifications of or additions to, the Events of Default or other remedies or events permitting remedies that apply with respect to the Capital Securities of such series and, if other than as specified in this Indenture, the terms thereof;

(bb) the forms of Capital Securities of the series;

 

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(cc) the respective rights and obligations, if any, of the Company and holders of the Capital Securities of the series following a change of control of the Company, including, if applicable, the terms and conditions under which the Company could be required to redeem or make an offer to purchase Capital Securities of the series; and

(dd) any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture, except as permitted by Section 9.01(d)).

All Capital Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in any indenture supplemental hereto.

The Company may ‘reopen’ a previous issue of a series of Capital Securities and issue additional Capital Securities of that series, provided that the Company will reopen an issuance only if the additional Capital Securities issued in the reopening and the outstanding Capital Securities of the relevant series are fungible for U.S. federal income tax purposes.

If the forms of Capital Securities of any series, or any of the terms thereof, are established by action taken by the Executive Board of the Company, copies of the Board Resolutions in respect thereof shall be delivered to the Trustee at or prior to the delivery of the Company Order pursuant to Section 3.03 for the authentication and delivery of such Capital Securities.

Section 3.02 Denominations. The Capital Securities of each series shall be issuable in such denominations as shall be specified as contemplated by Section 3.01. In the absence of any such specification with respect to the Capital Securities of any series, the Capital Securities of each series shall be issuable in denominations of $1,000 and any integral multiple thereof.

Section 3.03 Execution, Authentication, Delivery and Dating. The Capital Securities shall be executed on behalf of the Company by a Chairman of the Executive Board, a Vice Chairman of the Executive Board, any member of the Executive Board, or the Chief Financial Officer of the Company (or any other officer of the Company designated in writing by or pursuant to authority of the Executive Board and delivered to the Trustee from time to time). The signature of any of these officers on the Capital Securities may be manual or facsimile. Capital Securities bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Capital Securities.

At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Capital Securities of any series executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Capital Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver such Capital Securities. In authenticating such Capital Securities and accepting the additional responsibilities under this Indenture in relation to such Capital Securities the Trustee shall be entitled to receive, and (subject to Section 6.01) shall be fully protected in relying upon, an Officer’s Certificate and an Opinion of Counsel, each stating that the form and terms thereof have been established in conformity with the provisions of this Indenture, and complying with Section 1.02.

The Trustee shall not be required to authenticate such Capital Securities if the issue of such Capital Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Capital Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.

 

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Each registered Capital Security shall be dated the date of its authentication.

No Capital Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Capital Security a certificate of authentication substantially in the form provided for herein executed by or on behalf of the Trustee by manual signature, and such certificate upon any Capital Security shall be conclusive evidence, and the only evidence, that such Capital Security has been duly authenticated and delivered hereunder and that such Capital Security is entitled to the benefits of this Indenture. Notwithstanding the foregoing, if any Capital Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Capital Security to the Trustee for cancellation as provided in Section 3.09, for all purposes of this Indenture such Capital Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.

Section 3.04 Temporary Capital Securities. Pending the preparation of definitive Capital Securities of any series, the Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Capital Securities substantially of the tenor of the definitive Capital Securities in lieu of which they are issued, which Capital Securities may be printed, lithographed, typewritten, photocopied or otherwise produced. Temporary Capital Securities may be issued as registered Capital Securities in any authorized denomination, and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Capital Securities may determine, all as evidenced by such execution.

If temporary Capital Securities of any series are issued, the Company will cause, if so required by the terms of such temporary Capital Securities, definitive Capital Securities of such series to be prepared without unreasonable delay. After the preparation of definitive Capital Securities of such series, the temporary Capital Securities of such series shall be exchangeable for definitive Capital Securities of such series containing identical terms and provisions upon surrender of the temporary Capital Securities of such series at the office or agency of the Company in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Capital Securities of any series the Company shall execute, and the Trustee shall authenticate and deliver in exchange therefor, a like aggregate principal amount of definitive Capital Securities of the same series of authorized denominations containing identical terms and provisions. Until so exchanged, unless otherwise provided therein or in a supplemental indenture relating thereto, the temporary Capital Securities of any series shall in all respects be entitled to the same benefits (but shall be subject to all the limitations of rights) under this Indenture as definitive Capital Securities of such series.

Section 3.05 Registration, Registration of Transfer and Exchange.

(a) The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register (the register maintained in such office and in any other office or agency of the Company in a Place of Payment being herein sometimes collectively referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Capital Securities and of transfers of Capital Securities. The Trustee is hereby appointed “Security Registrar” for the purpose of registering Capital Securities and transfers of Capital Securities as herein provided.

Upon surrender for registration of transfer of any Capital Security of a series at the office or agency of the Company in a Place of Payment for that series, the Company shall execute, and the Trustee shall authenticate and make available for delivery, in the name of the designated transferee or transferees, one or more new Capital Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount.

 

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At the option of the Holder, Capital Securities of any series may be exchanged for other Capital Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount upon surrender of the Capital Securities to be exchanged at such office or agency. Whenever any Capital Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and make available for delivery, the Capital Securities which the Holder making the exchange is entitled to receive.

All Capital Securities issued upon any registration of transfer or exchange of Capital Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Capital Securities surrendered upon such registration of transfer or exchange.

Every Capital Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed, by the Holder thereof or his attorney duly authorized in writing.

No service charge shall be made for any registration of transfer or exchange of Capital Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Capital Securities, other than exchanges pursuant to Section 3.04, 9.06 or 11.07 not involving any transfer.

If the Capital Securities of any series (or of any series and specified tenor) are to be redeemed in part, the Company shall not be required (i) to issue, register the transfer of or exchange any Capital Securities of that series (or of that series and specified tenor, as the case may be) during a period beginning at the opening of business fifteen (15) days before the day of the mailing of a notice of redemption of any such Capital Securities selected for redemption under Section 11.03 and ending at the close of business on the day of such mailing, or (ii) to register the transfer of or exchange any Capital Security so selected for redemption in whole or in part, except the unredeemed portion of any Capital Security being redeemed in part.

(b) The provisions of this Section 3.05(b) shall apply only to Global Securities unless otherwise specified as contemplated by Section 3.01:

(i) Each Global Security authenticated under this Indenture shall be registered in the name of the Depositary designated for such Global Security or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Security shall constitute a single Capital Security for all purposes of this Indenture.

(ii) Notwithstanding any other provision in this Indenture, no Global Security may be exchanged in whole or in part for Capital Securities registered, and no transfer of a Global Security in whole or in part may be registered, in the name of any Person other than the Depositary for such Global Security or a nominee thereof unless (A) such Depositary (x) has notified the Company that it is unwilling or unable to continue as Depositary for such Global Security or (y) has ceased to be a clearing agency registered under the Exchange Act, (B) there shall have occurred and be continuing an Event of Default with respect to such Global Security, (C) at any time if the Company at its option and in its sole discretion determines that the Global Securities of a particular series should be exchanged for definitive Capital Securities of that series in registered form or (D) there shall exist such circumstances, if any, in addition to or in lieu of the foregoing as have been specified for this purpose as contemplated by Section 3.01.

 

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(iii) Subject to Clause (ii) above, any exchange of a Global Security for other Capital Securities may be made in whole or in part, and all Capital Securities issued in exchange for a Global Security or any portion thereof shall be registered in such names as the Depositary for such Global Security shall direct.

(iv) Every Capital Security authenticated and made available for delivery upon registration of transfer of, or in exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to this Section 3.05, Section 3.04, 3.06, 9.06 or 11.07 or otherwise, shall be authenticated and delivered in the form of, and shall be, a Global Security, unless such Capital Security is registered in the name of a Person other than the Depositary for such Global Security or a nominee thereof.

Section 3.06 Mutilated, Destroyed, Lost and Stolen Capital Securities. If any mutilated Capital Security (including any Global Security) is surrendered to the Trustee, the Company may execute and the Trustee shall, in the case of a Capital Security, authenticate and deliver, in exchange therefor a new Capital Security of the same series containing identical terms and provisions and of like amount, and bearing a number not contemporaneously outstanding.

If there shall be delivered to the Company and to the Trustee (a) evidence to their satisfaction of the destruction, loss or theft of any Capital Security (including any Global Security) and (b) such security or indemnity as may be required by them to save each of them and any agent of any of them harmless, then, in the absence of notice to the Company or the Trustee that such Capital Security has been acquired by a bona fide purchaser, the Company shall execute and upon its request the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Capital Security a new Capital Security of the same series containing identical terms and provisions and of the amount, and bearing a number not contemporaneously outstanding.

In case any such mutilated, destroyed, lost or stolen Capital Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Capital Security, pay such Capital Security.

Upon the issuance of any new Capital Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.

Every new Capital Security of any series issued pursuant to this Section in lieu of any destroyed, lost or stolen Capital Security shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Capital Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Capital Securities of that series duly issued hereunder.

The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Capital Securities.

 

Section 3.07 Payment; Interest Rights Preserved. Except as otherwise provided as contemplated by Section 3.01 with respect to any series of Capital Securities, interest, if any, on any Capital Securities which is payable, and is paid or duly provided for, on any Interest Payment Date shall be paid, in the case of registered Capital Securities, to the Person in whose name that Capital Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for

 

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such interest by check made in next-day funds. All other payments will be made by check to the Paying Agent, against surrender of the Capital Security. All payments by check will be made in next-day funds. In the case of registered Capital Securities with a face amount of at least $1,000,000, at the request of the Holder, payment will be made by wire transfer of immediately available funds to an account at a bank in The City of New York. 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 in whose name that Capital Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest. In the case of any other payment, payment will be made only after the Capital 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 described above.

In the case of Global Securities, payment will be made in accordance with the applicable Depositary procedures as in effect from time to time.

In the case of registered Capital Securities where payment is to be made in a Foreign Currency or Euro, payment will be made as established pursuant to Section 3.01.

Subject to the foregoing provisions of this Section, each Capital Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Capital Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Capital Security.

Section 3.08 Persons Deemed Owners. Prior to due presentment of a registered Capital Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Capital Security is registered as the owner of such Capital Security for the purpose of receiving (subject to Section 3.07) payment of principal of (and premium, if any) and interest, if any, on such Capital Security and for all other purposes whatsoever, whether or not such Capital Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.

Section 3.09 Cancellation. All Capital Securities surrendered for payment, redemption, registration of transfer or exchange or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The Company may at any time deliver to the Trustee for cancellation any Capital Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other person for delivery to the Trustee) for cancellation any Capital Securities previously authenticated hereunder which the Company has not issued and sold, and all Capital Securities so delivered shall be promptly cancelled by the Trustee. No Capital Securities shall be authenticated in lieu of or in exchange for any Capital Securities cancelled as provided in this Section, except as expressly permitted by the provisions of the Capital Securities of any series or pursuant to the provisions of this Indenture. The Trustee shall deliver to the Company all cancelled Capital Securities held by the Trustee.

Section 3.10 Computation of Interest. Payments of interest on the Capital Securities of each series shall be computed on the applicable basis set forth pursuant to Section 3.01 for Capital Securities for such series.

 

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Section 3.11 CUSIP Numbers. The Company in issuing the Capital Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Capital Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Capital Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company shall promptly notify the Trustee in writing of any change in the “CUSIP” numbers.

ARTICLE 4

SATISFACTION AND DISCHARGE

Section 4.01 Satisfaction and Discharge of Indenture. This Indenture shall upon Company Request cease to be of further effect with respect to Capital Securities of any series (except as to any surviving rights of registration of transfer or exchange of Capital Securities of such series herein expressly provided for), and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture with respect to the Capital Securities of such series when:

(a) all Capital Securities of such series theretofore authenticated and delivered (other than (x) Capital Securities which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 3.06 and (y) Capital Securities for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 10.03) have been delivered to the Trustee for cancellation;

(b) the Company has paid or caused to be paid all other sums payable hereunder by the Company with respect to the Capital Securities of such series; and

(c) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture with respect to the Capital Securities of such series have been complied with.

Notwithstanding any satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 6.07, the obligations of the Trustee to any Authenticating Agent under Section 6.14 shall survive such satisfaction and discharge.

ARTICLE 5

REMEDIES

Section 5.01 Events of Default. Except as otherwise provided as contemplated by Section 3.01 with respect to any series of Capital Securities, “Event of Default,” wherever used herein with respect to a particular series of Capital Securities, means (a) (i) the making by a court of competent jurisdiction in The Netherlands (or such other jurisdiction in which the Company may be organized) of an order for the winding up of the Company which is not successfully appealed within thirty (30) days of the making of such order, or (ii) the adoption by shareholders of the Company of an effective resolution for the winding up of the Company (other than, in the case of either (i) or (ii) above, under or in connection with a scheme of reconstruction, merger or amalgamation not involving a bankruptcy or insolvency); or (b) any other Event of Default provided with respect to Capital Securities of such series pursuant to Section 3.01.

 

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Section 5.02 Acceleration of Maturity; Rescission and Annulment. Except as otherwise provided as contemplated by Section 3.01 with respect to any series of Capital Securities, if an Event of Default occurs with respect to Capital Securities of any series and is continuing, then in every such case the Trustee or the Holder or Holders of not less than 25% in aggregate principal amount of the Outstanding Capital Securities of such series may declare the principal amount of (or, in the case of Discount Securities, such portion of the principal amount of such Discount Securities as may be specified by the terms thereof), and any accrued but unpaid interest, if any, on, all the Capital Securities of that series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by such Holder or Holders), and upon any such declaration such principal amount (or specified amount) shall become immediately due and payable, and payments on the Capital Securities of such series shall be subject to any subordination provisions applicable to the Capital Securities of that series pursuant to Section 3.01.

At any time after such a declaration of acceleration with respect to Capital Securities of any series has been made but before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, such declaration of acceleration and its consequences (including any Event of Default under another series of Capital Securities arising therefrom) shall be rescinded but only if the Company has paid or deposited with the Trustee a sum sufficient to pay

(a) the principal of (and premium, if any, on) any Capital Securities of such series which has become due otherwise than by such declaration of acceleration, if any, and any due and payable interest, if any, and overdue interest, if any, thereon at the rate or rates prescribed therefor in such Capital Securities; and

(b) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.

No such rescission shall affect any subsequent Event of Default, if any, or impair any right consequent thereon.

Section 5.03 Collection of Indebtedness and Suits for Enforcement by Trustee.

(a) Other than the limited remedies specified in Section 5.02, if an Event of Default with respect to Capital Securities of any series occurs and is continuing, no remedy against the Company shall be available to the Trustee or any Holder of the Capital Securities, whether for the recovery of amounts owing in respect of the Capital Securities of such series or under this Indenture or in respect of any breach by the Company of any of its other obligations under or in respect of the Capital Securities of such series or under this Indenture, provided that (i) the Company’s obligations to the Trustee under Section 6.07 and the Trustee’s rights to have money collected applied first to pay amounts due to it under such Section pursuant to Section 5.06 expressly survive any such Event of Default and are not subject to any subordination provisions applicable to the Capital Securities of such series pursuant to Section 3.01 and (ii) the Trustee shall have such powers as are required to be authorized to it under the Trust Indenture Act in respect of the rights of the Holders of such Capital Securities in response to such Event of Default under the provisions of this Indenture, and provided, further, that any payments on the Capital Securities of such series are subject to any subordination provisions applicable to the Capital Securities of that series pursuant to Section 3.01.

(b) Subject to applicable law and unless the relevant Capital Securities provide otherwise, claims in respect of any Capital Security may not be set off, or be the subject of a counterclaim, by the Trustee or any Holder against or in respect of any of its obligations to the Company, and the Trustee and every Holder waives, and shall be treated for all purposes as if it had waived, any right that it might otherwise have to set-off, or to raise by way of counterclaim any of its claims in respect of any Capital Securities or this Indenture, against or in respect of any of its obligations to the Company. No Holder of Capital Securities shall be entitled to proceed directly against the Company except as set forth in Section 5.07.

 

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(c) No recourse for the payment of the principal of (or premium, if any) or interest, if any, on any Capital Security, or for any claim based thereon or otherwise in respect thereof and no recourse under or upon any obligation, covenant or agreement of the Company in this Indenture, or in any Capital Security, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, officer or director, past, present or future, of the Company or of any successor corporation of the Company, either directly or through the Company or any successor corporation of the Company, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, it being expressly understood that to the extent lawful all such liability is hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issue of the Capital Securities.

Section 5.04 Trustee May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition, winding up or other judicial proceeding relative to the Company or any other obligor upon the Capital Securities of any series or to the property of the Company or such other obligor or their creditors (other than under or in connection with a scheme of amalgamation or reconstruction not involving bankruptcy or insolvency), the Trustee shall be entitled and empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such proceeding. In particular, the Trustee shall be authorized to collect and receive any moneys and other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder of a Capital Security to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to such Holders or holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due to the Trustee under Section 6.07.

Subject to Article 8 and Section 9.02, nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder of any Capital Security any plan of reorganization, arrangement, adjustment, or composition affecting any Capital Securities or the rights of any Holder of any Capital Security or to authorize the Trustee to vote in respect of the claim of any such Holder or holder in any such proceeding; provided that the Trustee may, on behalf of the Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors’ or other similar committee.

With respect to the Capital Securities, the provisions of this Section 5.04 are subject to any subordination provisions applicable to the Capital Securities pursuant to Section 3.01.

Section 5.05 Trustee May Enforce Claims Without Possession of Capital Securities. All rights of action and claim under this Indenture or the Capital Securities may be prosecuted and enforced by the Trustee without the possession of any of the Capital Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel (subject, with regard to the Company, to any subordination provisions applicable to the Capital Securities pursuant to Section 3.01) be for the ratable benefit of the Holders of the Capital Securities in respect of which such judgment has been recovered.

 

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Section 5.06 Application of Money Collected. Any money collected by the Trustee pursuant to this Article in respect of any series of Capital Securities shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal (and premium, if any) or interest, if any, upon presentation of such Capital Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:

FIRST: To the payment of all amounts applicable to such series of Capital Securities in respect of which or for the benefit of which such money has been collected due the Trustee under Section 6.07;

SECOND: Subject to any subordination provisions applicable to the Capital Securities pursuant to Section 3.01, to the payment of the amounts then due and unpaid for principal of (and premium, if any) and interest, if any, on such series of Capital Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Capital Securities for principal, if any, (and premium, if any) and interest, if any, respectively; and

THIRD: To the payment of the balance, if any, to the Company or as a court of competent jurisdiction may direct.

Section 5.07 Limitation on Suits. No Holder of any Capital Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless

(a) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to Capital Securities of the same series specifying such Event of Default and stating that such notice is a “Notice of Default” hereunder;

(b) the Holders of not less than 25% in aggregate principal amount of the Outstanding Capital Securities of such series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name, as Trustee hereunder;

(c) such Holder of a Capital Security has offered to the Trustee security or indemnity satisfactory to the Trustee in its sole discretion against the costs, expenses and liabilities to be incurred in compliance with such request;

(d) the Trustee for sixty (60) days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and

(e) no direction inconsistent with such written request has been given to the Trustee during such sixty-day (60-day) period by the Holders of a majority in principal amount of the Outstanding Capital Securities of such series;

it being understood and intended that no one or more Holders of Capital Securities of a particular series appertaining thereto shall have any right in any manner whatever by virtue of, or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of any other such Holders or holders, or to obtain or to seek to obtain priority or preference over any other such Holders or holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all Holders of Capital Securities of such series.

 

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Section 5.08 Unconditional Right of Holders to Receive Principal, Premium and Interest, if any. To the extent required by the Trust Indenture Act, and subject to any subordination and/or other provisions applicable to the Capital Securities pursuant to Section 3.01 but otherwise notwithstanding any other provision in this Indenture, the Holder of any Capital Security shall have the right to receive (subject to Section 3.07) payment of any principal of (and premium, if any) and interest, if any, on such Capital Security on the respective Stated Maturities, if any, as expressed in such Capital Security (or, in the case of redemption, on or after the Redemption Date), and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder or holder.

Section 5.09 Restoration of Rights and Remedies. If the Trustee or any Holder of any Capital Security has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder or holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders of Capital Securities shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders of Capital Securities shall continue as though no such proceeding had been instituted.

Section 5.10 Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Capital Securities in the last paragraph of Section 3.06, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders of Capital Securities is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.

Section 5.11 Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Capital Security to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders of Capital Securities may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders of Capital Securities, as the case may be.

Section 5.12 Control by Holders. The Holders of a majority in aggregate principal amount of the Outstanding Capital Securities of any series shall 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 Capital Securities of such series, provided that

(a) such direction shall not be in conflict with any rule of law or with this Indenture, as determined by the Trustee in its sole discretion;

(b) such direction shall not be unjustly prejudicial to the Holders of the Capital Securities of such series not taking part in the direction, as determined by the Trustee in its sole discretion;

(c) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction; and

(d) no provision herein shall be deemed to require the Trustee to take any action or forebear from any action directed by Holders unless the Trustee has received security and/or indemnity satisfactory to it in its sole discretion.

 

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Section 5.13 Waiver of Past Events of Default. The Holders of not less than a majority in aggregate principal amount of the Outstanding Capital Securities of any series may on behalf of the Holders of all the Capital Securities of such series waive any past Event of Default hereunder with respect to such series and its consequences.

Upon any such waiver, such Event of Default shall cease to exist, and any Event of Default with respect to any series arising therefrom shall be deemed to have been cured and not to have occurred for every purpose of this Indenture, but no such waiver shall extend to any subsequent or other Event of Default or impair any right consequent thereon.

Section 5.14 Undertaking for Costs. All parties to this Indenture agree, and each Holder of any Capital Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant to such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder or group of Holders holding in the aggregate more than 10% in principal amount of the Outstanding Capital Securities of any series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of (or premium, if any) or interest, if any, on any Capital Security on or after the respective Stated Maturities, if any, expressed in such Capital Security (or, in the case of redemption, on or after the Redemption Date).

Section 5.15 Waiver of Usury, Stay or Extension Laws. The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.

ARTICLE 6

THE TRUSTEE

Section 6.01 Certain Duties and Responsibilities.

(a) The duties and responsibilities of the Trustee shall be as provided by the Trust Indenture Act and this Indenture. Notwithstanding the foregoing, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section.

(b) Except during the continuance of an Event of Default,

(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and

 

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(ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).

(c) In case an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.

(d) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that

(i) this Subsection shall not be construed to limit the effect of subsection (b) of this Section;

(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and

(iii) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority in principal amount of the Outstanding Capital Securities of any series.

Section 6.02 Notice of Events of Default. Within ninety (90) days after the occurrence of any Event of Default hereunder with respect to Capital Securities of any series the Trustee shall transmit in the manner and to the extent provided in Section 1.06 to Holders of Capital Securities of such series notice of such Event of Default hereunder upon receipt of written notice by a Responsible Officer of the Trustee, unless such Event of Default shall have been cured or waived; provided, however, that the Trustee shall be protected in withholding such notice if a trust committee of Responsible Officers of the Trustee determine in good faith that the withholding of such notice is in the interest of the Holders of Capital Securities of such series.

Section 6.03 Certain Rights of Trustee. Subject to the provisions of Section 6.01:

(a) the Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon or other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;

(b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and any action or resolution of the Board of Directors of the Company shall be sufficiently evidenced by a Board Resolution or other means;

(c) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate;

 

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(d) the Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in conclusive reliance thereon;

(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity satisfactory to the Trustee in its sole discretion against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;

(f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon or other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, provided that the Company shall not be required to disclose such information which the Company is prevented from disclosing as a matter of law or contract;

(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;

(h) the Trustee shall not be liable for any action taken or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;

(i) in no event shall the Trustee be responsible or liable to the Company for punitive damages or any special, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;

(j) the Trustee shall not be deemed to have notice or actual knowledge of any Event of Default unless written notice of any event which is in fact such an Event of Default is received by a Responsible Officer of the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Capital Securities and this Indenture;

(k) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Person acting as Trustee in each of its other capacities hereunder;

(l) the Trustee may request that the Company deliver a certificate setting forth the names of individuals and titles of officers authorized to take specified actions pursuant to this Indenture; and

(m) money held by the Trustee and any Paying Agent in trust hereunder may be held uninvested and the Trustee and any Paying Agent shall be under no liability for interest on any money received by it hereunder except as otherwise agreed in writing with the Company.

Section 6.04 Not Responsible for Recitals or Issuance of Capital Securities. The recitals contained herein and in the Capital Securities, except the Trustee’s certificates of authentication, shall be taken as the statements of the Company, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or

 

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sufficiency of this Indenture or of the Capital Securities, except that the Trustee represents and warrants that it has duly authorized, executed and delivered this Indenture. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of Capital Securities or the proceeds thereof.

Section 6.05 May Hold Capital Securities. The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar and any Calculation Agent or any other agent of the Company, in its individual or any other capacity, may become the owner or pledgee of Capital Securities and, subject to Sections 6.08 and 6.13, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar, Calculation Agent or such other agent.

Section 6.06 Money Held in Trust. Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed in writing with the Company.

Section 6.07 Compensation and Reimbursement. The Company agrees

(a) to pay to the Trustee from time to time such compensation for all services rendered by it hereunder as agreed in writing by the Company from time to time (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);

(b) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and

(c) to indemnify the Trustee, its directors, officers, employees and agents and any predecessor Trustee for, and to hold it harmless against, any loss, claim, damage, liability or expense incurred without negligence or willful misconduct on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder but excluding any tax liabilities of the Trustee based upon, measured by or determined by the income of the Trustee.

(d) The Trustee shall notify the Company in writing of the commencement of any action or claim in respect of which indemnification may be sought promptly after the Trustee becomes aware of such commencement (provided that the failure to make such notification shall not affect the Trustee’s rights hereunder) and the Company shall be entitled to participate in, and to the extent it shall wish, to assume the defense thereof, including the employment of counsel reasonably satisfactory to the Trustee; provided, however, that if the Trustee determines that an actual or potential conflict of interest exists then the Trustee shall be entitled to retain separate counsel and the Company shall pay the fees and expenses of such counsel. The Trustee shall not compromise or settle any such action or claim without the written consent of the Company, which consent shall not be unreasonably withheld.

(e) As security for the performance of the obligations of the Company under this Section 6.07, the Trustee shall have a senior claim to which the Capital Securities are hereby made subordinate, upon all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of (or premium, if any) or interest, if any, on the Capital Securities. The provisions of this Section 6.07 shall survive the termination of this Indenture or the earlier resignation or removal of the Trustee and any exercise of the Netherlands Bail-In Power by the relevant Netherlands Resolution Authority with respect to any series of Capital Securities.

 

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Section 6.08 Disqualification; Conflicting Interests. If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. To the extent permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee under this Indenture with respect to Securities of more than one series or with respect to the Subordinated Guarantee with respect to the Trust Securities of ING Capital Funding Trust I, the Subordinated Guarantee with respect to the Company Preferred Securities of ING Capital Funding I LLC, the Guarantee in favor of ING Capital Funding I LLC, the Subordinated Guarantee with respect to the Trust Securities of ING Capital Funding Trust II, the Subordinated Guarantee with respect to the Company Preferred Securities of ING Capital Funding II LLC, the Guarantee in favor of ING Capital Funding II LLC, the Subordinated Guarantee with respect to the Trust Securities of ING Capital Funding Trust III, the Subordinated Guarantee with respect to the Company Preferred Securities of ING Capital Funding III LLC, the Guarantee in favor of ING Capital Funding III LLC, the Subordinated Guarantee with respect to the Trust Securities of ING Capital Funding Trust IV, the Subordinated Guarantee with respect to the Company Preferred Securities of ING Capital Funding IV LLC, the Guarantee in favor of ING Capital Funding IV LLC, the Subordinated Guarantee with respect to the Trust Securities of ING Capital Funding Trust V, the Subordinated Guarantee with respect to the Company Preferred Securities of ING Capital Funding V LLC, the Guarantee in favor of ING Capital Funding V LLC, the Subordinated Guarantee with respect to the Trust Securities of ING Capital Funding Trust VI, the Subordinated Guarantee with respect to the Company Preferred Securities of ING Capital Funding VI LLC, and the Guarantee in favor of ING Capital Funding VI LLC.

Section 6.09 Corporate Trustee Required; Eligibility. There shall at all times be a Trustee hereunder with respect to each series which shall be a corporation organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $50,000,000, subject to supervision or examination by Federal or State or District of Columbia authority and, if there be such corporation willing and able to act as trustee on reasonable and customary terms, having its corporate trust office or agency in the Borough of Manhattan, The City of New York. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.

Section 6.10 Resignation and Removal; Appointment of Successor.

(a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 6.11.

(b) The Trustee may resign at any time with respect to the Capital Securities of one or more series by giving written notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 6.11 shall not have been delivered to the Trustee within thirty (30) days after the giving of such notice of resignation or notice of removal as described below, the resigning or removed Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Capital Securities of such series.

 

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(c) The Trustee may be removed at any time with respect to the Capital Securities of any series by Act of the Holders of a majority in principal amount of the Outstanding Capital Securities of such series delivered to the Trustee and to the Company.

(d) If at any time:

(i) the Trustee shall fail to comply with Section 6.08 after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Capital Security of the series as to which the Trustee has a conflicting interest for at least six (6) months, or

(ii) the Trustee shall cease to be eligible under Section 6.09 and shall fail to resign after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Capital Security for at least six (6) months, or

(iii) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge, or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,

then, in any such case, (x) the Company by a Board Resolution or other means may remove the Trustee with respect to any or all series of Capital Securities or (y) subject to Section 5.14, any Holder who has been a bona fide Holder of a Capital Security for at least six (6) months (and, in the case of subparagraph (d)(i) above, who is a Holder of a Capital Security of the series as to which the Trustee has a conflicting interest) may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Capital Securities and the appointment of a successor Trustee or Trustees.

(e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Capital Securities of one or more series, the Company, by a Board Resolution or other means, shall promptly appoint a successor Trustee or Trustees with respect to the Capital Securities of such series (it being understood that any successor Trustee may be appointed with respect to the Capital Securities of one or more or all of such series and at any time there shall be only one Trustee with respect to the Capital Securities of any particular series), and shall comply with the applicable requirements of Section 6.11. If, within one (1) year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Capital Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Capital Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 6.11, become the successor Trustee with respect to the Capital Securities of such series and to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Capital Securities of any series shall have been so appointed by the Company or the Holders of Capital Securities of such series and accepted appointment in the manner hereinafter required by Section 6.11, any Holder who has been a bona fide Holder of a Capital Security of such series for at least six (6) months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Capital Securities of such series.

 

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(f) The Company shall give notice of each resignation and each removal of the Trustee with respect to the Capital Securities of any series and each appointment of a successor Trustee with respect to the Capital Securities of any series in the manner and to the extent provided in Section 1.06. Each notice shall include the name of the successor Trustee with respect to the Capital Securities of such series and the address of its Corporate Trust Office.

Section 6.11 Acceptance of Appointment by Successor.

(a) In case of the appointment hereunder of a successor Trustee with respect to all Capital Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee, all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.

(b) In case of the appointment hereunder of a successor Trustee with respect to the Capital Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with respect to the Capital Securities of such series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (i) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Capital Securities of such series to which the appointment of such successor Trustee relates, (ii) if the retiring Trustee is not retiring with respect to all Capital Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Capital Securities of such series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (iii) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Capital Securities of such series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Capital Securities of such series to which the appointment of such successor Trustee relates.

(c) Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be.

(d) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.

Section 6.12 Merger, Conversion, Consolidation or Succession to Business. Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be

 

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the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Capital Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Capital Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Capital Securities.

Section 6.13 Preferential Collection of Claims. If and when the Trustee shall be or become a creditor of the Company (or any other obligor upon the Capital Securities of a series), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company (or any such other obligor).

Section 6.14 Appointment of Authenticating Agent. The Trustee may at any time appoint an Authenticating Agent or Agents with respect to one or more series of Capital Securities which shall be authorized to act on behalf of the Trustee to authenticate Capital Securities of such series upon original issue, or issued upon exchange, registration of transfer or partial redemption thereof or in lieu of destroyed, lost or stolen Capital Securities, and Capital Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Capital Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation or national banking association organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by Federal or State or District of Columbia authority. If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.

Any corporation or national banking association into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation or national banking association resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation or national banking association succeeding to the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation or national banking association shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.

An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall give notice to the Holders of Capital Securities in the manner and to the extent provided in Section 1.06. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.

 

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If an appointment with respect to one or more series is made pursuant to this Section, the Capital Securities of such series may have endorsed thereon, in lieu of the Trustee’s certificate of authentication, an alternate certificate of authentication in the following form:

CERTIFICATE OF AUTHENTICATION

This is one of the Capital Securities of the series designated herein referred to in the within-mentioned Indenture.

Date:                              

 

THE BANK OF NEW YORK MELLON, LONDON BRANCH
        as Trustee
By:

 

as Authenticating Agent
By:

 

Authorized Signatory

If all of the Capital Securities of a series may not be originally issued at one time, and if the Trustee does not have an office capable of authenticating Capital Securities upon original issuance located in a Place of Payment where the Company wishes to have Capital Securities of such series authenticated upon original issuance, the Trustee, if so requested by the Company in writing (which writing need not comply with Section 1.02 and need not be accompanied by an Opinion of Counsel), shall appoint in accordance with this Section an Authenticating Agent having an office in a Place of Payment designated by the Company with respect of such series of Capital Securities.

ARTICLE 7

HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY

Section 7.01 Company to Furnish Trustee Names and Addresses of Holders. The Company, with respect to any series of Capital Securities in registered form, will furnish or cause to be furnished to the Trustee

(a) not more than fifteen (15) days after each Regular Record Date (or after each of the dates to be specified for such purpose for non-interest bearing Capital Securities and Capital Securities on which interest is paid less frequently than quarterly as contemplated by Section 3.01), a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of registered Capital Securities as of such Regular Record Date or such specified date, and

(b) at such other times as the Trustee may request in writing, within thirty (30) days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than fifteen (15) days prior to the time such list is furnished.

 

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The Company need not furnish or cause to be furnished to the Trustee pursuant to this Section 7.01 the names and addresses of Holders of registered Capital Securities so long as the Trustee acts as Security Registrar with respect to such series of Capital Securities.

Section 7.02 Preservation of Information; Communications to Holders.

(a) The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders (i) contained in the most recent list furnished to the Trustee as provided in Section 7.01 and (ii) received by the Trustee in its capacity as Paying Agent or Security Registrar (if so acting). The Trustee may destroy any list furnished to it as provided in Section 7.01 upon receipt of a new list so furnished.

(b) The rights of the Holders of Capital Securities of any series to communicate with other Holders with respect to their rights under this Indenture or under the Capital Securities, and the corresponding rights and privileges of the Trustee, shall be as provided by the Trust Indenture Act.

(c) Every Holder, by receiving and holding a Capital Security, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any agent of any of them shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders in accordance with Section 7.02(b).

Section 7.03 Reports by Trustee.

(a) So long as any Capital Securities are Outstanding hereunder, the Trustee shall transmit to Holders as provided in the Trust Indenture Act such reports dated as of such dates as are required by and in compliance with the Trust Indenture Act. Reports so required to be transmitted at stated intervals of not more than twelve (12) months shall be transmitted on or before June 1 in each year following the date hereof.

(b) A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each securities exchange upon which the Trustee has been notified that the Capital Securities are listed, with the Commission and with the Company. The Company will notify the Trustee when Capital Securities are listed on any securities exchange.

(c) The Company will furnish the Trustee with interim and annual reports. In addition, the Company will furnish the Trustee with all notices of meetings at which Holders of Capital Securities of a particular series are entitled to vote, and all other reports and communications that are made generally available to Holders of Capital Securities. The Trustee will, at the Company’s expense, make such notices, reports and communications available for inspection by Holders of Capital Securities in such manner as the Company may determine and, in the case of any notice received by the Trustee in respect of any meeting at which Holders of Capital Securities of a particular series are entitled to vote, will deliver to all such record Holders of Capital Securities, at the Company’s expense, a notice containing a summary prepared by the Company of the information set forth in such notice of meeting.

Section 7.04 Reports by Company. The Company shall:

(a) file with the Trustee, within fifteen (15) days after the Company is required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Company may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not required to file

 

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information, documents or reports pursuant to either of such Sections, then it shall file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the Exchange Act in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations;

(b) file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such additional information, documents and reports with respect to compliance by the Company with the conditions and covenants of this Indenture as may be required from time to time by such rules and regulations; and

(c) transmit to Holders, in the manner and to the extent required by the Trust Indenture Act, within thirty (30) days after the filing thereof with the Trustee, such summaries of any information, documents and reports required to be filed by the Company pursuant to paragraphs (a) and (b) of this Section as may be required by rules and regulations prescribed from time to time by the Commission.

Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute actual or constructive knowledge or notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).

ARTICLE 8

CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER

Section 8.01 Company May Consolidate, etc. Only on Certain Terms. Unless otherwise specified in any Board Resolution establishing the terms of Capital Securities of a series in accordance with Section 3.01, the Company shall not consolidate with or merge into any other Person or convey or transfer or lease its properties and assets substantially as an entirety to any Person, and the Company shall not permit any Person to consolidate with or merge into the Company, unless:

(a) in case the Company shall consolidate with or merge into another Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person, the Person formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer or which leases the properties and assets of the Company substantially as an entity shall be a corporation, partnership or trust, shall be organized and validly existing under the laws of any domestic or foreign jurisdiction and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of and any premium and interest, if any, on all the Capital Securities if and to the extent due and payable in accordance with the terms of such Capital Securities and this Indenture and the performance or observance of every covenant of this Indenture on the part of the Company to be performed or observed;

(b) immediately after giving effect to such transaction and treating any indebtedness which becomes an obligation of the Company or any Subsidiary as a result of such transaction as having been incurred by the Company or such Subsidiary at the time of such transaction, no Event of Default and no event which, after notice or lapse of time or both, would become an Event of Default shall have happened and be continuing; and

 

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(c) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.

Section 8.02 Successor Person Substituted. Upon any consolidation of the Company with, or merger of the Company into, any other Person or any conveyance, transfer or lease of the properties and assets of the Company substantially as an entirety in accordance with Section 8.01, the successor Person formed by such consolidation or into which the Company is merged or to which such conveyance, transfer or lease is made shall succeed to and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Capital Securities.

ARTICLE 9

SUPPLEMENTAL INDENTURES

Section 9.01 Supplemental Indentures Without Consent of Holders. Without the consent of any Holders, the Company, when authorized by a Board Resolution or other means, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:

(a) to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of the Company herein and in the Capital Securities; or

(b) to add to the covenants of the Company for the benefit of the Holders of all or any series of Capital Securities (and, if such covenants are to be for the benefit of less than all series of Capital Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company; or

(c) to add any additional Events of Default for the benefit of the Holders of all or any series of Capital Securities (and, if such additional Events of Default are to be for the benefit of less than all series of Capital Securities, stating that such additional Events of Default are expressly being included solely for the benefit of such series); or

(d) to add to, change or eliminate any of the provisions of this Indenture in respect of one or more series of Capital Securities, provided that any such addition, change or elimination (A) shall neither (i) apply to any Capital Security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (ii) modify the rights of the Holder of any such Capital Security with respect to such provision or (B) shall become effective only when there is no such Capital Security Outstanding; or

(e) to secure the Capital Securities; or

(f) to establish the form or terms of Capital Securities of any series as permitted by Sections 2.01 and 3.01; or

(g) to change any Place of Payment, so long as the Place of Payment as required by Section 3.01 is maintained; or

 

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(h) to make any other provisions with respect to matters or questions arising under this Indenture, provided such action shall not adversely affect the interests of the Holders of Capital Securities of any series in any material respect; or

(i) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Capital Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.11(b); or

(j) to add to or change any of the provisions of this Indenture with respect to any Capital Securities that by their terms may be converted into securities or other property other than Capital Securities of the same series and of like tenor, in order to permit or facilitate the issuance, payment or conversion of such Capital Securities; or

(k) to cure any ambiguity, to correct or supplement any provision herein which may be defective or inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture, provided that such action pursuant to this Article 9 shall not adversely affect the interests of the Holders of Capital Securities of any series in any material respect.

(l) to change or eliminate any provision of this Indenture as permitted by Section 1.07.

Section 9.02 Supplemental Indentures with Consent of Holders. With the consent of the Holders of a majority in principal amount of the Outstanding Capital Securities of all series affected by such supplemental indenture (considered together as one class for this purpose), by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by a Board Resolution or other means, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of Capital Securities of such series under this Indenture; provided, however, that no such supplemental indenture may, without the consent of the Holder of each Outstanding Capital Security affected thereby,

(a) change the Stated Maturity of the principal of, or any instalment of principal of or interest on, any Capital Security, or reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof, or reduce the amount of the principal of a Discount Security or any other Capital Security which would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02, or permit the Company to redeem any Capital Security if, absent such supplemental indenture, the Company would not be permitted to do so, or change any Place of Payment where, or the coin or currency in which, any Capital Security or any premium or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date); or

(b) reduce the percentage in principal amount of the Outstanding Capital Securities of any one or more series (considered separately or together as one class, as applicable), the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture; or

(c) modify any of the provisions of this Section 9.02, Section 5.13 except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Capital Security affected thereby; provided, however, that this clause shall not be deemed to require the consent of any Holder with respect to changes in the references to the “Trustee” and concomitant changes in this Section, or the deletion of this proviso, in accordance with the requirements of Sections 6.11(b) and 9.01(j); or

 

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A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Capital Securities, or which modifies the rights of the Holders of Capital Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Capital Securities of any other series.

It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.

Section 9.03 Execution of Supplemental Indentures. In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel in compliance with Section 1.02 stating that the execution of such supplemental indenture is authorized or permitted by this Indenture and that such supplemental indenture is enforceable subject to customary exceptions. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.

Section 9.04 Effect of Supplemental Indentures. Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Capital Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.

Section 9.05 Conformity with Trust Indenture Act. Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act.

Section 9.06 Reference in Capital Securities to Supplemental Indentures. Capital Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in the form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Capital Securities of any series so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Capital Securities of such series.

ARTICLE 10

COVENANTS

Section 10.01 Payment of Principal, Premium, and Interest. The Company covenants and agrees for the benefit of each series of Capital Securities that it will (subject to Sections 3.07 and any subordination provisions applicable to the Capital Securities of that series pursuant to Section 3.01) duly and punctually pay the principal of (and premium, if any) and interest, if any, on the Capital Securities of that series if and to the extent due and payable in accordance with the terms of the Capital Securities and this Indenture.

 

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Section 10.02 Maintenance of Office or Agency. The Company will maintain in each Place of Payment for any series of Capital Securities an office or agency where Capital Securities of that series may be presented or surrendered for payment, where Capital Securities of that series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Capital Securities of that series and this Indenture may be served; provided, however, that at the option of the Company in the case of registered Capital Securities of such series, payment of any interest thereon may be made by check mailed to the address of the Person entitled herein as such address shall appear in the Security Register, unless such person requests payment by wire transfer pursuant to Section 3.07. With respect to the Capital Securities of any series, such office or agency in each Place of Payment shall be specified as contemplated by Section 3.01, and if not so specified, initially shall be the Corporate Trust Office of the Trustee. Unless otherwise specified pursuant to Section 3.01, the Company will maintain in the Borough of Manhattan, The City of New York, an office or agency where notices and demands to or upon the Company in respect of Capital Securities of any series and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all presentations, surrenders, notices and demands.

The Company may also from time to time designate one or more other offices or agencies (in or outside the Borough of Manhattan, The City of New York) where the Capital Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of any obligation to maintain an office or agency in each Place of Payment (except as otherwise indicated in this Section) for Capital Securities of any series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.

Section 10.03 Money for Payments to Be Held in Trust. If the Company shall at any time act as Paying Agent with respect to the Capital Securities of any series, it will, subject to any interest cancellation provisions applicable to the Capital Securities of such series pursuant to Section 3.01, on or before each date for payment of the principal of (and premium, if any) or interest, if any, on any of the Capital Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto in accordance with the provisions of this Indenture a sum sufficient to pay the principal (and premium, if any) or interest, if any, so becoming payable until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will, subject to any interest cancellation provisions applicable to the Capital Securities of such series pursuant to Section 3.01, promptly notify the Trustee of its failure so to act.

Whenever the Company shall have one or more Paying Agents for any series of Capital Securities, it will, subject to any interest cancellation provisions applicable to the Capital Securities of such series pursuant to Section 3.01, prior to each date for payment of the principal of (and premium, if any) or interest, if any, on any Capital Securities of that series, deposit with a Paying Agent a sum sufficient to pay the principal (and premium, if any) or interest, if any, so becoming payable, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest in accordance with the provisions of this Indenture, and (unless such Paying Agent is the Trustee) the Company will, subject to any interest cancellation provisions applicable to the Capital Securities of such series pursuant to Section 3.01, promptly notify the Trustee of its action or its failure so to act. The Company will cause each Paying Agent for any series of Capital Securities other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will:

 

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(a) comply with the provisions of the Trust Indenture Act applicable to it as a Paying Agent and hold all sums held by it for the payment of the principal of (and premium, if any) or interest, if any, on Capital Securities of that series in trust for the benefit of the Persons entitled thereto in accordance with the provisions of this Indenture until such sums shall be paid to such Persons or otherwise disposed of as herein provided;

(b) give the Trustee timely notice of any default by the Company (or any other obligor upon the Capital Securities of that series) in the making of any payment, when due and payable, or principal of (and premium, if any) or interest, if any, on Capital Securities of that series; and

(c) at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.

The Company may at the time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee such Paying Agent shall be released from all further liability with respect to such money.

Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of (and premium, if any) or interest, if any, on any Capital Security of any series and remaining unclaimed for two (2) years after any such principal (and premium, if any) or interest have become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Capital Security shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published at least once, in Authorized Newspapers, published in the Borough of Manhattan, The City of New York and London, England, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than thirty (30) days from the date of such publication, any unclaimed balance of such money then remaining will be paid to the Company.

Section 10.04 Additional Amounts.

(a) Unless otherwise specified in any Board Resolution establishing the terms of Capital Securities of a series in accordance with Section 3.01, all payments of principal and interest in respect of any series of Capital Securities shall be made free and clear of, and without deduction or withholding for, or on account of, any and all present or taxes, assessments or other charges, fees, deductions or withholdings (“Taxes”) now or hereafter imposed upon or as a result of such payments by The Netherlands, or the government of a jurisdiction in which the Company or a successor to the Company is organized or resident for tax purposes (or any political subdivision or taxing authority thereof or therein) (each a “Taxing Jurisdiction”), unless such deduction or withholding is required by law. If any such Taxes are so levied or imposed, the Company will pay such additional amounts (“Additional Amounts”) to the Holder of any Capital Security as may be necessary in order that every net payment of the principal of and interest on such Capital Security and any other amounts payable on such Capital Security, after withholding for or on account of such Taxes imposed upon or as a result of such payment, will not be less than the amount provided for in such Capital Security to be then due and payable, provided that the Company will not be required to make any payment of Additional Amounts to any such Holder for or on account of: (i) any Taxes that are payable because of the existence of any present or former connection

 

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(other than the mere holding or ownership of, or the collection of principal of, and interest on, the Capital Securities) between such Holder (or between a fiduciary, settler, beneficiary, member or shareholder of such Holder, if such Holder is an estate, a trust, a partnership or a corporation) and the Taxing Jurisdiction including, without limitation, such Holder (or such fiduciary, settler, beneficiary, member or shareholder) being or having been a citizen or resident thereof or being or having been engaged in a trade or business or present therein or having, or having had, a permanent establishment therein, (ii) any Taxes that are imposed or withheld because of the presentation (where presentation is required) by or on behalf of the Holder of any such Capital Security payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later; (iii) any estate, inheritance, gift, sales, transfer or personal property tax or any similar tax, duty, assessment or governmental charge, (iv) any Taxes that are payable other than by deduction or withholding from payments on or in respect of any Capital Security, (v) any Taxes that are imposed or withheld because the Holder or beneficial owner of the Capital Security fails to comply with a timely request from the Company to provide certification, information or other reporting requirements concerning the nationality, residence or identity of the Holder or beneficial owner of such Capital Security, if the Holder or beneficial owner of such Capital Security is legally permitted to provide such certification, information or other reporting and such compliance is required by statute, by treaty or by regulation of or on behalf of the Taxing Jurisdiction or any political subdivision or taxing authority thereof or therein as a precondition to relief or exemption from such tax, assessment or other governmental charge, (v) any Taxes that a Holder or beneficial owner would have been able to avoid (but has not so avoided) by presenting and surrendering the relevant Capital Security to another Paying Agent; (vi) any Taxes 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 other Directive implementing the conclusions of the ECOFIN Council Meeting of 26-27 November 2000 on the taxation of savings income or any law implementing or complying with, or introduced in order to conform to, such Directive or law; or (vii) any combination of items (i) through (vi) above; nor shall Additional Amounts be paid with respect to any payment on a Capital Security to a Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent such payment would be required to be included in the income, for tax purposes, of a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the Holder of the Capital Security. Whenever in this Indenture there is mentioned, in any context, the payment of the principal of (and premium, if any) or any interest, if any, on or in respect of any Capital Security of any series, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Section to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to the provisions of this Section and as if express mention of the payment of Additional Amounts (if applicable) were made in any provisions hereof where such express mention is not made.

(b) Any amounts to be paid by the Company on any series of Capital Securities shall be paid net of any deduction or withholding imposed or required pursuant to Sections 1471 through 1474 of the Code, any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the Code, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code (or any law implementing such an intergovernmental agreement) (a “FATCA Withholding Tax”), and the Company shall not be required to pay Additional Amounts or otherwise indemnify a Holder of the Capital Security on account of any FATCA Withholding Tax deducted or withheld by the Company, any Paying Agent, or any other party.

 

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(c) With respect to any series of Capital Securities, any Paying Agent shall be entitled to make a deduction or withholding from any payment which it makes under the Capital Securities of such series and this Indenture for or on account of (i) any present or future taxes, duties or charges if and to the extent so required by any applicable law and (ii) any FATCA Withholding Tax (together, “Applicable Law”). In either case, the Paying Agent shall make any payment after a deduction or withholding has been made pursuant to Applicable Law and shall report to the relevant authorities the amount so deducted or withheld. However, such deduction or withholding will not apply to payments made under the Capital Securities of such series and this Indenture through the relevant clearing systems. In all cases, the Paying Agent shall have no obligation to gross up any payment made subject to any deduction or withholding pursuant to Applicable Law, except to the extent that it receives payment for such gross up from the Company. In addition, amounts deducted or withheld by the Paying Agent under this Section 10.04(c) will be treated as paid to the Holder of a Capital Security, and the Company will not pay Additional Amounts in respect of such deduction or withholding, except to the extent the provisions in this Section 10.04 explicitly provide otherwise.

Section 10.05 Corporate Existence. Subject to Article 8, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence.

Section 10.06 Statement as to Compliance. The Company will deliver to the Trustee, within one hundred and twenty (120) days after the end of each fiscal year, commencing with the fiscal year ending December 31, 2015, a certificate in compliance with Section 314(a)(4) of the Trust Indenture Act.

ARTICLE 11

REDEMPTION OF CAPITAL SECURITIES

Section 11.01 Applicability of Article. Capital Securities of any series shall be redeemable in accordance with their terms (subject to the applicable provisions of the Capital Regulations or other applicable law) and, except as otherwise specified pursuant to Section 3.01 for Capital Securities of any series, in accordance with this Article.

Section 11.02 Election to Redeem; Notice to Trustee. The election of the Company to redeem any Capital Securities shall be evidenced by a Board Resolution or other means. The Company shall, at least thirty (30) days and no more than sixty (60) days prior to the Redemption Date fixed by the Company, notify the Holders of such Redemption Date, of the principal amount of Capital Securities of such series to be redeemed, and shall notify the Trustee of such election at least five (5) Business Days prior to the date on which the notice of redemption is sent to Holders (unless a shorter notice period shall be satisfactory to the Trustee). In the case of any redemption of Capital Securities of any series prior to the expiration of any restriction on such redemption provided in the terms of such Capital Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officer’s Certificate evidencing compliance with or waiver of such restrictions.

Section 11.03 Selection by Trustee of Capital Securities to be Redeemed. If less than all the Capital Securities of any series are to be redeemed, the particular Capital Securities to be redeemed shall be selected not more than sixty (60) days nor less than thirty (30) days prior to the Redemption Date by the Trustee, from the Outstanding Capital Securities of such series not previously called for redemption, by such method as the Trustee shall deem fair and appropriate, subject to applicable Depositary procedures, and which may provide for the selection for redemption of portions (equal to the minimum authorized denomination for registered Capital Securities of that series or any multiple thereof) of the principal amount of Capital Securities of such series of a denomination larger than the minimum authorized denomination for Capital Securities of that series.

 

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The Trustee shall promptly notify the Company in writing of the Capital Securities selected for redemption and, in the case of any Capital Securities selected for partial redemption, the principal amount thereof to be redeemed.

For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Capital Securities shall relate in the case of any Capital Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such registered Capital Security which has been or is to be redeemed.

Section 11.04 Notice of Redemption. Unless otherwise provided as contemplated by Section 3.01 with respect to any series of Capital Securities, notice of redemption shall be given not less than thirty (30) nor more than sixty (60) days prior to the Redemption Date to each Holder of Capital Securities to be redeemed in the manner and to the extent provided in Section 1.06.

All notices of redemption shall state:

(a) the Redemption Date,

(b) the Redemption Price,

(c) if less than all the Outstanding Capital Securities of any series are to be redeemed, the identification (and, in the case of partial redemption, the principal amount) of the Capital Securities to be redeemed,

(d) that, subject to any conditions contained in the indenture supplemental hereto establishing the terms of the Capital Securities to be redeemed, on the Redemption Date the Redemption Price will become due and payable upon each such Capital Security to be redeemed and, if applicable, that interest thereon will cease to accrue on or after the said date,

(e) the place or places where such Capital Securities are to be surrendered for payment of the Redemption Price, and

(f) the CUSIP, Common Code and/or ISIN number or numbers, if any, with respect to such Capital Securities.

Notice of redemption of Capital Securities to be redeemed at the selection of the Company shall be given by the Company or, at the Company’s Request and upon provision to the Trustee of such notice information, by the Trustee in the name and at the expense of the Company.

Section 11.05 Deposit of Redemption Price. On or prior to any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as Paying Agent, segregate and hold in trust as provided in Section 10.03) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued but unpaid interest, if any, on, all the Capital Securities which are to be redeemed on that date.

Section 11.06 Capital Securities Payable on Redemption Date. Notice of redemption having been given as aforesaid, the Capital Securities so to be redeemed shall, subject to any conditions contained in the indenture supplemental hereto establishing the terms of the Capital Securities of such series, become due and payable at the Redemption Price therein specified on the Redemption Date, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest, if any) such Capital Securities shall cease to accrue interest. Upon surrender of any such

 

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Capital Security for redemption in accordance with said notice, such Capital Security shall be paid by the Company at the Redemption Price, together with accrued but unpaid interest (if any) to the Redemption Date; provided, however, that with respect to any Capital Securities in registered form, unless otherwise specified as contemplated by Section 3.01, a payment of interest which is payable on an Interest Payment Date which is on or before the Redemption Date, shall be payable to the Holders of such Capital Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Regular Record Date according to the terms of the Capital Securities and the provisions of Section 3.07.

If any Capital Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal and any premium shall, until paid, bear interest from and after the Redemption Date in accordance with the terms of such Capital Security and the provisions of Section 3.07.

Section 11.07 Capital Securities Redeemed in Part. Any Capital Security which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, only in the case of Capital Securities in registered form, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Capital Security without service charge payable by the Holder, a new Capital Security or Capital Securities of the same series of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Capital Security so surrendered.

ARTICLE 12

SUBORDINATION OF CAPITAL SECURITIES

Section 12.01 Status. One or more indentures supplemental to this Indenture shall provide that the payment of the principal of (and premium, if any) and interest, if any, on a series of Capital Securities be subordinated to the extent and in the manner described in such indenture supplemental hereto, to the claims of the holders of certain other present and future obligations of the Company. Each Capital Security will constitute our direct, unsecured and subordinated obligations, ranking equally without any preference among themselves. The rights and claims of the Holders of any series of Capital Securities will be subordinated as described in the applicable indenture supplemental hereto with respect to such series.

This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.

 

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IN WITNESS WHEREOF, the Company and the Trustee have caused this Indenture to be duly executed, all as of the day and year first above written.

 

ING GROEP N.V.
By:

/s/ J.D. Wolvius

Name: J.D. Wolvius
Title: Head of Capital Management
By:

/s/ P.G. van der Linde

Name: P.G. van der Linde
Title: Senior Legal Counsel
THE BANK OF NEW YORK MELLON, LONDON BRANCH, AS TRUSTEE
By:

/s/ Paul Cattermole

Name: Paul Cattermole
Title: Vice President

Signature page for the Capital Securities Indenture



Exhibit 4.2

 

 

 

ING GROEP N.V.,

Issuer

and

THE BANK OF NEW YORK MELLON, LONDON BRANCH,

Trustee

 

 

FIRST SUPPLEMENTAL INDENTURE

Dated as of April 16, 2015

 

 

To the Capital Securities Indenture, dated as of April 16, 2015,

Between ING Groep N.V.

and

The Bank of New York Mellon, London Branch, Trustee

$1,000,000,000 6.000% Perpetual Additional Tier 1 Contingent Convertible Capital Securities

 

 

 


ING GROEP N.V.

Reconciliation and tie between Trust Indenture Act of 1939, as amended by the Trust Indenture Reform Act of 1990, and Indenture, as supplemented by this First Supplemental Indenture, each dated as of April 16, 2015.

 

Trust Indenture Act Section

  

Indenture Section

§310

 

(a)(1)

   6.09
 

(a)(2)

   6.09
 

(a)(3)

   Not Applicable
 

(a)(4)

   Not Applicable
 

(b)

  

6.08

6.10

§311

 

(a)

   6.13
 

(b)

   6.13

§312

 

(a)

  

7.01

7.02(a)

 

(b)

   7.02(b)
 

(c)

   7.02(c)

§313

 

(a)

   7.03(a)
 

(b)

   7.03(a)
 

(c)

   1.06,7.03(a)
 

(d)

   7.03(b)

§314

 

(a)

   7.04, 10.06
 

(b)

   Not Applicable
 

(c)(1)

   1.02
 

(c)(2)

   1.02
 

(c)(3)

   Not Applicable
 

(d)

   Not Applicable
 

(e)

   1.02
 

(f)

   Not Applicable

§315

 

(a)

   6.01, 6.03
 

(b)

   6.02
 

(c)

   5.04, 6.01
 

(d)(1)

   6.01, 6.03
 

(d)(2)

   6.01, 6.03
 

(e)

   5.14

§316

 

(a)(1)(A)

   5.02, 5.12
 

(a)(1)(B)

   5.13
 

(a)(2)

   Not Applicable
 

(a)(last sentence)

   1.01
 

(b)

   5.08

§317

 

(a)(1)

   6.02 of First Supplemental Indenture
 

(a)(2)

   5.04
 

(b)

   10.03

§318

 

(a)

   1.07

NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a part of this First Supplemental Indenture or the Base Indenture. Section references are to Base Indenture except as indicated.


TABLE OF CONTENTS

 

          Page  

ARTICLE I

  

DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

  

Section 1.01   

Definitions

     1   
Section 1.02   

Effect of Headings

     9   
Section 1.03   

Separability Clause

     9   
Section 1.04   

Benefits of Instrument

     9   
Section 1.05   

Relation to Base Indenture

     9   
Section 1.06   

Construction and Interpretation

     9   

ARTICLE II

  

FORM AND TERMS OF THE SECURITIES; INTEREST AND PAYMENTS

  

Section 2.01   

Establishment of Securities; Form and Certain Terms of Securities

     10   
Section 2.02   

Interest

     11   
Section 2.03   

Interest Payments Discretionary

     11   
Section 2.04   

Restriction on Interest Payments

     11   
Section 2.05   

Effect of Interest Cancellation

     12   
Section 2.06   

Notice of Interest Cancellation

     12   

ARTICLE III

  

REDEMPTION AND REPURCHASE

  

Section 3.01   

Redemption

     12   
Section 3.02   

Notice of Redemption; Automatic Revocation

     13   
Section 3.03   

Conditions to Redemption and Repurchase

     13   

ARTICLE IV

  

CONVERSION OF THE SECURITIES

  

Section 4.01   

Conversion upon Trigger Event

     14   
Section 4.02   

Conversion Shares

     16   
Section 4.03   

Settlement Procedure

     17   
Section 4.04   

Failure to Deliver a Conversion Shares Settlement Notice

     18   
Section 4.05   

Adjustment of Floor Price

     18   
Section 4.06   

Covenants Relating to Conversion Shares

     19   

ARTICLE V

  

DUTCH BAIL-IN POWER

  

Section 5.01   

Agreement with Respect to Exercise of Dutch Bail-In Power

     19   

 

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ARTICLE VI

  

DEFAULTS AND REMEDIES

  

Section 6.01

Liquidation Event

  20   
Section 6.02

Failure to Pay Principal Amount

  20   
Section 6.03

Performance Obligations

  21   
Section 6.04

No Other Remedies and Other Terms

  21   
Section 6.05

Waiver of Past Defaults

  21   

ARTICLE VII

  

SUBORDINATION AND SET-OFF

  

Section 7.01

Subordination

  22   
Section 7.02

No Set-Off

  22   

ARTICLE VIII

  

ADDITIONAL TRUSTEE PROTECTIONS

  

Section 8.01

Conversion

  22   
Section 8.02

Indemnification by the Company

  23   

ARTICLE IX

  

ADDITIONAL ACKNOWLEDGEMENTS AND AGREEMENTS

  

OF HOLDERS AND BENEFICIAL OWNERS

  

Section 9.01

Dutch Bail-In Power

  23   
Section 9.02

Conversion Upon a Trigger Event

  24   
Section 9.03

Interest Cancellation

  24   
Section 9.04

Waiver of Claims

  24   
Section 9.05

Successors and Assigns

  25   

ARTICLE X

  

MISCELLANEOUS PROVISIONS

  

Section 10.01

Effectiveness

  25   
Section 10.02

Modification

  25   
Section 10.03

Original Issue

  25   
Section 10.04

Ratification and Integral Part

  25   
Section 10.05

Priority

  25   
Section 10.06

Successors and Assigns

  26   
Section 10.07

Counterparts

  26   
Section 10.08

Governing Law

  26   

 

EXHIBIT A Form of Security A-1
EXHIBIT B Form of Conversion Notice B-1
EXHIBIT C Form of Conversion Shares Settlement Notice C-1
ANNEX I Anti-Dilution Provisions I-1

 

- iii -


FIRST SUPPLEMENTAL INDENTURE, dated as of April 16, 2015 (this “First Supplemental Indenture”) between ING GROEP N.V., a holding company duly organized and existing under the laws of The Netherlands (herein called the “Company”), having its corporate seat in Amsterdam, The Netherlands, and its principal office at Bijlmerplein 888, 1102 MG Amsterdam, P.O. Box 1800, 100 BV Amsterdam, The Netherlands, and THE BANK OF NEW YORK MELLON, LONDON BRANCH, a New York banking corporation, as Trustee (herein called the “Trustee”), having its Corporate Trust Office at One Canada Square, London E14 5AL, United Kingdom, to the CAPITAL SECURITIES INDENTURE, dated as of April 16, 2015, between the Company and the Trustee, as amended from time to time (the “Base Indenture” and, together with this First Supplemental Indenture, the “Indenture”).

RECITALS OF THE COMPANY

The Company and the Trustee are parties to the Base Indenture, which provides for the issuance by the Company from time to time of Capital Securities in one or more series.

Section 9.01(f) of the Base Indenture permits supplements thereto without the consent of Holders of Capital Securities to establish the form or terms of Capital Securities of any series as permitted by Sections 2.01 and 3.01 of the Base Indenture.

As contemplated by Section 3.01 of the Base Indenture, the Company intends to issue a new series of Capital Securities to be known as the Company’s “$1,000,000,000 6.000% Perpetual Additional Tier 1 Contingent Convertible Capital Securities” (the “Securities”) under the Indenture.

The Company has taken all necessary corporate action to authorize the execution and delivery of this First Supplemental Indenture.

NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:

For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities as follows:

ARTICLE I

DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

Section 1.01 Definitions. Except as otherwise expressly provided or unless the context otherwise requires, all terms used in this First Supplemental Indenture that are defined in the Base Indenture shall have the meanings ascribed to them in the Base Indenture. Certain terms used principally in Annex I (Anti-Dilution Provisions) are defined therein. The following terms used in this First Supplemental Indenture have the following respective meanings with respect to the Securities only:

Additional Tier 1 Capital” at any time has the meaning given to such term (or an equivalent term) under the Capital Regulations at such time.

ADS” means an American Depositary Share representing one Ordinary Share (whether or not in the form of a Bearer Depositary Receipt).

ADS Depositary” means JPMorgan Chase Bank, as the depositary under the Company’s ADS Depositary Facility, or any successor thereto.


ADS Depositary Facility” means the facility under which the American Depositary Receipts (“ADRs”) representing ADSs may be issued pursuant to the Amended and Restated Deposit Agreement, dated as of February 8, 2013, among the Company, Stichting ING Aandelen, as trustee, the ADS Depositary and the holders from time to time of the ADRs, or any successor or replacement facility.

Alternative Delivery Arrangements” has the meaning set forth in Section 4.01(a).

Base Indenture” has the meaning set forth in the first paragraph of this First Supplemental Indenture.

Bearer Depositary Receipt” means a bearer depositary receipt issued by the Trust representing one Ordinary Share; provided that if at the time of Conversion one Bearer Depositary Receipt represents a greater or lesser number of Ordinary Shares, each reference to a Bearer Depositary Receipt shall be deemed to be a reference to such number of Bearer Depositary Receipts as shall represent one Ordinary Share.

Beneficial Owner” means (i) with respect to any Global Security, a beneficial owner of an interest therein prior to the occurrence of the Final Cancellation Date and (ii) with respect to any definitive Security, the Holder in whose name the Security is registered in the Security Register.

BRRD” means Directive 2014/59/EU of the European Parliament and of the Council establishing a framework for the recovery and resolution of credit institutions and investment firms.

Business Day” means any day other than a Saturday or Sunday or a day on which banking institutions are authorized or obligated by law or executive order to close in London, Amsterdam or The City of New York.

Cancellation Date” means (i) with respect to any Security for which a Conversion Shares Settlement Notice is received by the Conversion Shares Depository on or before the Notice Cut-Off Date, the applicable Settlement Date and (ii) with respect to any Security for which a Conversion Shares Settlement Notice is not received by the Conversion Shares Depository on or before the Notice Cut-Off Date, the Final Cancellation Date.

Calculation Agent” means the Person (including the Interest Calculation Agent (or any successor thereto) but excluding the Conversion Calculation Agent (or any successor thereto)), if any, authorized by the Company to calculate the interest rate or other amounts from time to time in relation to any series of Capital Securities.

Company” has the meaning set forth in the first paragraph of this First Supplemental Indenture, and includes any successor entity.

Conversion Calculation Agent” has the meaning set forth in Section 4.05(b).

Conversion Date” means the date specified in the Conversion Notice on which the Conversion takes place.

 

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Conversion” means the irrevocable and automatic release of all of the Company’s obligations to the holders under the Securities in consideration of the Company’s issuance of the Conversion Shares at the Conversion Price to the Conversion Shares Depository (on behalf of the Holders and Beneficial Owners of the Securities) or to the relevant recipient of such Conversion Shares pursuant to any Alternative Delivery Arrangements.

Conversion Notice” means a written notice substantially in the form attached hereto as Exhibit B.

Conversion Price” means (i) if the Ordinary Shares are then admitted to trading on a Relevant Stock Exchange, the highest of (a) the Current Market Price per Ordinary Share translated into U.S. dollars at the Prevailing Rate, (b) the Floor Price and (c) the nominal value of an Ordinary Share translated into U.S. dollars at the Prevailing Rate, and (ii) if the Ordinary Shares are not then admitted to trading on a Relevant Stock Exchange, the higher of (x) the Floor Price and (y) the nominal value of an Ordinary Share translated into U.S. dollars at the Prevailing Rate. The Current Market Price, Floor Price and Prevailing Rate shall each be determined on the date on which the Conversion Notice is given.

Conversion Shares” means Ordinary Shares to be issued to the Conversion Shares Depository (or to the relevant recipient in accordance with the terms of the Securities) following a Conversion; provided that if at the time of Conversion the Ordinary Shares are represented by Bearer Depositary Receipts and only Bearer Depositary Receipts are admitted to listing on the Relevant Stock Exchange, “Conversion Shares” shall mean Bearer Depositary Receipts.

Conversion Shares Depository” has the meaning set forth in Section 4.01(a).

Conversion Shares Settlement Notice” means a written notice substantially in the form attached hereto as Exhibit C.

CRD IV” means the legislative package consisting of the CRD IV Directive and the CRD IV Regulation.

Current Market Price” has the meaning set forth in Annex I (Anti-Dilution Provisions).

Default” means (i) an Event of Default, (ii) a Payment Default or (iii) the breach by the Company of a Performance Obligation.

Distributable Items” shall have the meaning assigned to such term in the CRD IV Regulation, as interpreted and applied in accordance with the Capital Regulations then applicable to the Company.

Dutch Bail-In Power” means any statutory write-down and/or conversion power existing from time to time under any laws, regulations, rules or requirements relating to the resolution of banks, banking group companies, credit institutions and/or investment firms incorporated in The Netherlands in effect and applicable in The Netherlands to the Company or other members of the Group, including but not limited to any such laws, regulations, rules or requirements that are implemented, adopted or enacted within the context of a European Union directive or regulation of the European Parliament and of the Council establishing a framework for the recovery and resolution of credit institutions and investment firms (including but not limited to the BRRD and the SRM Regulation) and/or within the context of a Dutch resolution regime under the Dutch Intervention Act and any amendments thereto (which includes any amendments to be made by the forthcoming BRRD (Implementation) Act) or otherwise, pursuant to which obligations of a bank, banking group company, credit institution or investment firm or any of its affiliates can be reduced, cancelled and/or converted into shares or other securities or obligations of the obligor or any other person or may be expropriated.

 

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Euronext Amsterdam” means Euronext in Amsterdam, a regulated market of Euronext Amsterdam N.V.

Existing Capital Instruments” means the 7.05% ING Perpetual Debt Securities issued on July 18, 2002, 7.20% ING Perpetual Debt Securities issued on December 12, 2002, ING Perpetual Securities II issued on June 19, 2003, 6.20% ING Perpetual Debt Securities issued on October 28, 2003, ING Perpetual Securities III issued on June 16, 2004, 4.176% ING Perpetual Securities issued on June 8, 2005, 6.125% ING Perpetual Debt Securities issued on September 26, 2005, 5.775% Fixed/Floating ING Perpetual Debt Securities issued on December 8, 2005, 5.140% ING Perpetual Securities issued March 17, 2006, 6.375% ING Perpetual Hybrid Capital Securities issued on June 13, 2007, 7.375% ING Perpetual Hybrid Capital Securities issued on October 4, 2007 and the Company’s guarantee of the 8.439% Non-cumulative Guaranteed Trust Preferred Securities issued by ING Capital Funding Trust III on December 15, 2000.

Final Cancellation Date” means the date, as specified in the Conversion Notice, on which the Securities in relation to which no Conversion Shares Settlement Notice has been received by the Conversion Shares Depository on or before the Notice Cut-Off Date shall be cancelled, which date may be up to fifteen (15) Business Days following the Notice Cut-Off Date.

First Call Date” means April 16, 2020.

Floor Price” means $9.00 per Conversion Share (subject to certain anti-dilution adjustments pursuant to Section 4.05).

Further Capital Securities” means any securities issued after the Issue Date which are contingently convertible into Ordinary Shares pursuant to their terms in the event that the Group CET1 Ratio is less than a specified percentage.

Group CET1 Capital” means, at any time and expressed in euro, the Common Equity Tier 1 capital (or an equivalent or successor term) at such time, of the Company calculated in accordance with Article 11(2) of the CRD IV Regulation on the basis of the consolidated situation of the Company as the parent financial holding company of the Bank and taking into account any transitional arrangements under the Capital Regulations.

Group CET1 Ratio” means, as of any date, the ratio of the aggregate amount of Group CET1 Capital to the Group Total Risk Exposure Amount as of the same date, expressed as a percentage.

Group Total Risk Exposure Amount” means, at any time and expressed in euro, the total risk exposure amount (or an equivalent or successor term) at such time, of the Company calculated in accordance with Article 11(2) of the CRD IV Regulation on the basis of the consolidated situation of the Company as the parent financial holding company for the Bank, in accordance with the Capital Regulations and taking into account any transitional arrangements under the Capital Regulations.

Indenture” has the meaning set forth in the first paragraph of this First Supplemental Indenture.

 

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Independent Financial Adviser” means an independent financial institution of international repute or independent financial adviser with appropriate expertise (which may include the initial Conversion Calculation Agent) appointed by the Company at its own expense.

Interest Calculation Agent” means The Bank of New York Mellon, London Branch, or its successor appointed by the Company pursuant to the Interest Calculation Agent Agreement between the Company and The Bank of New York Mellon, London Branch, dated as of the date hereof.

Interest Payment Date” has the meaning set forth in Section 2.02.

Interest Period” means the period from and including an Interest Payment Date (or the Issue Date, in the case of the initial Interest Period) to but excluding the next succeeding Interest Payment Date.

Issue Date” has the meaning set forth in Section 2.01(b).

Liquidation Event” means a liquidation (upon dissolution (ontbinding) or otherwise), moratorium of payments (surseance van betaling) or bankruptcy (faillissement) of the Company; provided that the exercise of the Dutch Bail-In Power by the Relevant Resolution Authority with respect to the Securities shall not constitute a Liquidation Event.

Maximum Distributable Amount” means any applicable maximum distributable amount relating to the Company required to be calculated in accordance with Article 141 of the CRD IV Directive or, as the case may be, any provision of applicable law, including the Dutch Financial Markets Supervision Act (Wet op het financieel toezicht), transposing or implementing the CRD IV Directive, as amended or replaced).

Mid-Market Swap Rate” means the mid-market U.S. dollar swap rate LIBOR basis having a five-year maturity appearing on Bloomberg page “ISDA01” (or such other page as may replace such page on Bloomberg, or such other page as may be nominated by the person providing or sponsoring the information appearing on such page for purposes of displaying comparable rates) at 11:00 a.m. (New York City time) on the relevant Reset Determination Date, as determined by the Interest Calculation Agent. If such swap rate does not appear on such page (or such other page or service), the Mid-Market Swap Rate shall instead be determined by the Interest Calculation Agent on the basis of (i) quotations provided by the principal office of each of four major banks in the U.S. dollar swap rate market (which banks shall be selected by the Interest Calculation Agent in consultation with the Company no less than 20 calendar days prior to the relevant Reset Determination Date) (the “Reference Banks”) of the rates at which swaps in U.S. dollars are offered by it at approximately 11:00 a.m. (New York City time) (or thereafter on such date, with the Interest Calculation Agent acting on a best efforts basis) on the relevant Reset Determination Date to participants in the U.S. dollar swap rate market for a five-year period and (ii) the arithmetic mean expressed as a percentage and rounded, if necessary, to the nearest 0.001% (0.0005% being rounded upwards) of such quotations. If the relevant Mid-Market Swap Rate is still not determined on the relevant Reset Determination Date in accordance with the foregoing procedures, the relevant Mid-Market Swap Rate shall be the mid-market U.S. dollar swap rate LIBOR basis having a five-year maturity that appeared on the most recent Bloomberg page “ISDA01” (or such other page as may replace such page on Bloomberg, or such other page as may be nominated by the person providing or sponsoring the information appearing on such page for purposes of displaying comparable rates) that was last available prior to 11:00 a.m. (New York City time) on each Reset Determination Date, as determined by the Interest Calculation Agent.

 

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Notice Cut-Off Date” means the date specified as such in the Conversion Notice, which date shall be at least twenty (20) Business Days following the Suspension Date.

Ordinary Shares” means fully paid Ordinary Shares in the capital of the Company.

Parity Instruments” means securities, instruments or obligations of the Company which upon a Liquidation Event occurring prior to the Trigger Event rank, or are expressed to rank, pari passu with the Securities, including the Existing Capital Instruments.

Payment Default” means the failure to pay the principal amount of the Securities within 14 days of the date fixed for redemption of the Securities, provided that the notice of such redemption shall not have been revoked pursuant to Section 3.02 and the conditions to redemption set forth in Section 3.03 shall have been satisfied on the date fixed for redemption.

Performance Obligation” means any term, obligation or condition binding upon the Company under the Securities or under the Indenture with respect to the Securities other than any obligation to pay principal of, or interest on, any Securities or any obligation to pay Additional Amounts in respect thereof (whether upon redemption, the occurrence of a Liquidation Event or otherwise).

Prevailing Rate” means, in respect of any pair of currencies on any calendar day, the spot rate of exchange between the relevant currencies prevailing as at or about 12:00 pm, London time, on that date as appearing on or derived from the Relevant Page or, if such a rate cannot be determined at such time, the rate prevailing as at or about 12:00 pm, London time, on the immediately preceding day on which such rate can be so determined or, if such rate cannot be so determined by reference to the Relevant Page, the rate determined in such other manner as an Independent Financial Adviser shall in good faith prescribe.

Regular Record Date” means the Business Day immediately preceding each Interest Payment Date (or, if the Securities are issued in the form of definitive Securities, the fifteenth (15th) Business Day preceding each Interest Payment Date).

Regulatory Event” means that, as a result of a change in the regulatory classification of the Securities on or after the Issue Date, the Securities have been or will be excluded in whole from the own funds of the Company, calculated in accordance with Article 11(2) of the CRD IV Regulation on the basis of the consolidated situation of the Company as the parent financial holding company for the Bank, or reclassified in whole as a lower quality form of own funds (that is, no longer Additional Tier 1 Capital).

Relevant Page” means the relevant page on Bloomberg or such other information service provider that displays the relevant information, as determined by the Conversion Calculation Agent.

Relevant Regulator” means the European Central Bank or any other body or authority having primary supervisory authority with respect to the Company, the Bank or the Group.

Relevant Resolution Authority” means any authority with the ability to exercise a Dutch Bail-In Power.

 

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Relevant Stock Exchange” means Euronext Amsterdam or, if at the relevant time the Ordinary Shares are not at that time listed and admitted to trading on the Euronext Amsterdam, the principal stock exchange or securities market on which the Ordinary Shares are then listed, admitted to trading or quoted or accepted for dealing.

Reset Date” means the First Call Date and each five-year anniversary thereafter.

Reset Determination Date” means, with respect to any Reset Date, the second (2nd) Business Day immediately preceding such Reset Date.

Securities” has the meaning set forth in the Recitals.

Senior Instruments” means securities, instruments or obligations of the Company: (i) the holders of which are unsubordinated creditors of the Company (“Unsubordinated Instruments”), or (ii) which are, or are expressed to be, subordinated (whether only in the event of the liquidation of the Company or otherwise) to Unsubordinated Instruments but not further or otherwise, or (iii) which in a liquidation, moratorium or bankruptcy of the Company occurring prior to the Trigger Event are, or are expressed to be, further or otherwise subordinated, other than those which in such event rank, or are expressed to rank, pari passu with or junior to the Securities. For the avoidance of doubt, “Senior Instruments” includes securities, instruments or obligations of the Company which are Tier 2 instruments within the meaning of Article 52(1)(d) of the CRD IV Regulation.

Settlement Date” means (i) with respect to any Security in relation to which a Conversion Shares Settlement Notice is received by the Conversion Shares Depository (or the relevant recipient, as applicable) on or before the Notice Cut-Off Date, the date which is two (2) Business Days after (a) the date on which such Conversion Shares Settlement Notice has been received by the Conversion Shares Depository or (b) (if later) the date on which the Conversion Shares are delivered to the Conversion Shares Depository, and (ii) with respect to any Security in relation to which a Conversion Shares Settlement Notice is not received by the Conversion Shares Depository on or before the Notice Cut-Off Date, the date on which the Conversion Shares Depository delivers the relevant Conversion Shares.

Shareholders” means the holders of Ordinary Shares.

SRM Regulation” means the provisions of Regulation (EU) No 806/2014 of the European Parliament and of the Council.

Suspension Date” means the date specified in the Conversion Notice as the date on which DTC is expected to suspend all clearance and settlement of transactions in the Securities in accordance with its rules and procedures.

Tax Event” shall mean the Company determining that, as a result of a Tax Law Change, the Company (a) will or would be required on the next Interest Payment Date (or if the next Interest Payment Date is scheduled to occur within thirty (30) days, then on the Interest Payment Date immediately following the next Interest Payment Date) to pay holders Additional Amounts; or (b) would not be entitled to claim a deduction in respect of any interest payments made on the next Interest Payment Date (or if the next Interest Payment Date is scheduled to occur within thirty (30) days, then on the Interest Payment Date immediately following the next Interest Payment Date) in computing the Company’s taxation liabilities in The Netherlands, or the amount of the deduction would be materially reduced; provided in each of the case of (a) and (b) that the consequences of such event cannot be avoided by the Company taking reasonable measures available to it.

 

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Tax Law Change” means a change in or proposed change (Voorstel van Wet) in, or amendment or proposed amendment (Voorstel van Wet) to, the laws or regulations of The Netherlands or any political subdivision or authority therein or thereof having the power to tax, including any treaty to which The Netherlands is a party, or any change in the application of official or generally published interpretation of such laws or regulations, including a decision of any court or tribunal, or any interpretation or pronouncement by any relevant tax authority, which change or amendment (including, for the avoidance of doubt, a decision of any court or tribunal) becomes, or would become, effective on or after the Issue Date or, in the case of a proposed change (Voorstel van Wet), is expected to be enacted or otherwise become effective on or after the Issue Date; provided that for the avoidance of doubt, a Tax Law Change does not include any amendment, clarification or change (including any announced prospective change) to article 29a of the Dutch Corporate Income Tax Act 1969 (artikel 29a Wet op de vennootschapsbelasting 1969) as a result of the exchange of views (gedachtewisseling) as referred to in the final report of the permanent commission for finance of the First Chamber of Parliament (eindverslag van de vaste commissie van financiën van de Eerste Kamer der Staten-Generaal) relating to Article IV of the Dutch Tax Compilation Act 2014 (Fiscale verzamelwet 2014).

Tradable Amount” has the meaning set forth in Section 2.01(j).

Trigger Event” shall occur at any time the Company has determined that the Group CET1 Ratio is less than 7.00%.

Trigger Event Officers’ Certificate” has the meaning set forth in Section 4.01(a)(ii).

Trust” means Stichting ING Aandelen (ING Trust Office).

Trustee” has the meaning set forth in the first paragraph of this First Supplemental Indenture.

 

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Section 1.02 Effect of Headings. The Article and Section headings herein are for convenience only and shall not affect the construction hereof.

Section 1.03 Separability Clause. In case any provision in this First Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

Section 1.04 Benefits of Instrument. Nothing in this First Supplemental Indenture, express or implied, shall give to any person, other than the parties hereto and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under the Indenture.

Section 1.05 Relation to Base Indenture. This First Supplemental Indenture constitutes an integral part of the Base Indenture. Notwithstanding any other provision of this First Supplemental Indenture, all provisions of this First Supplemental Indenture are expressly and solely for the benefit of the Holders and Beneficial Owners of the Securities and any such provisions shall not be deemed to apply to any other Capital Securities issued under the Base Indenture and shall not be deemed to amend, modify or supplement the Base Indenture for any purpose other than with respect to the Securities.

Section 1.06 Construction and Interpretation. Unless the express otherwise requires:

(a) the words “hereof”, “herein” and “hereunder” and words of similar import, when used in this First Supplemental Indenture, refer to this First Supplemental Indenture as a whole and not to any particular provision of this First Supplemental Indenture;

(b) the terms defined in the singular have a comparable meaning when used in the plural, and vice versa;

(c) references herein to a specific Section, Article or Exhibit refer to Sections or Articles of, or an Exhibit to, this First Supplemental Indenture;

(d) wherever the words “include”, “includes” or “including” are used in this First Supplemental Indenture, they shall be deemed to be followed by the words “without limitation;”

(e) references to a Person are also to its successors and permitted assigns;

(f) the use of “or” is not intended to be exclusive unless expressly indicated otherwise;

(g) references to any act or statute or any provision of any act or statute shall be deemed also to refer to any statutory modification or re-enactment thereof or any statutory instrument, order or regulation made thereunder or under such modification or re-enactment; and

(h) references to any issue or offer or grant to Shareholders “as a class” or “by way of rights” shall be taken to be references to an issue or offer or grant to all or substantially all Shareholders, as the case may be, other than Shareholders, as the case may be, to whom, by reason of the laws of any territory or requirements of any recognized regulatory body or any other stock exchange or securities market in any territory or in connection with fractional entitlements, it is determined not to make such issue or offer or grant.

 

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ARTICLE II

FORM AND TERMS OF THE SECURITIES; INTEREST AND PAYMENTS

Section 2.01 Establishment of Securities; Form and Certain Terms of Securities.

(a) There is hereby established a new series of Capital Securities under the Base Indenture entitled the “$1,000,000,000 6.000% Perpetual Additional Tier 1 Contingent Convertible Capital Securities.” The Securities shall be executed and delivered in substantially the form attached hereto as Exhibit A. The Securities shall be initially issued in the form of one or more Global Securities. The Company hereby designates DTC as the Depositary for the Securities.

(b) The Company shall issue the Securities in an aggregate principal amount of $1,000,000,000 on April 16, 2015 (the “Issue Date”). The Company may issue additional Securities from time to time after the Issue Date in the manner and to the extent permitted by Section 3.01 of the Base Indenture.

(c) The Securities shall be perpetual and redeemable by the Company as provided in Article III. The Securities shall not have a sinking fund and are not redeemable at the option of the Holders.

(d) Interest shall be payable on the Securities as provided in Sections 2.02 through 2.06 and Additional Amounts shall be payable in respect of the Securities in accordance with Section 10.04 of the Base Indenture.

(e) The Company hereby appoints the Trustee, acting through its office at One Canada Square, London E14 5AL, to act as Paying Agent for the Securities.

(f) The Securities shall be automatically convertible as provided in Article IV. The Securities are not convertible at the option of the Holders.

(g) The Securities shall be subject to the Dutch Bail-In Power as provided in Article V.

(h) The Securities constitute the direct unsecured obligations of the Company ranking pari passu without any preference among themselves and shall rank subordinate to Senior Instruments as provided in Article VII.

(i) The events of default and remedies with respect to the Securities shall be limited as provided in Article VI.

(j) The Securities shall be issued in denominations of $200,000 in principal amount and integral multiples of $1,000 in excess thereof. The denomination of each Security (or any interest therein) shall be its “Tradable Amount.” Prior to a Conversion, the Tradable Amount of any Security (or any interest therein) shall equal its principal amount. Following a Conversion, the principal amount of each Security shall equal zero, but its Tradable Amount shall remain unchanged as a result of the Conversion.

 

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Section 2.02 Interest. The interest rate on the Securities shall be (i) from and including the Issue Date to but excluding the First Call Date 6.000% per annum and (ii) from and including each Reset Date to but excluding the following Reset Date, the sum of the applicable Mid-Market Swap Rate on the Reset Determination Date and 4.445%. Subject to Sections 2.03 and 2.04, interest on the principal amount of each Security shall be payable semiannually in arrear on April 16 and October 16 of each year (each, an “Interest Payment Date”), commencing on October 16, 2015, and shall be computed on the basis of a year of 360 days consisting of twelve (12) months of thirty (30) days each and, in the case of an incomplete month, the actual number of days elapsed. The first date on which interest may be paid will be October 16, 2015 for the period commencing on (and including) April 16, 2015, and ending on (but excluding) October 16, 2015.

Section 2.03 Interest Payments Discretionary. Subject to Section 2.04, interest on the Securities shall be due and payable at the sole and absolute discretion of the Company. The Company shall have sole and absolute discretion at all times and for any reason to cancel (in whole or in part) any interest payment that would otherwise be payable in respect of the Securities on any Interest Payment Date or Redemption Date. If the Company does not make an interest payment on any Interest Payment Date or Redemption Date in whole or in part, such interest payment (or the portion thereof not paid) shall be deemed cancelled and shall not be due and payable whether or not the Company has provided notice of cancellation of such interest payment as set forth in Section 2.06. An interest payment otherwise payable on an Interest Payment Date or Redemption Date that is not a Business Day will not be deemed cancelled if it is paid on the following Business Day.

Section 2.04 Restriction on Interest Payments.

(a) Without limiting the Company’s right to cancel any interest payment pursuant to Section 2.03 and subject to the extent permitted in Section 2.04(b) in respect of partial interest payments in respect of the Securities, the Company shall not make an interest payment in respect of the Securities on any Interest Payment Date or Redemption Date (or the following Business Day, if such Interest Payment Date or Redemption Date, as the case may be, is not a Business Day) in whole or in part, if and to the extent that:

 

  (i) the amount of such interest payment otherwise due, together with any interest payments or distributions which have been paid or made or which are required to be paid or made during the then current financial year on other own funds items (excluding any such interest payments or distributions which (i) are not required to be made out of Distributable Items or (ii) have already been provided for, by way of deduction, in the calculation of Distributable Items), in the aggregate exceed the amount of Distributable Items of the Company as at such Interest Payment Date or Redemption Date; or

 

  (ii) the payment of such interest, when aggregated together with other distributions of the kind referred to in Article 141(2) of the CRD IV Directive (or any provision of applicable law transposing or implementing Article 141(2) of the CRD IV Directive, as amended or replaced (or any provision of applicable law, including the Dutch Financial Markets Supervision Act (Wet op het financieel toezicht), transposing or implementing Article 141(2) of the CRD IV Directive, as amended or replaced)), would cause the Maximum Distributable Amount, if any, then applicable to the Company to be exceeded.

(b) The Company may, however, in its sole discretion, elect to make a partial interest payment in respect of the Securities to the extent that such partial interest payment may be made without breaching the restriction set forth in Section 2.04(a).

 

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Section 2.05 Effect of Interest Cancellation. Interest on the Securities shall only be due and payable on an Interest Payment Date to the extent it is not cancelled or deemed cancelled pursuant to Section 2.03 or 2.04. Any interest cancelled or deemed cancelled (in each case, in whole or in part) pursuant to Sections 2.03 and 2.04 shall not be due and shall not accumulate or be payable at any time thereafter (including upon redemption of the Securities), and Holders and Beneficial Owners of the Securities shall have no rights thereto (whether upon a Liquidation Event or otherwise) or to receive any additional interest or compensation as a result of such cancellation or deemed cancellation of interest in respect of the Securities.

Section 2.06 Notice of Interest Cancellation. Notwithstanding anything to the contrary in the Indenture (including Section 1.06 of the Base Indenture), if practicable, the Company shall provide notice of any cancellation of interest (in each case, in whole or in part) to the Trustee and the Holders of the Securities at least five (5) Business Days prior to the relevant Interest Payment Date or Redemption Date and shall provide notice of any deemed cancellation of interest to the Trustee and the Holders of the Securities as promptly as practicable following the relevant Interest Payment Date or Redemption Date. Failure to provide such notice shall have no impact on the effectiveness of, or otherwise invalidate, any such cancellation or deemed cancellation of interest, or give the Holders and Beneficial Owners of the Securities any rights as a result of such failure.

Section 2.07 Determination of Interest Calculation Agent. All determinations and calculations made by the Interest Calculation Agent shall be conclusive and binding on the Holders of the Securities, the Company and the Trustee, absent manifest error.

ARTICLE III

REDEMPTION AND PURCHASE

Section 3.01 Redemption.

(a) Subject to the limitations specified in Section 3.02, the Company may, at its option, redeem the Securities, in whole but not in part:

 

  (i) on any Reset Date;

 

  (ii) at any time if a Regulatory Event has occurred and is then continuing; or

 

  (iii) at any time if a Tax Event has occurred and is then continuing;

in each of cases (i) to (iii) above, at their principal amount, plus accrued and unpaid interest to the Redemption Date (including Additional Amounts, if any), excluding any interest that has been cancelled or is deemed cancelled in accordance with Section 2.03 or that the Company would not be permitted to pay pursuant to Section 2.04.

(b) Prior to the delivery of any notice of redemption in respect of a redemption under (a)(iii) the Company shall deliver to the Trustee an opinion from a recognized law or tax firm of international standing, chosen by the Company, in a form satisfactory to the Trustee, confirming that the Company is entitled to exercise its right of redemption under (a)(iii).

 

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Section 3.02 Notice of Redemption; Automatic Revocation.

(a) Notice of redemption of the Securities shall be given as provided in Section 11.04 of the Base Indenture. Such notice shall state the place or places where the Securities are to be surrendered for payment of the Redemption Price and that on the date specified for redemption, each Security shall be redeemed and the principal amount of each Security will become due and payable and that, subject to certain exceptions, interest shall cease to accrue after the redemption date. A notice of redemption shall be irrevocable, except that the occurrence of a Trigger Event or Liquidation Event or the exercise of the Dutch Bail-In Power by the Relevant Resolution Authority prior to the date fixed for redemption shall automatically revoke such notice and no Securities shall be redeemed and no payment in respect of the Securities shall be due and payable.

(b) Prior to giving notice of redemption pursuant to Section 3.01(a)(ii) or Section 3.01(a)(iii), the Company shall deliver to the trustee a certificate signed by any two (2) members of the Executive Board stating that the conditions to such redemption have been satisfied.

(c) The Company shall not give a notice of redemption of the Securities following the occurrence of a Trigger Event.

(d) The Company shall promptly deliver notice to the Trustee and the Holders of the Securities of any event that shall have automatically revoked any redemption notice pursuant to Section 3.02(a).

Section 3.03 Conditions to Redemption and Purchase.

(a) The Company may not give notice of any redemption of or redeem, nor may the Company or any member of the Group purchase, any Securities unless the Company shall have obtained the prior consent of the Relevant Regulator.

(b) Any redemption or purchase of the Securities is subject to the additional conditions as set out below, in each case if and to the extent required under the Capital Regulations:

 

  (i) either (A) on or before such redemption or purchase of the Securities, the Company shall have replaced the Securities with own funds instruments of equal or higher quality on terms that are sustainable for the Company’s income capacity or (B) the Company has demonstrated to the satisfaction of the Relevant Regulator that the available own funds would, following such redemption or purchase, exceed the capital ratios (including any capital buffer requirements) required under CRD IV by a margin that the Relevant Regulator considers necessary at such time; and

 

  (ii) in respect of a redemption prior to the fifth anniversary of the Issue Date, (A) in the case of redemption due to the occurrence of a Regulatory Event, the Company shall have demonstrated to the satisfaction of the Relevant Regulator that the change in the regulatory classification of the Securities was not reasonably foreseeable as at the Issue Date; or (B) in the case of redemption due to the occurrence of a Tax Event, the Company shall have demonstrated to the satisfaction of the Relevant Regulator that the change in the applicable tax treatment of the Securities is material and was not reasonably foreseeable as at the Issue Date; and

 

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  (iii) if, at the time of such redemption or purchase, the Capital Regulations permit the redemption or purchase only after compliance with one or more alternative or additional pre-conditions to those set out in (i) and (ii) above, the Company shall have complied with such other pre-condition(s).

Section 3.04 Optional Purchases. If permitted by the Capital Regulations, the Issuer or any member of the Group may, at any time (including prior to the fifth anniversary of the Issue Date), in the context of market making, liability management exercises, or otherwise, but only if expressly allowed, as agreed by the Relevant Regulator, purchase or procure others to purchase beneficially for its account any of the outstanding Securities in any manner and at any price in accordance with the Capital Regulations. Any such purchases will be subject to the satisfaction of the conditions set out in Section 3.03.

ARTICLE IV

CONVERSION OF THE SECURITIES

Section 4.01 Conversion upon Trigger Event.

(a) Upon the occurrence of a Trigger Event, the Company shall:

 

  (i) immediately inform the Relevant Regulatory Authority of its occurrence;

 

  (ii) deliver to the Trustee an Officers’ Certificate signed by two (2) members of the Executive Board stating that a Trigger Event has occurred (a “Trigger Event Officers’ Certificate”);

 

  (iii) appoint a financial institution, trust company, depository entity, nominee entity or similar entity that is wholly independent of the Company (the entity so appointed, the “Conversion Shares Depositary”) as promptly as practicable thereafter; and

 

  (iv) as promptly as practicable following the Company’s appointment of a Conversion Shares Depositary (or of its ascertaining that it is not reasonably able to do so) and the delivery of a Trigger Event Officers’ Certificate to the Trustee, and, in any event, within such period as the Relevant Regulator may require, the Company shall deliver a Conversion Notice to the Trustee and to Holders (via DTC).

As a condition of its appointment, the Conversion Shares Depositary shall be required to undertake, for the benefit of the Holders and Beneficial Owners of the Securities, to hold the Conversion Shares on their behalf in one or more segregated accounts and perform each function ascribed to it in this First Supplemental Indenture. If the Company is unable to appoint a Conversion Shares Depositary prior to delivery of the Conversion Notice, it shall make such other arrangements as it deems reasonable to effect the delivery of the Conversion Shares to or for the benefit of the Holders of the Securities (the “Alternative Delivery Arrangements”). Each Holder and Beneficial Owner of any Securities shall be deemed to have irrevocably directed the Company to issue the Conversion Shares in accordance with such arrangements.

 

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(b) A Conversion Notice shall be given substantially in the form of Exhibit B, with such modifications as shall be reasonably necessary to reflect any Alternative Delivery Arrangements. Such Conversion Notice shall be completed consistent with the requirements of this Article IV and shall specify, among other things:

 

  (i) that a Trigger Event has occurred with respect to the Securities;

 

  (ii) the Conversion Price;

 

  (iii) a Conversion Date occurring without delay upon the occurrence of the Trigger Event and in any event within one (1) month following the date of such Trigger Event and in accordance with the requirements set out in Article 54 of the CRD IV Regulation as at the Issue Date;

 

  (iv) the Notice Cut-Off Date; and

 

  (v) a Final Cancellation Date, which shall be to the extent practicable no more than fifteen (15) Business Days following the Notice Cut-Off Date

A form of Conversion Shares Settlement Notice substantially in the form of Exhibit C, with such modifications as shall be reasonably necessary to reflect any Alternative Delivery Arrangements or any changes in the procedures of the Depositary applicable to the Conversion, shall be attached to the Conversion Notice as Annex A thereto.

(c) If the outstanding Securities are issued in definitive form, the Trustee shall mail the Conversion Notice to the Holders of the Securities at their addresses shown on the Security Register within two (2) Business Days of its receipt from the Company and, if the Securities are then held by DTC in the form of Global Securities, the Trustee shall request that DTC post the Conversion Notice on its Reorganization Inquiry for Participants System pursuant to DTC’s procedures then in effect (or such other system as DTC uses for providing notices to holders of securities). The date on which the Conversion Notice shall be deemed to have been given shall be the date on which it is delivered by the Issuer to DTC.

(d) The Conversion shall occur on the Conversion Date specified in the Conversion Notice. On the Conversion Date, the Company shall issue and deliver the Conversion Shares to the Conversion Shares Depositary (or, if it shall not have been able to appoint a Conversion Shares Depositary, pursuant to any Alternative Delivery Arrangements). If the Ordinary Shares are then represented by Bearer Depositary Receipts and only Bearer Depositary Receipts are admitted to listing on the Relevant Stock Exchange, the Company shall issue the required number of Ordinary Shares to the Trust and cause the Trust to issue and deliver the required number of Bearer Depositary Receipts to the Conversion Shares Depositary (or, if it shall not have been able to appoint a Conversion Shares Depositary, pursuant to any Alternative Delivery Arrangements). Certificates in respect of Bearer Depositary Receipts shall not be issued upon Conversion, and Bearer Depositary Receipts may not be exchanged for Ordinary Shares, subject as provided by applicable law or in the Company’s articles of association, the articles of association of the Trust or the terms of administration (administratievoorwaarden) of the Trust as the same may be in force from time to time. All of the Company’s obligations to the Holders and Beneficial Owners of the Securities under the Securities and the Indenture shall be irrevocably and automatically released in consideration of the Company’s issuance and delivery of such Conversion Shares on the Conversion Date pursuant to this Section 4.01(d) and shall under no circumstances shall such released obligations be reinstated. Upon such issuance and delivery, (i) the principal amount of each Security shall automatically be reduced to zero and each Holder or Beneficial Owner of a Security shall have recourse only to the Conversion Shares Depositary for delivery of the Conversion Shares and (ii) the Securities shall remain in existence until the applicable Cancellation Date for the sole purpose of evidencing the Holders’ and Beneficial Owners’ right to receive Conversion

 

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Shares from the Conversion Shares Depository or pursuant to any Alternative Delivery Arrangements. Any interest in respect of an Interest Period ending on any Interest Payment Date or Redemption Date falling between the date of a Trigger Event and the Conversion Date shall be deemed to have been cancelled upon the occurrence of such Trigger Event and shall not be due and payable. The Holders’ sole recourse for the Company’s failure to issue and deliver the Conversion Shares to the Conversion Shares Depositary or pursuant to any Alternative Delivery Arrangements on the Conversion Date shall be the right to demand that the Company make such issuance and delivery.

(e) If a Conversion Shares Depositary shall have been appointed, the Conversion Shares shall initially be registered in the name of the Conversion Shares Depository (which shall hold the Conversion Shares on behalf of the Holders and Beneficial Owners of the Securities), and each Holder and Beneficial Owner of the Securities shall be deemed to have irrevocably directed the Company to issue the Conversion Shares corresponding to the conversion of its holding of Securities to the Conversion Shares Depository.

(f) Each Holder and Beneficial Owner of Securities shall be entitled to direct the Conversion Shares Depository to exercise on its behalf all rights of a holder of the Conversion Shares (including voting rights and rights to receive dividends) other than any right to sell or otherwise transfer the Conversion Shares, which no such Holder or Beneficial Owner shall be entitled to exercise prior to the delivery of the Conversion Shares to it in accordance with the procedures set forth under Section 4.03.

(g) The Company’s calculation of its Group CET1 Capital, Group Total Risk Exposure Amount and Group CET1 Ratio, as well as any Trigger Event Officers’ Certificate delivered to the Trustee, shall be binding on the Trustee and the Holders and Beneficial Owners of the Securities.

Section 4.02 Conversion Shares.

(a) The number of Conversion Shares to be issued to the Conversion Shares Depository on the Conversion Date shall equal the quotient obtained by dividing the (i) aggregate principal amount of the Securities Outstanding immediately prior to the Conversion on the Conversion Date by (ii) the Conversion Price rounded down, if necessary, to the nearest whole number of Conversion Shares. Fractions of Conversion Shares shall not be issued following a Conversion and no cash payment shall be made in lieu thereof. The number of Conversion Shares to be held by the Conversion Shares Depository for the benefit of each Holder shall equal the quotient obtained by dividing (i) the number of Conversion Shares thus calculated by (ii) the Tradable Amount of the book-entry interests in the Securities held by such Holder on the Conversion Date rounded down, if necessary, to the nearest whole number of Conversion Shares.

(b) The Conversion Shares issued following a Conversion shall be fully paid and non-assessable and shall in all respects rank pari passu with the fully paid Ordinary Shares in issue on the Conversion Date, except in any such case for any right excluded by mandatory provisions of applicable law, and except that the Conversion Shares so issued shall not rank for (or, as the case may be, the relevant Holder or Beneficial Owner shall not be entitled to receive) any rights, the entitlement to which falls prior to the Conversion Date.

(c) If the Company has an ADS Depositary Facility in effect on the Conversion Date, the Conversion Shares Depositary shall deposit with the ADS Depositary any Conversion Shares in respect of which any Holder or Beneficial Owner elects to receive ADSs pursuant to a validly completed Conversion Shares Settlement Notice on the applicable Settlement Date and shall cause the ADS Depositary to issue the corresponding number of ADSs to such Holder or Beneficial Owner in accordance with its applicable procedures, including with respect to the payment of any applicable fees and expenses

 

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of the ADS Depositary. The obligation to deliver ADSs if a Holder or Beneficial Owner elects to have its Conversion Shares delivered in such form will apply only if at the time of Conversion the Issuer continues to maintain an ADS Depositary Facility. The delivery of the Conversion Shares to the ADS Depositary shall be deemed for all purposes to constitute the delivery of the Conversion Shares to any such Holder or Beneficial Owner of Securities.

(d) The procedures set forth in Sections 4.01 and 4.02 are subject to change to reflect changes in DTC practices, and the Company may make changes to the procedures set forth in Sections 4.01 and 4.02 to the extent reasonably necessary, in the opinion of the Company, to reflect such changes in DTC practices.

Section 4.03 Settlement Procedure.

(a) Delivery of the Conversion Shares to the Holders and Beneficial Owners of the Securities shall be made in accordance with the procedures set forth in this Section 4.03.

(b) No Holder or Beneficial Owner (or the custodian, nominee, broker or other representative thereof) shall receive delivery of the relevant Conversion Shares unless such Holder or Beneficial Owner (or the custodian, nominee, broker or other representative thereof) unless the Conversion Shares Depository shall have received its Conversion Shares Settlement Notice (and, if required, the Securities to which it relates) on or before the Notice Cut-Off Date. Any notice or Securities received after the end of normal business hours at the specified office of the Conversion Shares Depository shall be deemed received on the following Business Day.

(c) If the outstanding Securities are then issued in the form of Global Securities, no Conversion Shares Settlement Notice shall be valid unless given in accordance with the applicable procedures of the Depositary and in a form acceptable to it. If the outstanding Securities are then issued in definitive form, no Conversion Shares Settlement Notice shall be valid for any purpose unless the Conversion Shares Depositary shall have received the Securities to which it relates, duly endorsed to the Conversion Shares Depositary. Each Conversion Shares Settlement Notice must be given in a form acceptable to the Conversion Shares Depositary.

(d) Subject to satisfaction of the requirements and limitations set forth in this Section 4.03 and provided that the Conversion Shares Settlement Notice and the relevant Securities, if applicable, are delivered on or before the Notice Cut-Off Date, the Conversion Shares Depository shall deliver the relevant Conversion Shares (rounded down to the nearest whole number of Conversion Shares) to the Holder or Beneficial Owner (or custodian, nominee, broker or other representative thereof) of the relevant Securities completing the relevant Conversion Shares Settlement Notice in accordance with the instructions given in such Conversion Shares Settlement Notice on the applicable Settlement Date.

(e) Each Conversion Shares Settlement Notice shall be irrevocable. The Conversion Shares Depository shall determine, in its sole and absolute discretion, whether any Conversion Shares Settlement Notice has been properly completed and delivered, and such determination shall be conclusive and binding on the relevant Holder or Beneficial Owner. If any Holder or Beneficial Owner fails to properly complete and deliver a Conversion Shares Settlement Notice and the relevant Securities, if applicable, prior to the Notice Cut-Off Date, the Conversion Shares Depository shall be entitled to treat such Conversion Shares Settlement Notice as null and void.

(f) Each Security shall be cancelled on the applicable Cancellation Date.

 

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(g) Neither the Company, nor any member of the Group, shall be liable for any taxes or capital, stamp, issue and registration or transfer taxes or duties arising on Conversion or that may arise or be paid as a consequence of the issue and delivery of Conversion Shares Conversion (other than any taxes due by the Company or any member of the Group according to the Dutch Corporate Income Tax Act 1969 (Wet op de vennootschapsbelasting 1969), which tax shall be borne solely by the Holder, Beneficial Owner or, if different, the person to whom the Conversion Shares are delivered.

Section 4.04 Failure to Deliver a Conversion Shares Settlement Notice. The Conversion Shares Depositary shall continue to hold all Conversion Shares for which it has not received a valid Conversion Settlement Notice (and the related Securities, if applicable) on or prior to the Notice Cut-Off Date until the Final Cancellation Date. Any Holder or Beneficial Owner (or custodian, nominee, broker or other representative thereof) of Securities delivering a Conversion Shares Settlement Notice after the Notice Cut-Off Date shall be required to provide evidence of its entitlement to the relevant Conversion Shares, satisfactory to the Conversion Shares Depository in its sole and absolute discretion, in order to receive delivery of such Conversion Shares. The Company shall have no liability to any Holder or Beneficial Owner of the Securities for any loss resulting from such Holder’s or Beneficial Owner’s failure to receive any Conversion Shares, or from any delay in the receipt thereof, in each case as a result of such Holder or Beneficial Owner (or custodian, nominee, broker or other representative thereof) failing to duly submit a valid Conversion Shares Settlement Notice and the relevant Securities, if applicable, on a timely basis or at all.

Section 4.05 Adjustment of Floor Price.

(a) The Floor Price shall be subject to adjustment as set forth in Annex I (Anti-Dilution Provisions).

(b) There shall at all times any Securities are Outstanding be a conversion calculation agent (the “Conversion Calculation Agent”), which may be the Company or another Person appointed by the Company to serve in such capacity, who shall be responsible in consultation with the Company for the calculation of all adjustments to the Floor Price to be made pursuant to Annex I (Anti-Dilution Provisions) and all determinations required to be made pursuant thereto. Determinations, calculations and adjustments performed by the Conversion Calculation Agent pursuant to this Section 4.05(b) shall be final and binding (in the absence of bad faith or manifest error) on Holders and Beneficial Owners of the Securities. To the extent Annex I (Anti-Dilution Provisions) at any time calls for any calculation or determination to be made by an Independent Financial Adviser, if the Person then serving as Conversion Calculation Agent is not wholly independent of the Company, the Company shall use commercially reasonable efforts to appoint an Independent Financial Adviser to make such calculation or determination. A written opinion of such Independent Financial Adviser in respect of such calculation or determination shall be conclusive and binding on the Company and the Holders and Beneficial Owners, save in the case of manifest error.

(c) The Company shall give notice of any adjustments to the Floor Price to the Holders of the Securities, with a copy to the Trustee, and if the Securities are then held in the form of Global Securities shall cause the Depositary to deliver such notice to its participants in accordance with its applicable procedures.

 

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Section 4.06 Covenants Relating to Conversion Shares.

(a) For so long as any Security remains Outstanding, the Company shall:

 

  (i) not make any issue, grant or distribution or take or omit to take any other action if the effect thereof would be that, on Conversion, Ordinary Shares could not, under any applicable law then in effect, be legally issued as fully paid;

 

  (ii) if any offer is made to all (or as nearly as may be practicable all) shareholders (or all (or as nearly as may be practicable all) such shareholders other than the offeror and/or any associates of the offeror) to acquire all or a majority of the issued Ordinary Shares, or if a scheme is proposed with regard to such acquisition, give notice of such offer or scheme to each Holder of any Securities at the same time as any notice thereof is sent to the shareholders (or as soon as practicable thereafter) that details concerning such offer or scheme may be obtained from the specified offices of the Trustee;

 

  (iii) use commercially reasonable efforts to ensure that the Ordinary Shares issued upon Conversion shall be admitted to listing and trading on the Relevant Stock Exchange;

 

  (iv) maintain all corporate authorizations necessary to issue and allot at all times sufficient Ordinary Shares, free from pre-emptive or other preferential rights, to enable Conversion of the Securities to be satisfied in full;

 

  (v) use commercially reasonable efforts promptly to appoint a Conversion Shares Depositary as soon as practicable following the occurrence of a Trigger Event; and

 

  (vi) If, at the time of a Conversion the Issuer has an ADS Depositary Facility in effect, the Company shall ensure that it has sufficient capacity under its then effective registration statement on Form F-6 (or successor form) to cause the ADS Depositary to issue the number of ADSs corresponding to the number of ADSs that Holders and Beneficial Owners have elected to receive pursuant to Section 4.02(c).

(b) The Company shall not be required to comply with any obligation set forth in Section 4.06(a)(i) if its compliance with such obligation would violate the Capital Regulations or (ii) to the extent that such compliance would cause a Regulatory Event to occur.

ARTICLE V

DUTCH BAIL-IN POWER

Section 5.01 Agreement with Respect to Exercise of Dutch Bail-In Power.

(a) By acquiring any Securities, each Holder and Beneficial Owner of the Securities or any interest therein acknowledges, agrees to be bound by and consents to the exercise of any Dutch Bail-In Power by the Relevant Resolution Authority that may result in the cancellation of all, or a portion, of the principal amount of, or interest on, the Securities and/or the conversion of all, or a portion of, the principal amount of, or interest on, the Securities into shares or other securities or other obligations of the Company or another person, including by means of a variation to the terms of the Securities or any expropriation of the Securities, in each case to give effect to the exercise by the Relevant Resolution Authority of such Dutch Bail-In Power. Each Holder and Beneficial Owner of the Securities or any interest therein further acknowledges and agrees that the rights of Holders and Beneficial Owners of the

 

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Securities are subject to, and will be varied, if necessary, so as to give effect to, the exercise of any Dutch Bail-In Power by the Relevant Resolution Authority. For the avoidance of doubt, the potential conversion of the Securities into shares, other securities or other obligations in connection with the exercise of any Dutch Bail-In Power by the Relevant Resolution Authority is separate and distinct from a Conversion following a Trigger Event. In addition, by acquiring any Securities, each Holder and Beneficial Owner of the Securities or any interest therein further acknowledges, agrees to be bound by, and consents to the exercise by the Relevant Resolution Authority of any power to suspend any payment in respect of the Securities for a temporary period.

(b) No repayment of the principal amount of the Securities or payment of interest on the Securities shall be come due and payable after the exercise of any Dutch Bail-In Power by the Relevant Resolution Authority unless such repayment or payment would be permitted to be made by the Company under the laws and regulations of The Netherlands and the European Union applicable to the Company.

(c) Upon the exercise of the Dutch Bail-In Power by the Relevant Resolution Authority with respect to the Securities, the Company shall provide a written notice of such event to DTC (if the Securities are then held by DTC in the form of Global Securities) for the purposes of notifying Holders of Securities of such occurrence, with a copy to the Trustee for information purposes, as soon as practicable regarding such exercise of the Dutch Bail-In Power.

(d) Holders or Beneficial Owners of Securities that acquire them in the secondary market shall be deemed to acknowledge, agree to be bound by and consent to the same provisions specified herein to the same extent as the Holders or Beneficial Owners of the Securities that acquire the Securities upon their initial issuance, including, without limitation, with respect to the acknowledgement and agreement to be bound by and consent to the terms of the Securities, including in relation to interest cancellation, the Conversion, the Dutch Bail-in Power and the limitations on remedies specified in Article VI hereof.

ARTICLE VI

DEFAULTS AND REMEDIES

The following provisions shall apply to the Securities in lieu of Sections 5.01 and 5.02 and in addition to the other provisions set forth in Article 5 of the Base Indenture:

Section 6.01 Liquidation Event. A Liquidation Event occurring prior to the occurrence of a Trigger Event shall be the sole Event of Default with respect to the Securities. The principal amount of the Securities shall become immediately due and payable upon an Event of Default with respect to the Securities, without the need of any further action on the part of the Trustee, the Holders or any other Person.

Section 6.02 Failure to Pay Principal Amount. Any Holder of a Security (or the Trustee acting on behalf of all Holders of the Securities) may demand payment of the principal amount of the Securities upon a Payment Default. The Trustee may, at its discretion, in such event institute bankruptcy proceedings in The Netherlands (or such other jurisdiction in which the Company may be organized) (but not elsewhere) against the Company and/or prove in a bankruptcy or liquidation of the Company and/or claim in a liquidation or administration of the Company.

 

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Section 6.03 Performance Obligations. The Trustee may without further notice institute such proceedings against the Company as it may deem fit to enforce or seek damages for the breach of any Performance Obligation.

Section 6.04 No Other Remedies and Other Terms.

(a) Other than the limited remedies specified in this Article VI, and subject to Section 6.04(c), no remedy against the Company shall be available to the Trustee (acting on behalf of the Holders) or to any Holder or Beneficial Owner, whether for the recovery of amounts owing in respect of such Securities or under the Indenture, or in respect of any breach by the Company of any of the Company’s obligations under or in respect of the terms of such Securities or under the Indenture in relation thereto; provided that the Company’s obligations to the Trustee under Section 6.07 of the Base Indenture and the Trustee’s rights to have money collected applied first to pay amounts due to it under such Section pursuant to Section 5.06 of the Base Indenture expressly survive any Default and are not subject to the subordination provisions of Article VII of this First Supplemental Indenture.

(b) In the case of a Default under the Securities, the Trustee shall exercise such of the rights and powers vested in it by the Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs. For purposes of the Base Indenture, “Event of Default” in respect of the Securities shall mean “Default” as defined in this First Supplemental Indenture, except that the term “Event of Default” as used in Section 3.05(b)(ii) of the Base Indenture and Article 8 of the Base Indenture shall mean “Liquidation Event.”

(c) Notwithstanding the limitations on remedies specified under Article VI, (i) the Trustee shall have such powers as are required to be authorized to it under the Trust Indenture Act in respect of the rights of the Holders and Beneficial Owners of the Securities under the provisions of the Indenture, and (ii) nothing shall impair the right of a Holder or Beneficial Owner of the Securities under the Trust Indenture Act, absent such Holder’s or Beneficial Owner’s consent, to sue for any payment due but unpaid with respect to the Securities; provided that, in the case of (i) and (ii) above, any payments in respect of, or arising from, the Securities, including any payments or amounts resulting or arising from the enforcement of any rights under the Trust Indenture Act in respect of the Securities, shall be subject to the subordination provisions set forth in Section 7.01 of this First Supplemental Indenture.

Section 6.05 Waiver of Past Defaults.

(a) Holders of not less than a majority in aggregate principal amount of the Outstanding Securities may on behalf of the Holders of all of the Securities waive any past Default that results from a breach by the Company of a Performance Obligation. Holders of a majority of the aggregate principal amount of the Outstanding Securities shall not be entitled to waive any past default that results from a Liquidation Event or a Non-Payment Event.

(b) Upon the occurrence of any waiver permitted by Section 6.05(a), such Default shall cease to exist, and any Default with respect to any series arising therefrom shall be deemed to have been cured and not to have occurred for every purpose of the Base Indenture, but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.

 

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ARTICLE VII

SUBORDINATION AND SET-OFF

Section 7.01 Subordination.

(a) The Securities shall constitute the Company’s direct, unsecured and subordinated obligations, ranking equally without any preference among themselves. The rights and claims of the Holders and Beneficial Owners of the Securities in respect of or arising from the Securities shall be subordinated to the claims of holders of Senior Instruments.

(b) If a Liquidation Event occurs prior to a Trigger Event, the Securities shall be subordinated to Senior Instruments, and rank pari passu with all Parity Instruments. By virtue of such subordination, any payments to the holders of the Securities upon any Liquidation Event shall only be made after all payment obligations of the Company in respect of Senior Instruments have been satisfied. The amount of any claim in respect of each Security shall be its principal amount.

(c) If a Liquidation Event occurs after a Trigger Event but before the Conversion Shares deliverable upon Conversion are issued and delivered pursuant to Section 4.01, each Holder or Beneficial Owner of a Security shall have a claim, in lieu of any other payment by the Company, for the amount, if any, it would have been entitled to receive if the Conversion relating to such Trigger Event and the relevant number of Conversion Shares to which such holder would have been entitled had been delivered to such holder had occurred immediately prior to the Liquidation Event.

Section 7.02 No Set-Off. Subject to applicable law, neither any no Holder or Beneficial Owner of Securities, nor the Trustee acting on their behalf, may exercise, claim or plead any right of set-off, compensation or retention in respect of any amount owed to it by the Company in respect of or arising under, or in connection with, the Securities or the Indenture and each Holder and Beneficial Owner of Securities, by virtue of its holding of any Securities, and the Trustee acting on their behalf, shall be deemed to have waived all such rights of set-off, compensation or retention. If notwithstanding the foregoing any amounts due and payable to any Holder or Beneficial Owner of Securities by the Company in respect of, or arising under, the Securities are discharged by set-off, such Holder or Beneficial Owner shall, subject to applicable law, immediately pay an amount equal to the amount of such discharge to the Company (or, if a Liquidation Event shall have occurred, the liquidator or administrator of the Company, as the case may be) and, until such time as payment is made, shall hold an amount equal to such amount in trust or otherwise for the Company (or the liquidator or administrator of the Company, as the case may be) and, accordingly, any such discharge shall be deemed not to have taken place. The foregoing shall not prevent any set-off in order to give effect to a Conversion.

ARTICLE VIII

ADDITIONAL TRUSTEE PROTECTIONS

Section 8.01 Conversion. Notwithstanding anything to the contrary contained in the Indenture or the Securities,

(a) once the Company has delivered a Conversion Notice, (i) no Holder or Beneficial Owner of a Security shall have any rights whatsoever under the Indenture or the Securities to instruct or direct the Trustee to take any action whatsoever and (ii) as of the date of the Conversion Notice, except for any indemnity and/or security provided by any Holder or by any Beneficial Owner in such direction or related to such direction, any direction previously given to the Trustee by any Holders or by any

 

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Beneficial Owners shall cease automatically and shall be null and void and of no further effect; except in each case of (i) and (ii) of this Section 8.01, with respect to any rights of Holders or Beneficial Owners with respect to any payments under the Securities that were unconditionally due and payable prior to the date of the Conversion Notice or unless the Trustee is instructed in writing by the Company to act otherwise;

(b) the Trustee shall be entitled to conclusively rely on and accept a Trigger Event Officers’ Certificate without any duty whatsoever of further inquiry as sufficient and conclusive evidence of the occurrence of a Trigger Event, and such Trigger Event Officers’ Certificate shall be conclusive and binding on the Trustee and each Holder and Beneficial Owner of any Security or interest therein; and

(c) the Trustee shall not be liable with respect to (i) the calculation or accuracy of the Group CET1 Capital, Group Total Risk Exposure Amount and Group CET1 Ratio in connection with the occurrence of a Trigger Event and the timing of such Trigger Event, (ii) the failure of the Company to provide any information whatsoever in respect of a Trigger Event to any Holder or Beneficial Owner of a Security, (iii) any aspect of the Company’s decision to deliver a Conversion Notice or the related Conversion or (iv) the adequacy of the disclosure of these provisions to any Holder or Beneficial Owner of any Security or any interest therein or for the direct or indirect consequences thereof.

Section 8.02 Indemnification by the Company. The Company’s obligations to indemnify the Trustee in accordance with Section 6.07 of the Base Indenture shall survive any exercise of the Dutch Bail-In Power by the Relevant Resolution Authority with respect to the Securities and any Conversion hereunder.

ARTICLE IX

ADDITIONAL ACKNOWLEDGEMENTS AND AGREEMENTS

OF HOLDERS AND BENEFICIAL OWNERS

By acquiring the Securities, each Holder and Beneficial Owner of a Security or any interest therein, including any Person acquiring any such Security or interest therein after the date hereof, acknowledges and agrees with and for the benefit of the Company and the Trustee as follows:

Section 9.01 Dutch Bail-In Power. Such Holder and Beneficial Owner of a Security or any interest therein:

(a) acknowledges and agrees that no exercise of the Dutch Bail-In Power by the Relevant Resolution Authority with respect to the Securities or cancellation or deemed cancellation of interest on the Securities pursuant to Sections 2.03 and 2.04 shall give rise to a default for purposes of Section 315(b) (Notice of Default) and Section 315(c) (Duties of the Trustee in Case of Default) of the Trust Indenture Act;

(b) to the extent permitted by the Trust Indenture Act, waives any and all claims against the Trustee for, agrees not to initiate a suit against the Trustee in respect of, and agrees that the Trustee shall not be liable for, any action that the Trustee takes, or abstains from taking, in either case in accordance with the exercise of the Dutch Bail-In Power by the Relevant Resolution Authority with respect to the Securities;

 

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(c) acknowledges and agrees that, upon the exercise of any Dutch Bail-In Power by the Relevant Resolution Authority, (i) the Trustee shall not be required to take any further directions from Holders or Beneficial Owners of the Securities under Section 5.12 of the Base Indenture and (ii) the Indenture shall impose no duties upon the Trustee whatsoever with respect to the exercise of any Dutch Bail-In Power by the Relevant Resolution Authority. If Holders or Beneficial Owners of the Securities have given a direction to the Trustee pursuant to Section 5.12 of the Base Indenture prior to the exercise of any Dutch Bail-in Power by the Relevant Resolution Authority, such direction shall cease to be of further effect upon such exercise of any Dutch Bail-in Power and shall become null and void at such time. Notwithstanding the foregoing, if, following the completion of the exercise of the Dutch Bail-In Power by the Relevant Resolution Authority, the Securities remain outstanding, then the Trustee’s duties under the Indenture shall remain applicable with respect to the Securities following such completion to the extent that the Company and the Trustee shall agree pursuant to a supplemental indenture or an amendment to this First Supplemental Indenture; and

(d) (i) consents to the exercise of any Dutch Bail-In Power as it may be imposed without any prior notice by the Relevant Resolution Authority of its decision to exercise such power with respect to the Securities and (ii) authorizes, directs and requests DTC and any direct participant in DTC or other intermediary through which it holds such Securities to take any and all necessary action, if required, to implement (x) the Conversion and (y) the exercise of any Dutch Bail-In Power with respect to the Securities as it may be imposed, without any further action or direction on the part of such Holder and such Beneficial Owner.

Section 9.02 Conversion Upon a Trigger Event. Such Holder or Beneficial Owner consents to the Conversion of its Securities following a Trigger Event, the appointment of the Conversion Shares Depository, and the issuance of the Conversion Shares to the Conversion Shares Depository, all of which may occur without any further action on the part of such Holder or Beneficial Owner or the Trustee, and following which no Holder or Beneficial Owner of any Securities will have any rights against the Company with respect to the payment of principal of, or interest on, such Securities. To the extent the Securities are held in the form of Global Securities, such Holder or Beneficial Owner authorizes, directs and requests the Depositary, any direct participant therein and any other intermediary through which it holds such Securities to take any and all necessary action, if required, to implement the Conversion without any further action or direction on the part of such Holder or Beneficial Owner or the Trustee. Upon a Trigger Event and Conversion, the principal amount of the Securities may be applied in such manner as the Company deems necessary in connection with the issue and paying up of the relevant Conversion Shares and the delivery thereof to the Conversion Shares Depositary or pursuant to any Alternative Delivery Arrangements.

Section 9.03 Interest Cancellation. Interest shall be payable on the Securities solely at the discretion of the Company, and no amount of interest shall become due and payable in respect of the relevant Interest Payment Date or related Interest Period or Redemption Date to the extent that it has been cancelled or deemed cancelled (in whole or in part) by the Company in its sole discretion and/or as a result of (i) the Company having insufficient Distributable Items, or (ii) the relevant interest payment’s causing the Maximum Distributable Amount to be exceeded. A cancellation or deemed cancellation of interest (in each case, in whole or in part) in accordance with the terms of the Indenture shall not constitute a default in payment or otherwise under the terms of the Securities.

Section 9.04 Waiver of Claims. Such Holder or Beneficial Owner unconditionally and irrevocably agrees to each and every provision of the Indenture and the Securities and waives, to the fullest extent permitted by the Trust Indenture Act and any other applicable law, any and all claims against the Trustee arising out of its acceptance of its trusteeship for the Securities, including, without limitation, claims related to or arising out of or in connection with a Trigger Event and/or any Conversion.

 

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Section 9.05 Successors and Assigns. All authority conferred or agreed to be conferred by any Holder or Beneficial Owner pursuant to this Article IX shall be binding upon the successors, assigns, heirs, executors, administrators, trustees in bankruptcy and legal representatives of such Holder or Beneficial Owner.

ARTICLE X

MISCELLANEOUS PROVISIONS

Section 10.01 Effectiveness. This First Supplemental Indenture shall become effective upon its execution and delivery.

Section 10.02 Modification.

(a) Without the consent of any Holders, the Company and the Trustee may make such modifications to the provisions of Sections 4.01 and 4.03 and Exhibits B and C as are reasonably necessary, in the opinion of the Company, to reflect the procedures of the Depositary in effect at the time of any Conversion or issuance of the Securities in definitive form and the requirements of the Conversion Shares Depositary.

(b) Any modification to or waiver of Section 4.06 shall require the consent of the holders of at least 75% in principal amount of the Outstanding Securities.

(c) Any amendment or modification of the Securities (or of the Indenture with respect to the Securities) shall be subject to the Company obtaining the prior written consent of the Relevant Regulator.

(d) The Company may not amend Section 7.01 to alter the subordination of any outstanding Securities without the consent of each holder of any Senior Instrument then outstanding who would be adversely affected.

(e) The Company may not amend Section 7.01 in a manner that would adversely affect the other Capital Securities of any one or more series then outstanding in any material respect, without the consent of the holders of a majority in aggregate principal amount of all affected series then outstanding, voting together as one class (and also of any affected series that by its terms is entitled to vote separately as a series).

Section 10.03 Original Issue. The Securities may, upon execution of this First Supplemental Indenture, be executed by the Company and delivered by the Company to the Trustee for authentication, and the Trustee shall, upon delivery of a Company Order, authenticate and deliver such Securities as in such Company Order provided.

Section 10.04 Ratification and Integral Part. The Base Indenture as supplemented by this First Supplemental Indenture, is in all respects ratified and confirmed, including without limitation all the rights, immunities and indemnities of the Trustee, and this First Supplemental Indenture shall be deemed an integral part of the Base Indenture in the manner and to the extent herein and therein provided.

Section 10.05 Priority. This First Supplemental Indenture shall be deemed part of the Base Indenture in the manner and to the extent herein and therein provided. The provisions of this First Supplemental Indenture shall, with respect to the Securities and subject to the terms hereof, supersede the provisions of the Base Indenture to the extent the Base Indenture is inconsistent herewith.

 

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Section 10.06 Successors and Assigns. All covenants and agreements in the Base Indenture, as supplemented and amended by this First Supplemental Indenture, by the Company shall bind its successors and assigns, whether so expressed or not.

Section 10.07 Counterparts. This First Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.

Section 10.08 Governing Law. This First Supplemental Indenture and the Securities shall be governed by and construed in accordance with the laws of the State of New York, except for the subordination provisions and the waiver of set-off provisions in Article VII, which are governed by, and construed in accordance with, Dutch law.

 

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IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed, all as of the day and year first above written.

 

ING GROEP N.V.
By:

/s/ J.D. Wolvius

Name: J.D. Wolvius
Title: Head of Capital Management
By:

/s/ P.G. van der Linde

Name: P.G. van der Linde
Title: Senior Legal Counsel
THE BANK OF NEW YORK MELLON, LONDON BRANCH, AS TRUSTEE
By:

/s/ Paul Cattermole

Name: Paul Cattermole
Title: Vice President

Signature Page to the First Supplemental Indenture


Annex I

 

Anti-Dilution Provisions

Adjustment of Floor Price

Upon the happening of any of the events described below, the Floor Price shall be adjusted as follows:

 

  (i) If and whenever there shall be a consolidation, reclassification/redesignation or subdivision affecting the number of ordinary shares, the Floor Price shall be adjusted by multiplying the Floor Price in force immediately prior to such consolidation, reclassification/redesignation or subdivision by the following fraction:

A

B

where:

 

  A is the aggregate number of ordinary shares in issue immediately before such consolidation, reclassification/redesignation or subdivision, as the case may be; and

 

  B is the aggregate number of ordinary shares in issue immediately after, and as a result of, such consolidation, reclassification/redesignation or subdivision, as the case may be.

Such adjustment shall become effective on the date the consolidation, reclassification/redesignation or subdivision, as the case may be, takes effect.

 

  (ii) If and whenever the Company shall issue any of its ordinary shares credited as fully paid to the Company’s shareholders by way of capitalization of profits or reserves (including any share premium account or capital redemption reserve) other than (1) where any such ordinary shares are or are to be issued instead of the whole or part of a Cash Dividend which the Shareholders would or could otherwise have elected to receive, (2) where the Company’s shareholders may elect to receive a Cash Dividend in lieu of such ordinary shares or (3) where any such ordinary shares are or are expressed to be issued in lieu of a Dividend (whether or not a Cash Dividend equivalent or amount is announced or would otherwise be payable to Shareholders, whether at their election or otherwise), the Floor Price shall be adjusted by multiplying the Floor Price in force immediately prior to such issue by the following fraction:

A

B

where:

 

  A is the aggregate number of ordinary shares in issue immediately before such issue; and

 

  B is the aggregate number of ordinary shares in issue immediately after such issue.

Such adjustment shall become effective on the first date of issue of such ordinary shares.

 

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Annex I

 

(iii)

 

  (A) If and whenever the Company shall pay any Extraordinary Dividend to its shareholders, the Floor Price shall be adjusted by multiplying the Floor Price in force immediately prior to the Effective Date by the following fraction:

A – B

A – C

where:

 

  A is the Current Market Price of one ordinary share on the Effective Date;

 

  B is the portion of the Fair Market Value of the aggregate Extraordinary Dividend attributable to one ordinary share, with such portion being determined by dividing the Fair Market Value of the aggregate Extraordinary Dividend by the number of ordinary shares entitled to receive the relevant Dividend; and

 

  C is an amount equal to:

 

  (a) in the case of an Extraordinary Dividend falling under part (i) of the definition of Extraordinary Dividend, zero; or,

 

  (b) in the case of an Extraordinary Dividend falling under part (ii) of the definition of Extraordinary Dividend, the amount (if any) by which the Reference Amount in respect of the Relevant Year exceeds an amount equal to the aggregate of the Fair Market Values of any previous Cash Dividends (other than any Cash Dividends falling under part (i) of the definition of Extraordinary Dividend) per ordinary share of the Company paid or made in respect of such Relevant Year (where C shall equal zero if such previous Cash Dividends per ordinary share of the Company are equal to, or exceed, the Reference Amount in respect of the Relevant Year). For the avoidance of doubt, “C” shall equal the Reference Amount determined in respect of the Relevant Year where no previous Cash Dividends (other than any Cash Dividends falling under part (i) of the definition of Extraordinary Dividend) per ordinary share of the Company have been paid or made in respect of such Relevant Year.

Such adjustment shall become effective on the Effective Date or, if later, the first date upon which the Fair Market Value of the relevant Extraordinary Dividend can be determined.

Effective Date” means, for purposes of this paragraph (iii)(A), the first date on which the ordinary shares are traded ex-the relevant Cash Dividend on the Relevant Stock Exchange.

 

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Annex I

 

  (B) If and whenever the Company shall pay or make any Non-Cash Dividend to its shareholders, the Floor Price shall be adjusted by multiplying the Floor Price in force immediately prior to the Effective Date by the following fraction:

A – B

    A

where:

 

  A is the Current Market Price of one ordinary share on the Effective Date; and

 

  B is the portion of the Fair Market Value of the aggregate Non-Cash Dividend attributable to one ordinary share, with such portion being determined by dividing the Fair Market Value of the aggregate Non-Cash Dividend by the number of ordinary shares entitled to receive the relevant Non-Cash Dividend (or, in the case of a purchase, redemption or buy back of ordinary shares or any depositary or other receipts or certificates representing ordinary shares by or on behalf of the Company or any member of the Group, by the number of ordinary shares in issue immediately following such purchase, redemption or buy back, and treating as not being in issue any ordinary shares, or any ordinary shares represented by depositary or other receipts or certificates, purchased, redeemed or bought back).

Such adjustment shall become effective on the Effective Date or, if later, the first date upon which the Fair Market Value of the relevant Non-Cash Dividend can be determined as provided herein.

Effective Date” means, for purposes of this paragraph (iii)(B), the first date on which the ordinary shares are traded ex-the relevant Dividend on the Relevant Stock Exchange or, in the case of a purchase, redemption or buy back of ordinary shares or any depositary or other receipts or certificates representing ordinary shares by or on behalf of the Company or any member of the Group, the date on which such purchase, redemption or buy back is made (or, in any such case if later, the first date upon which the Fair Market Value of the relevant Dividend is capable of being determined as provided herein) or in the case of a Spin-Off, the first date on which the ordinary shares are traded ex-the relevant Spin-Off on the Relevant Stock Exchange.

 

  (C) For the purposes of this paragraph (iii), Fair Market Value shall (subject as provided in paragraph (a) of the definition of “Dividend” and in the definition of “Fair Market Value”) be determined as at the Effective Date.

 

  (D) In making any calculations for the purposes of this paragraph (iii), such adjustments (if any) shall be made as an Independent Financial Adviser may determine in good faith to be appropriate to reflect (i) any consolidation or sub-division of any ordinary shares or (ii) the issue of ordinary shares by way of capitalization of profits or reserves (or any like or similar event) or (iii) any increase in the number of ordinary shares in issue in the Relevant Year in question.

 

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Annex I

 

  (iv) If and whenever the Company shall issue ordinary shares to shareholders as a class by way of rights, or the Company or any member of the Group or (at the direction or request or pursuant to any arrangements with the Company or any member of the Group) any other company, person or entity shall issue or grant to shareholders as a class by way of rights, any options, warrants or other rights to subscribe for or purchase or otherwise acquire any ordinary shares, or any securities which by their terms of issue carry (directly or indirectly) rights of conversion into, or exchange or subscription for, or the right to acquire, any ordinary shares (or shall grant any such rights in respect of existing securities so issued), in each case at a price per ordinary share which is less than 95% of the Current Market Price per ordinary share on the Effective Date, the Floor Price shall be adjusted by multiplying the Floor Price in force immediately prior to the Effective Date by the following fraction:

A + B

A + C

where:

 

  A is the number of ordinary shares in issue on the Effective Date;

 

  B is the number of ordinary shares which the aggregate consideration (if any) receivable for the ordinary shares issued by way of rights, or for the securities issued by way of rights, or for the options or warrants or other rights issued or granted by way of rights and for the total number of ordinary shares deliverable on the exercise thereof, would purchase at such Current Market Price per ordinary share; and

 

  C is the number of ordinary shares to be issued or, as the case may be, the maximum number of ordinary shares which may be issued upon exercise of such options, warrants or rights calculated as at the date of issue of such options, warrants or rights or upon conversion or exchange or exercise of rights of subscription or purchase or other rights of acquisition in respect thereof at the initial conversion, exchange, subscription, purchase or acquisition price or rate,

provided that if on the Effective Date such number of ordinary shares is to be determined by reference to the application of a formula or other variable feature or the occurrence of any event at some subsequent time, then for the purposes of this paragraph (iv), “C” shall be determined by the application of such formula or variable feature or as if the relevant event occurs or had occurred as at the Effective Date and as if such conversion, exchange, subscription, purchase or acquisition had taken place on the Effective Date.

Such adjustment shall become effective on the Effective Date.

Effective Date” means, for purposes of this paragraph (iv), the first date on which the ordinary shares are traded ex-rights, ex-options or ex-warrants on the Relevant Stock Exchange.

 

  (v)

If and whenever the Company or any member of the Group or (at the direction or request or pursuant to any arrangements with the Company or any member of the Group) any other company, person or entity shall issue any securities (other than ordinary shares or options, warrants or other rights to subscribe for or purchase or otherwise acquire any

 

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Annex I

 

  ordinary shares or securities which by their terms carry (directly or indirectly) rights of conversion into, or exchange or subscription for, or rights to otherwise acquire, ordinary shares) to shareholders as a class by way of rights or grant to shareholders as a class by way of rights any options, warrants or other rights to subscribe for or purchase or otherwise acquire any securities (other than ordinary shares or options, warrants or other rights to subscribe for or purchase or otherwise acquire ordinary shares or securities which by their term carry (directly or indirectly) rights of conversion into, or exchange or subscription for, rights to otherwise acquire, ordinary shares), the Floor Price shall be adjusted by multiplying the Floor Price in force immediately prior to the Effective Date by the following fraction:

A–B

    A

where:

 

  A is the Current Market Price of one ordinary share on the Effective Date; and

 

  B is the Fair Market Value on the Effective Date of the portion of the rights attributable to one ordinary share.

Such adjustment shall become effective on the Effective Date.

Effective Date” means, for purposes of this paragraph (v), the first date on which the ordinary shares are traded ex-the relevant securities or ex-rights, ex-option or ex-warrants on the Relevant Stock Exchange.

 

  (vi) If and whenever the Company shall issue (otherwise than as mentioned in paragraph (iv) above) wholly for cash or for no consideration any ordinary shares (other than ordinary shares issued on conversion of the Securities or on the exercise of any rights of conversion into, or exchange or subscription for or purchase of, or right to otherwise acquire ordinary shares) or if and whenever the Company or any member of the Group or (at the direction or request or pursuance to any arrangements with the Company or any member of the Group) any other company, person or entity shall issue or grant (otherwise than as mentioned in paragraph (iv) above) wholly for cash or for no consideration any options, warrants or other rights to subscribe for or purchase or otherwise acquire any ordinary shares (other than the Securities or any Further Capital Securities), in each case at a price per ordinary share which is less than 95% of the Current Market Price per ordinary share on the date of the first public announcement of the terms of such issue or grant, the Floor Price shall be adjusted by multiplying the Floor Price in force immediately prior to the Effective Date by the following fraction:

A + B

A + C

where:

 

  A is the number of ordinary shares in issue immediately before the issue of such ordinary shares or the grant of such options, warrants or rights;

 

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Annex I

 

  B is the number of ordinary shares which the aggregate consideration (if any) receivable for the issue of such ordinary shares or, as the case may be, for the ordinary shares to be issued or otherwise made available upon the exercise of any such options, warrants or rights, would purchase at such Current Market Price per ordinary share; and

 

  C is the number of ordinary shares to be issued pursuant to such issue of such ordinary shares or, as the case may be, the maximum number of ordinary shares which may be issued upon exercise of such options, warrants or rights calculated as at the date of issue of such options, warrants or rights,

provided that if on the Effective Date such number of ordinary shares is to be determined by reference to the application of a formula or other variable feature or the occurrence of any event at some subsequent time, then for the purposes of this paragraph (vi), “C” shall be determined by the application of such formula or variable feature or as if the relevant event occurs or had occurred as at the Effective Date and as if such conversion, exchange, subscription, purchase or acquisition had taken place on the Effective Date.

Such adjustment shall become effective on the Effective Date.

Effective Date” means, for purposes of this paragraph (vi), the date of issue of such ordinary shares or, as the case may be, the grant of such options, warrants or rights.

 

  (vii) If and whenever the Company or any member of the Group or (at the direction or request of or pursuant to any arrangements with the Company or any member of the Group) any other company, person or entity (otherwise than as mentioned in paragraphs (iv) through (vi) above) shall issue wholly for cash or for no consideration any securities (other than the Securities or any Further Capital Securities) which by their terms of issue carry (directly or indirectly) rights of conversion into, or exchange or subscription for, purchase of, or rights to otherwise acquire, ordinary shares ordinary shares (or shall grant any such rights in respect of existing securities so issued) or securities which by their terms might be reclassified/redesignated as ordinary shares, and the price per ordinary share upon conversion, exchange, subscription, purchase, acquisition or redesignation is less than 95% of the Current Market Price per ordinary share on the date of the first public announcement of the terms of issue of such securities (or the terms of such grant), the Floor Price shall be adjusted by multiplying the Floor Price in force immediately prior to the Effective Date by the following fraction:

A + B

A + C

where:

 

  A is the number of ordinary shares in issue immediately before such issue or grant (but where the relevant securities carry rights of conversion into or rights of exchange or subscription for, purchase of, or rights to otherwise acquire ordinary shares which have been issued, purchased or acquired by the Company or any member of the Group (or at the direction or request or pursuant to any arrangements with the Company or any member of the Group) for the purposes of or in connection with such issue, less the number of such ordinary shares so issued, purchased or acquired);

 

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Annex I

 

  B is the number of ordinary shares which the aggregate consideration (if any) receivable for the ordinary shares to be issued or otherwise made available upon conversion or exchange or upon exercise of the right of subscription, purchase or acquisition attached to such securities or, as the case may be, for the ordinary shares to be issued or to arise from any such reclassification/redesignation would purchase at such Current Market Price per ordinary share; and

 

  C is the maximum number of ordinary shares to be issued or otherwise made available upon conversion or exchange of such securities or upon the exercise of such right of subscription attached thereto at the initial conversion, exchange, subscription, purchase or acquisition price or rate or, as the case may be, the maximum number of ordinary shares which may be issued or arise from any such reclassification/redesignation;

provided that if on the Effective Date such number of ordinary shares is to be determined by reference to the application of a formula or other variable feature or the occurrence of any event at some subsequent time (which may be when such securities are converted or exchanged or rights of subscription, purchase or acquisition are exercised or, as the case may be, such securities are reclassified/redesignated or at such other time as may be provided), then for the purposes of this paragraph (vii), “C” shall be determined by the application of such formula or variable feature or as if the relevant event occurs or had occurred as at the Effective Date and as if such conversion, exchange, subscription, purchase or acquisition or, as the case may be, reclassification/redesignation had taken place on the Effective Date.

Such adjustment shall become effective on the Effective Date.

Effective Date” means, for purposes of this paragraph (vii), the date of issue of such Securities or, as the case may be, the grant of such rights.

 

  (viii) If and whenever there shall be any modification of the rights of conversion, exchange, subscription, purchase or acquisition attaching to any securities (other than the Securities or any Further Capital Securities) as are mentioned in paragraph (vii) above (other than in accordance with the terms (including terms as to adjustment) applicable to such securities upon issue) so that following such modification the consideration per ordinary share has been reduced and is less than 95% of the Current Market Price per ordinary share on the date of the first public announcement of the proposals for such modification, the Floor Price shall be adjusted by multiplying the Floor Price in force immediately prior to the Effective Date by the following fraction:

A + B

A + C

where:

 

  A is the number of ordinary shares in issue immediately before such modification (but where the relevant securities carry rights of conversion into or rights of exchange or subscription for, or purchase or acquisition of, ordinary shares which have been issued, purchased or acquired by the Company or any member of the Group (or at the direction or request or pursuant to any arrangements with the Company or any member of the Group) for the purposes of or in connection with such securities, less the number of such ordinary shares so issued, purchased or acquired);

 

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Annex I

 

  B is the number of ordinary shares which the aggregate consideration (if any) receivable for the ordinary shares to be issued or otherwise made available upon conversion or exchange or upon exercise of the right of subscription, purchase or acquisition attached to the securities so modified would purchase at such Current Market Price per ordinary share or, if lower, the existing conversion, exchange, subscription, purchase or acquisition price or rate of such securities; and

 

  C is the maximum number of ordinary shares which may be issued or otherwise made available upon conversion or exchange of such securities or upon the exercise of such rights of subscription, purchase or acquisition attached thereto at the modified conversion, exchange, subscription, purchase or acquisition price or rate but giving credit in such manner as an Independent Financial Adviser in good faith shall consider appropriate for any previous adjustment under this paragraph (viii) or paragraph (vii) above;

provided that if on the Effective Date such number of ordinary shares is to be determined by reference to the application of a formula or other variable feature or the occurrence of any event at some subsequent time (which may be when such securities are converted or exchanged or rights of subscription, purchase or acquisition are exercised or at such other time as may be provided) then for the purposes of this paragraph (viii), “C” shall be determined by the application of such formula or variable feature or as if the relevant event occurs or had occurred as at the Effective Date and as if such conversion, exchange, subscription, purchase or acquisition had taken place on the Effective Date.

Such adjustment shall become effective on the Effective Date.

Effective Date” means, for purposes of this paragraph (viii), the date of modification of the rights of conversion, exchange, subscription, purchase or acquisition attaching to such securities.

 

  (ix) If and whenever the Company or any member of the Group or (at the direction or request of or pursuant to any arrangements with the Company or any member of the Group) any other company, person or entity shall offer any securities in connection with which shareholders as a class are entitled to participate in arrangements whereby such securities may be acquired by them (except where the Floor Price is required to be adjusted under paragraphs (ii) through (vi) above (or would be required to be so adjusted if the relevant issue or grant was at less than 95% of the Current Market Price per ordinary share on the relevant dealing day under paragraph (v) above)) the Floor Price shall be adjusted by multiplying the Floor Price in force immediately before the Effective Date by the following fraction:

A – B

    A

where:

 

  A is the Current Market Price of one ordinary share on the Effective Date; and

 

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Annex I

 

  B is the Fair Market Value on the Effective Date of the portion of the relevant offer attributable to one ordinary share.

Such adjustment shall become effective on the Effective Date.

Effective Date” means, for purposes of this paragraph (ix), the first date on which the ordinary shares are traded ex-rights on the Relevant Stock Exchange.

 

  (x) If the Company determines that a reduction to the Floor Price should be made for whatever reason, the Floor Price will be reduced (either generally or for a specified period as notified to Holders of the Securities) in such manner and with effect from such date as the Company shall determine and notify to the Holders of the Securities.

For the purpose of any calculation of the consideration receivable or price pursuant to paragraphs (iv) and (vi) – (viii), the following provisions shall apply:

 

  (i) the aggregate consideration receivable or price for ordinary shares issued for cash shall be the amount of such cash;

 

  (ii) (x) the aggregate consideration receivable or price for ordinary shares to be issued or otherwise made available upon the conversion or exchange of any securities shall be deemed to be the consideration or price received or receivable for any such securities and (y) the aggregate consideration receivable or price for ordinary shares to be issued or otherwise made available upon the exercise of rights of subscription attached to any securities or upon the exercise of any options, warrants or rights shall be deemed to be that part (which may be the whole) of the consideration or price received or receivable for such securities or, as the case may be, for such options, warrants or rights which are attributed by the Company to such rights of subscription or, as the case may be, such options, warrants or rights or, if no part of such consideration or price is so attributed, the Fair Market Value of such rights of subscription or, as the case may be, such options, warrants or rights as at the applicable Effective Date as described in paragraphs (iv) and (vi) – (viii) above, as the case may be plus in the case of each of (x) and (y) above, the additional minimum consideration receivable or price (if any) upon the conversion or exchange of such securities, or upon the exercise of such rights or subscription attached thereto or, as the case may be, upon exercise of such options, warrants or rights and (z) the consideration receivable or price per ordinary share upon the conversion or exchange of, or upon the exercise of such rights of subscription attached to, such securities or, as the case may be, upon the exercise of such options, warrants or rights shall be the aggregate consideration or price referred to in (x) or (y) above (as the case may be) divided by the number of ordinary shares to be issued upon such conversion or exchange or exercise at the initial conversion, exchange or subscription price or rate;

 

  (iii) if the consideration or price determined pursuant to clause (i) or (ii) above (or any component thereof) shall be expressed in a currency other than the Relevant Currency, it shall be converted into the Relevant Currency at the Prevailing Rate on the relevant Effective Date (in the case of clause (i) above) or the relevant date of first public announcement (in the case of clause (ii) above);

 

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Annex I

 

  (iv) in determining the consideration or price pursuant to the above, no deduction shall be made for any commissions or fees (howsoever described) or any expenses paid or incurred for any underwriting, placing or management of the issue of the relevant ordinary shares or securities or options, warrants or rights, or otherwise in connection therewith; and

 

  (v) the consideration or price shall be determined as provided above on the basis of the consideration or price received, receivable, paid or payable, regardless of whether all or part thereof is received, receivable, paid or payable by or to the Company or another entity

Notwithstanding the foregoing provisions:

 

  (A) where the events or circumstances giving rise to any adjustment pursuant to paragraphs (i) – (x) above have already resulted or will result in an adjustment to the Floor Price or where the events or circumstances giving rise to any adjustment arise by virtue of any other events or circumstances which have already given or will give rise to an adjustment to the Floor Price or where more than one event which gives rise to an adjustment to the Floor Price occurs within such a short period of time that, in the opinion of the Company, a modification to the operation of the adjustment provisions is required to give the intended result, such modification shall be made to the operation of the adjustment provisions as may be determined in good faith by an Independent Financial Adviser to be in its opinion appropriate to give the intended result;

 

  (B) such modification shall be made to the operation of the Indenture as may be determined in good faith by an Independent Financial Adviser to be in its opinion appropriate (i) to ensure that an adjustment to the Floor Price or the economic effect thereof shall not be taken into account more than once, (ii) to ensure that the economic effect of a Dividend is not taken into account more than once and (iii) to reflect a redenomination of the issued ordinary shares for the time being into a new currency;

 

  (C) for the avoidance of doubt, the issue of ordinary shares following a Conversion shall not result in an adjustment to the Floor Price;

 

  (D) no adjustment shall be made to the Floor Price where ordinary shares or any other securities (including rights, warrants and options) are issued, offered, exercised, allotted, purchased, appropriated, modified or granted to, or for the benefit of, employees or former employees (including directors holding or formerly holding executive office or the personal service company of any such person) or their spouses or relatives, in each case, of the Company or any of its Subsidiaries or any associated company or to a trustee or trustees to be held for the benefit of any such person, in any such case pursuant to any share or option scheme;

Record Date

If the record date in respect of any consolidation, reclassification/redesignation or sub-division as is mentioned in paragraph (i) under “— Adjustment of Floor Price” above, or the record date or other due date for the establishment of entitlement for any such issue, distribution, grant or offer (as the case may be) as is mentioned in paragraph (ii) – (v) or (ix) under “— Adjustment of Floor Price” above, or the date of the first public announcement of the terms of any such issue or grant as is mentioned in paragraphs (vi) and (vii) under “— Adjustment of Floor Price” above or of the terms of any such modification as is mentioned in paragraph (viii) under “— Adjustment of Floor Price” above, falls after

 

I-10


Annex I

 

the date on which the Conversion Notice is given in relation to the Conversion but before such ordinary shares are issued, then the Company shall procure the execution of the corresponding adjustment mechanism under “— Adjustment of Floor Price” above so that the calculation of the number of Conversion Shares to be issued and delivered to the Conversion Shares Depository takes into account the Floor Price as so adjusted.

The Company shall not issue any additional Conversion Shares if the Conversion occurs after the record date in respect of any consolidation, reclassification or sub-division as is mentioned in paragraph (i) of “— Adjustment of Conversion Price and Conversion Shares Offer Price” above, or the record date or other due date for the establishment of entitlement for any such issue, distribution, grant or offer (as the case may be) as is mentioned in paragraph (ii) – (v) or (ix) under “— Adjustment of Floor Price” above, or the date of the first public announcement of the terms of any such issue or grant as is mentioned in paragraphs (vi) and (vii) under “— Adjustment of Floor Price” above or of the terms of any such modification as is mentioned in paragraph (viii) under “— Adjustment of Floor Price” above, but before the relevant adjustment to the relevant Price becomes effective under such section.

Conversion Calculation Agent and Independent Financial Adviser

So long as any Securities are outstanding, there shall at all times be a Conversion Calculation Agent, which may be the Company or another person appointed by the Company to serve in such capacity, who shall be responsible in consultation with the Company for the calculation of all adjustments to the Floor Price and all related determinations required to be made in connection therewith. All such calculations and determinations performed by the Conversion Calculation Agent shall be conclusive and binding on the Holders and beneficial owners of the Securities or any interest therein, save in the case of bad faith or manifest error. If any provision described herein under “Anti-Dilution Provisions” at any time calls for any calculation or determination to be made by an Independent Financial Adviser, which may include the Conversion Calculation Agent appointed by the Company to act in such Independent Financial Adviser capacity, if the person then serving as Conversion Calculation Agent is not wholly independent of the Company, the Company shall use commercially reasonable efforts to appoint an Independent Financial Adviser which is wholly independent of the Company to make such calculation or determination. A written opinion of such Independent Financial Adviser in respect of such calculation or determination shall be conclusive and binding on the Company and the Holders and Beneficial Owners of the Securities or any interest therein, save in the case of manifest error. The Company has appointed Conv-Ex Advisors Limited as the initial Conversion Calculation Agent. The Company may change the Conversion Calculation Agent at any time without prior notice to any Holder or Beneficial Owner of the Securities.

The Conversion Calculation Agent (if not the Company) shall act solely upon request from, and solely as agent of, the Company and will not thereby assume any obligations towards or relationship of agency or trust with, and it shall not be liable and shall incur no liability as against, the Holders of Securities.

Rounding Down and Notice of Adjustment to the Floor Price

On any adjustment, if the resultant Floor Price is not an integral multiple of $0.0001, it shall be rounded down to the nearest whole multiple of $0.0001. No adjustment shall be made to the Floor Price where such adjustment (rounded down if applicable) would be less than one per cent. of the Floor Price then in effect. Any adjustment not required to be made, and/or any amount by which the Floor Price has been rounded down, shall be carried forward and taken into account in any subsequent adjustment, and such subsequent adjustment shall be made on the basis that the adjustment not required to be made had been made at the relevant time and/or, as the case may be, that the relevant rounding down had not been made.

 

I-11


Annex I

 

Notice of any adjustments to the Floor Price shall be given by the Company to Holders of the Securities via DTC (or, if the Securities are held in definitive form, via the Trustee) promptly after the determination thereof and in accordance with Sections 1.05 and 1.06 of the Base Indenture.

Definitions

Unless otherwise provided, for the purposes of this Annex I:

Applicable Dividend” has the meaning set forth in the definition of “Extraordinary Dividend” below.

Cash Dividend “ means (i) any Dividend which is to be paid or made in cash (in whatever currency), but other than any Dividend falling within paragraph (b) of the definition of “Spin-Off,” and (ii) any Dividend determined to be a Cash Dividend pursuant to paragraph (a) of the definition of “Dividend,” provided that a Dividend falling within paragraph (c) or (d) of the definition of “Dividend” shall be treated as being a Non-Cash Dividend.

Current Market Price” means, in respect of an ordinary share at a particular date, the average of the daily Volume Weighted Average Price of an ordinary share on each of the five consecutive dealing days ending on the dealing day immediately preceding such date; provided that, if at any time during the said five-dealing-day period the Volume Weighted Average Price shall have been based on a price ex-Dividend (or ex- any other entitlement) and during some other part of that period the Volume Weighted Average Price shall have been based on a price cum-Dividend (or cum- any other entitlement), then:

 

  (i) if the ordinary shares to be issued and delivered do not rank for the Dividend (or entitlement) in question, the Volume Weighted Average Price on the dates on which the ordinary shares shall have been based on a price cum-Dividend (or cum- any other entitlement) shall, for the purposes of this definition, be deemed to be the amount thereof reduced by an amount equal to the Fair Market Value of any such Dividend or entitlement per ordinary share as at the date of the first public announcement relating to such Dividend or entitlement; or

 

  (ii) if the ordinary shares to be issued and delivered do rank for the Dividend (or entitlement) in question, the Volume Weighted Average Price on the dates on which the ordinary shares shall have been based on a price ex-Dividend (or ex- any other entitlement) shall, for the purposes of this definition, be deemed to be the amount thereof increased by an amount equal to the Fair Market Value of such Dividend or entitlement per ordinary share as at the date of the first public announcement relating to such Dividend or entitlement,

and provided further that, if on each of the said five dealing days the Volume Weighted Average Price shall have been based on a price cum-Dividend (or cum- any other entitlement) in respect of a Dividend (or other entitlement) which has been declared or announced but the ordinary shares to be issued and delivered do not rank for that Dividend (or other entitlement), the Volume Weighted Average Price on each of such dates shall, for the purposes of this definition, be deemed to be the amount thereof reduced by an amount equal to the Fair Market Value of any such Dividend or entitlement per ordinary share as at the date of first public announcement relating to such Dividend or entitlement, and provided further that, if the Volume Weighted Average Price of an ordinary share is not available on one or more of the said five dealing days (disregarding for this purpose the proviso to the definition of Volume Weighted Average Price), then the average of such Volume Weighted Average Prices which are available in that five-dealing-day period shall be used (subject to a minimum of two such prices) and if only one, or no, such Volume Weighted Average Price is available in the relevant period, the Current Market Price shall be determined in good faith by an Independent Financial Adviser.

 

I-12


Annex I

 

A “dealing day” means a day on which the Relevant Stock Exchange or relevant stock exchange or securities market is open for business and on which ordinary shares, securities, Spin-Off Securities, options, warrants or other rights (as the case may be) may be dealt in (other than a day on which the Relevant Stock Exchange or relevant stock exchange or securities market is scheduled to or does close prior to its regular weekday closing time).

Depositary Receipts” means depositary receipts issued by the Trust representing ordinary shares in the capital of the Company, with each Depositary Receipt representing one ordinary share as at the Issue Date.

Dividend” means any dividend or distribution to holders of ordinary shares (including a Spin-Off) whether of cash, assets or other property (and for these purposes a distribution of assets includes without limitation an issue of ordinary shares or other securities credited as fully or partly paid up by way of capitalization of profits or reserves), and however described and whether payable out of share premium account, profits, retained earnings or any other capital or revenue reserve or account, and including a distribution or payment to holders of ordinary shares upon or in connection with a reduction of capital provided that:

 

  (a) where:

 

  (i) a Dividend in cash is announced which may at the election of a shareholder or shareholders of the Company be satisfied by the issue or delivery of ordinary shares or other property or assets, or where a capitalization of profits or reserves is announced which may at the election of a shareholder or shareholders be satisfied by the payment of cash, then the Dividend in question shall be treated as a Cash Dividend of an amount equal to the greater of (A) the Fair Market Value of such cash amount and (B) the Current Market Price of such ordinary shares as at the first date on which the ordinary shares are traded ex-the relevant Dividend on the Relevant Stock Exchange or, as the case may be, the record date or other due date for establishment of entitlement in respect of the relevant capitalization or, as the case may be, the Fair Market Value of such other property or assets as at the date of the first public announcement of such Dividend or capitalization or, in any such case, if later, the date on which the number of ordinary shares (or amount of such other property or assets, as the case may be) which may be issued and delivered is determined; or

 

  (ii) there shall be any issue of ordinary shares by way of capitalization of profits or reserves (including any share premium account or capital redemption reserve) where such issue is or is expressed to be in lieu of a Dividend (whether or not a Cash Dividend equivalent or amount is announced), or a Dividend in cash that is to be satisfied by the issue or delivery of ordinary shares or other property or assets, the capitalization or Dividend in question shall be treated as a Cash Dividend of an amount equal to the Current Market Price of such ordinary shares or, as the case may be, the Fair Market Value of such other property or assets, as at the first date on which the ordinary shares are traded ex-the relevant capitalization or, as the case may be, ex-the relevant Dividend on the Relevant Stock Exchange or, if later, the date on which the number of ordinary shares to be issued and delivered is determined;

 

I-13


Annex I

 

  (b) any issue of ordinary shares as described in paragraph (i) or (ii) under “— Adjustment of Floor Price” above shall be disregarded;

 

  (c) a purchase or redemption or buy back of share capital of the Company by or on behalf of the Company in accordance with any general authority for such purchases or buy backs approved by a general meeting of shareholders and otherwise in accordance with the limitations prescribed under Dutch law for dealings generally by a company in its own shares shall not constitute a Dividend and any other purchase or redemption or buy back of share capital of the Company by or on behalf of the Company or any member of the Group shall not constitute a Dividend unless, in the case of a purchase or redemption or buy back of ordinary shares by or on behalf of the Company or any member of the Group, the weighted average price per ordinary share (before expenses) on any one day (a “Specified Share Day”) in respect of such purchases or redemptions or buy backs (translated, if not in the Relevant Currency, into the Relevant Currency at the Prevailing Rate on such day) exceeds by more than 5% the average of the daily Volume Weighted Average Price of an ordinary shares on the 5 dealing days immediately preceding the Specified Share Day or, where an announcement (excluding, for the avoidance of doubt for these purposes, any general authority for such purchases, redemptions or buy backs approved by a general meeting of shareholders or any notice convening such a meeting of shareholders) has been made of the intention to purchase, redeem or buy back ordinary shares at some future date at a specified price or where a tender offer is made, on the 5 dealing days immediately preceding the date of such announcement or the date of first public announcement of such tender offer (and regardless of whether or not a price per ordinary share, a minimum price per ordinary share or a price range or a formula for the determination thereof is or is not announced at such time), as the case may be, in which case such purchase, redemption or buy back shall be deemed to constitute a Dividend in the Relevant Currency in an amount equal to the amount by which the aggregate price paid (before expenses) in respect of such ordinary shares purchased, redeemed or bought back by the Company or, as the case may be, any member of the Group (translated where appropriate into the Relevant Currency as provided above) exceeds the product of (i) 105% of the daily Volume Weighted Average Price of an ordinary share determined as aforesaid and (ii) the number of ordinary shares so purchased, redeemed or bought back;

 

  (d) if the Company or any member of the Group shall purchase, redeem or buy back any depositary or other receipts or certificates representing ordinary shares, the provisions of paragraph c) above shall be applied in respect thereof in such manner and with such modifications (if any) as shall be determined in good faith by an Independent Financial Adviser; and

 

  (e) where a dividend or distribution is paid or made to shareholders pursuant to any plan implemented by the Company for the purpose of enabling shareholders to elect, or which may require shareholders, to receive dividends or distributions in respect of the ordinary shares held by them from a person other than (or in addition to) the Company, such dividend or distribution shall for the purposes hereof be treated as a dividend or distribution made or paid to shareholders by the Company, and the foregoing provisions of this definition, and the provisions hereof, including references to the Company paying or making a dividend, shall be construed accordingly.

 

I-14


Annex I

 

EEA Regulated Market” means a market as defined by Article 4.1(14) of Directive 2004/39/EC of the European Parliament and of the Council on markets on financial instruments, as the same may be amended from time to time.

Extraordinary Dividend” means (i) any Cash Dividend that is expressly declared by the Company to be a capital distribution, extraordinary dividend, extraordinary distribution, special dividend, special distribution or return of value to shareholders (including any distribution made as a result of any capital reduction), in which case the Extraordinary Dividend shall be such Cash Dividend, or (ii) any Cash Dividend (other than a Cash Dividend falling under clause (i) of this definition) (the “Applicable Dividend”) paid or made in respect of the Relevant Year if (A) the Fair Market Value of the Applicable Dividend per ordinary share or (B) the sum of (I) the Fair Market Value of the Applicable Dividend per ordinary share and (II) an amount equal to the aggregate of the Fair Market Value or Fair Market Values of any other Cash Dividend or Cash Dividends (other than a Cash Dividend or Cash Dividends falling under clause (i) of this definition) per ordinary share paid or made in respect of the Relevant Year (other than any Cash Dividend or part thereof previously determined under clause (ii) of this definition to be an Extraordinary Dividend paid or made in respect of such Relevant Year), exceeds the Reference Amount, and in that case the Extraordinary Dividend shall be such Applicable Dividend, provided that any Cash Dividend (other than a Cash Dividend falling under part (i) of this definition) which is not expressed to be in respect of a given financial year of the Company, shall be deemed to be a Cash Dividend in respect of the financial year in which it is made or paid.

Fair Market Value” means, with respect to any property on any date, (a) in the case of a Cash Dividend, the amount of such Cash Dividend; (b) in the case of any other cash amount, the amount of such cash; (c) in the case of securities (including ordinary shares), Spin-Off Securities, options, warrants or other rights or assets publicly traded on a stock exchange or securities market of adequate liquidity (as determined by the Conversion Calculation Agent in good faith), (i) in the case of ordinary shares or Spin-Off Securities, the arithmetic mean of the daily Volume Weighted Average Prices of such ordinary shares or Spin-Off Securities and (ii) in the case of securities (other than ordinary shares or Spin-Off Securities), options, warrants or other rights or assets of the kind referred to above, the arithmetic mean of the daily closing prices of such securities, options, warrants or other rights or assets, in the case of both (i) and (ii) above, during the period of 5 dealing days on the principal stock exchange or securities market on which such securities, Spin-Off Securities, options, warrants or other rights or assets are then listed, admitted to trading or quoted or dealt in, commencing on such date (or, if later, the first such dealing day such securities, Spin-Off Securities, options, warrants or other rights or assets are publicly traded, quoted or dealt in on such stock exchange or securities market) or such shorter period as such securities, Spin-Off Securities, options, warrants or other rights or assets are publicly traded, quoted or dealt in on such stock exchange or securities market; and (d) in the case of securities (including ordinary shares), Spin-Off Securities, options, warrants or other rights or assets not publicly traded on a stock exchange or securities market of adequate liquidity (as aforesaid), the fair market value of such securities, Spin-Off Securities, options, warrants or other rights or assets as determined by an Independent Financial Adviser in good faith, on the basis of a commonly accepted market valuation method and taking account of such factors as it considers appropriate, including the market price per ordinary share, the dividend yield of an ordinary share, the volatility of such market price, prevailing interest rates and the terms of such securities, Spin-Off Securities, options, warrants or other rights or assets, including as to the expiry date and exercise price (if any) thereof. Such amounts shall, in the case of (a) above, be translated into the Relevant Currency (if such Cash Dividend is declared or paid or payable in a currency other than the Relevant Currency) at the rate of exchange used to determine the amount payable to shareholders who were paid or are to be paid or are entitled to be paid the Cash Dividend in the Relevant Currency and, in any other case, shall be translated into the Relevant Currency (if expressed in a currency other than the Relevant Currency) at the Prevailing Rate on that date. In addition, in the case of (a) and (b) above, the Fair Market Value shall be determined on a gross basis, disregarding any withholding or deduction required to be made for or on account of tax, and disregarding any associated tax credit.

 

I-15


Annex I

 

Further Capital Securities” means any securities issued after the Issue Date which are contingently convertible into ordinary shares pursuant to their terms in the event that the Group CET1 Ratio is less than a specified percentage.

Independent Financial Adviser” means an independent financial institution of international repute or independent financial adviser with appropriate expertise (which may include the initial Conversion Calculation Agent) appointed by the Company at its own expense.

Non-Cash Dividend” means any Dividend which is not a Cash Dividend, and shall include a Spin-Off.

a “person” includes any individual, company, corporation, firm, partnership, joint venture, undertaking, association, organization, trust, state or agency of a state (in each case whether or not being a separate legal entity) or other legal entity.

Prevailing Rate” means, in respect of any pair of currencies on any calendar day, the spot rate of exchange between the relevant currencies prevailing as at or about 12:00 pm, London time, on that date as appearing on or derived from the Relevant Page or, if such a rate cannot be determined at such time, the rate prevailing as at or about 12:00 pm, London time, on the immediately preceding day on which such rate can be so determined or, if such rate cannot be so determined by reference to the Relevant Page, the rate determined in such other manner as an Independent Financial Adviser shall in good faith prescribe.

Regulated Market” means an EEA Regulated Market or another regulated, regularly operating, recognized stock exchange or securities market in an OECD member state.

Reference Amount” means, either:

 

  (a) where (i) the Applicable Dividend in respect of such Relevant Year is declared after the date on which the Group’s audited consolidated financial statements in respect of the Relevant Year are available (the “Results Availability Date”) and (ii) no other Cash Dividends have been declared in respect of such Relevant Year prior to the Results Availability Date: 100% of the Group’s net result from continuing and discontinued operations (before minority interests) per ordinary share in respect of such Relevant Year; or,

 

  (b) in any other case: the greater of (i) 100% of the Group’s net results from continuing and discontinued operations (before minority interests) per ordinary share in respect of the Relevant Year and (ii) 100% of the Group’s net results from continuing and discontinued operations (before minority interests) per ordinary share in respect of the most recently completed financial year for which the Group’s audited consolidated financial statements are available on the date on which the first Cash Dividend in respect of the Relevant Year is declared (and such determination shall be made promptly after the Results Availability Date), except where a Conversion Notice is delivered before such Results Availability Date, in which case the Reference Amount shall be equal to the amount determined pursuant to part (ii) of this paragraph, and in any such case, the Floor Price for the purpose of such Conversion Notice shall be determined on the basis of an Extraordinary Dividend (if any) determined on the basis of a Reference Amount determined accordingly.

 

I-16


Annex I

 

Relevant Currency” euro or such other currency in which the ordinary shares are quoted or dealt in on the Relevant Stock Exchange at the relevant time or for the purposes of the relevant calculation or determination.

Relevant Page” means the relevant page on Bloomberg or such other information service provider that displays the relevant information, as determined by the Conversion Calculation Agent.

Relevant Shares” means ordinary share capital of the Approved Entity that constitutes equity share capital or the equivalent (or depository or other receipts representing the same) which is listed and admitted to trading on a Regulated Market. In relation to a Conversion in respect of which the Conversion Date falls on or after the New Conversion Condition Effective Dare, references herein to “Conversion Shares” shall be deemed to be references to “Approved Entity Shares.”

Relevant Year” means, in respect of any Cash Dividend, the financial year of the Company in respect of which such Cash Dividend is being paid or made, or deemed to be paid or made, as the case may be.

shareholders “ means the holders of ordinary shares.

Spin-Off “ means (a) a distribution of Spin-Off Securities by the Company to shareholders as a class; or (b) any issue, transfer or delivery of any property or assets (including cash or shares or other securities of or in or issued or allotted by any entity) by any entity (other than the Company) to shareholders as a class, pursuant to any arrangements with the Company or any member of the Group.

Spin-Off Securities” means equity share capital of an entity other than the Company or options, warrants or other rights to subscribe for or purchase equity share capital of an entity other than the Company.

Subsidiary” means each subsidiary as defined in Section 2:24a of the Dutch Civil Code for the time being of the Company.

Volume Weighted Average Price” means, in respect of an ordinary share or security or Spin-Off Security on any dealing day, the volume-weighted average price of an ordinary share (or security or Spin-Off Security, as applicable), published by or derived (in the case of an ordinary share) from the relevant Bloomberg page INGA NA <Equity> HP (setting “Weighted Average Line” or any successor setting) or (in the case of a security (other than ordinary shares) or Spin-Off Security) from the equivalent Bloomberg page for such security or Spin-Off Security in respect of the principal stock exchange or securities market on which such securities or Spin-Off Securities are then listed or quoted or dealt in, if any, or such other source as shall be determined in good faith to be appropriate by an Independent Financial Adviser on such dealing day; provided that if on any such dealing day such price is not available or cannot otherwise be determined as provided above, the Volume Weighted Average Price of an ordinary share, security or Spin-Off Security, as the case may be, in respect of such dealing day shall be the Volume Weighted Average Price, determined as provided above, on the immediately preceding dealing day on which the same can be so determined or determined as an Independent Financial Adviser might otherwise determine in good faith to be appropriate.

If the ordinary shares are represented by Depositary Receipts and only the Depositary Receipts are admitted to listing on the Relevant Stock Exchange, references herein shall mean or include, as the case may be and mutatis mutandis to reflect the fact that the Depositary Receipts represent underlying ordinary shares, such Depositary Receipts, including without limitation that such adjustments shall be made to the Conversion Price or Floor Price as may be determined by an Independent Financial Adviser to be appropriate to reflect any change in the number of ordinary shares represented by or underlying a Depositary Receipt.

 

I-17


Annex I

 

References to any act or statute or any provision of any act or statute shall be deemed also to refer to any statutory modification or re-enactment thereof or any statutory instrument, order or regulation made thereunder or under such modification or re-enactment.

In making any calculation or determination of Current Market Price or Volume Weighted Average Price, such adjustments (if any) shall be made as an Independent Financial Adviser determines in good faith to be appropriate to reflect any consolidation or sub-division of the ordinary shares or any issue of ordinary shares by way of capitalization of profits or reserves, or any like or similar event.

References to any issue or offer or grant to shareholders “as a class” or “by way of rights” shall be taken to be references to an issue or offer or grant to all or substantially all shareholders, as the case may be, other than shareholders, as the case may be, to whom, by reason of the laws of any territory or requirements of any recognized regulatory body or any other stock exchange or securities market in any territory or in connection with fractional entitlements, it is determined not to make such issue or offer or grant.

 

I-18


Exhibit A

Form of Security

[THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.

BY PURCHASING THIS SECURITY, IN THE ABSENCE OF A CHANGE IN LAW OR AN ADMINISTRATIVE OR JUDICIAL RULING TO THE CONTRARY, THE HOLDER AGREES TO CHARACTERIZE THIS SECURITY FOR ALL U.S. FEDERAL INCOME TAX PURPOSES AS PROVIDED ON THE FACE OF THIS SECURITY.]

ING GROEP N.V.

6.000% Perpetual Additional Tier 1 Contingent Convertible Capital Securities

 

No.        $                   
  CUSIP NO. 456837AE3   
  ISIN NO. US456837AE31   

ING GROEP N.V., a holding company duly organized and existing under the laws of The Netherlands (herein called the “Company”, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to                     , or registered assigns, the principal sum of $                     (                      Dollars), if and to the extent due, and to pay interest thereon, if any, in accordance with the terms hereof and the Indenture. This Security shall have no fixed maturity or fixed redemption date. From and including the Issue Date to but excluding April 16, 2020, the interest rate on this Security shall be 6.000% per annum. From and including April 16, 2020 and each fifth anniversary date thereafter, commencing April 16, 2020 (each such date, a “Reset Date”) to (but excluding) the next following Reset Date, the applicable per annum rate shall be equal to the sum of the applicable Mid-Market Swap Rate on the Reset Determination Date and 4.445%. Subject to the provisions on the reverse of this Security relating to cancellation and deemed cancellation of interest and to Sections 2.03 and 2.04 of the First Supplemental Indenture, interest, if any, shall be payable semiannually in arrear on April 16 and October 16 of each year (each, an “Interest Payment Date”), commencing on October 16, 2015, and shall be calculated on the basis of a year of 360 days consisting of twelve (12) months of thirty (30) days each and, in the case of an incomplete month, the actual number of days elapsed.

The interest, if any, so payable, and paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest which shall be the Business Day immediately preceding each Interest Payment Date (whether or not a Business Day).

Payment of the principal of and interest on this Security will be made at the office or agency of the Company maintained for that purpose in The City of New York in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that at the option of the Company payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register. If any payment of principal of or interest on this Security is scheduled to be made on a day that is not a Business Day, payment may be made on the following day without adjustment.


This Security shall be governed by and construed in accordance with the laws of the State of New York, except for the subordination and waiver of set-off provisions referred to herein and in Sections 7.01 and 7.02 of the First Supplemental Indenture, which are governed by, and construed in accordance with, Dutch law.

Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

THIS SECURITY IS NOT A DEPOSIT AND IS NOT INSURED BY THE UNITED STATES FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENT AGENCY OF THE UNITED STATES OR THE NETHERLANDS.

Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof, directly or through an Authenticating Agent, by manual signature of an authorized signatory, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.

 

A-2


IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.

 

Date: ING GROEP N.V.
By:

 

Name:
Title:
By:

 

Name:
Title:

Trustee’s Certificate of Authentication

This is one of the Securities of the series designated herein referred to in the Indenture.

 

Date:

THE BANK OF NEW YORK MELLON,

            LONDON BRANCH

            As Trustee
By:

 

Authorized Signatory

 

A-3


(Reverse of Security)

This Security is one of a duly authorized issue of securities of the Company (herein called the “Securities” and each, a “Security”) issued and to be issued in one or more series under and governed by the Capital Securities Indenture, dated as of April 16, 2015 (herein called the “Base Indenture”), between the Company and The Bank of New York Mellon, London Branch, as Trustee (herein called the “Trustee,” which term includes any successor trustee under the Base Indenture), as supplemented and amended by the First Supplemental Indenture, dated as of April 16, 2015 (the “First Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), and reference is hereby made to the Indenture, the terms of which are incorporated herein by reference, for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee, the Holders of Senior Instruments and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. Insofar as the provisions of the Indenture may conflict with the provisions set forth in this Security, the former shall control for purposes of this Security.

This Security is one of the series designated on the face hereof, limited to a principal amount of $1,000,000,000, which amount may be increased at the option of the Company without the consent of the Holders of the Securities of this Series. References herein to “this series” mean the series designated on the face hereof.

This Security may be redeemed in certain circumstances at the option of the Company as set forth in the Indenture.

This Security may be automatically converted into ordinary shares or other securities of the Company as set forth in the Indenture.

Subject to applicable law, no Holder of this Security may exercise, claim or plead any right of set-off, compensation or retention in respect of any amount owed to it by the Company arising under, or in connection with, the Securities and each Holder of Securities shall, by virtue of its holding of any Securities, be deemed to have waived all such rights of set-off, compensation or retention.

The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in principal amount of the Securities then Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of a majority in aggregate principal amount of the Securities of each series then Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past Defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.

As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have any right to institute any proceeding, judicial or otherwise, with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of not less than 25% in aggregate principal amount of the Securities of this series then Outstanding shall have made written request to the Trustee to institute proceedings in respect

 

A-4


of such Event of Default as Trustee and offered to the Trustee security or indemnity satisfactory to the Trustee in its sole discretion against the costs, expenses and liabilities to be incurred in compliance with such request, the Trustee shall not have received from the Holders of a majority in principal amount of Securities of this series then Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for sixty (60) days after receipt of such notice, request and offer of indemnity.

Notwithstanding any contrary provisions in this Security, nothing shall impair the right of a Holder of this Security under the Trust Indenture Act, absent such Holder’s consent, to sue for any payments due but unpaid with respect to this Security.

As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where the principal of this Security is payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing. Thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

This Securities of this series are issuable only in registered form without coupons in denominations of $200,000 and integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities are exchangeable for a like aggregate principal amount of Securities of a different authorized denomination, as requested by the Holder surrendering the same.

No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.

Prior to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.

All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.

By acquiring the Securities, the Holder and each Beneficial Owner of this Security, or any interest therein, acknowledges and agrees with and for the benefit of the Company and the Trustee as follows:

 

  (i) Dutch Bail-In Power. Such Holder and Beneficial Owner:

 

  (a) acknowledges and agrees that no exercise of the Dutch Bail-In Power by the Relevant Resolution Authority with respect to the Securities or cancellation or deemed cancellation of interest on the Securities pursuant to Sections 2.03 and 2.04 of the First Supplemental Indenture shall give rise to a default for purposes of Section 315(b) (Notice of Default) and Section 315(c) (Duties of the Trustee in Case of Default) of the Trust Indenture Act;

 

A-5


  (b) to the extent permitted by the Trust Indenture Act, waives any and all claims against the Trustee for, agrees not to initiate a suit against the Trustee in respect of, and agrees that the Trustee shall not be liable for, any action that the Trustee takes, or abstains from taking, in either case in accordance with the exercise of the Dutch Bail-In Power by the Relevant Resolution Authority with respect to the Securities;

 

  (c) acknowledges and agrees that, upon the exercise of any Dutch Bail-In Power by the Relevant Resolution Authority, (i) the Trustee shall not be required to take any further directions from Holders or Beneficial Owners of the Securities under Section 5.12 of the Base Indenture and (ii) the Indenture shall impose no duties upon the Trustee whatsoever with respect to the exercise of any Dutch Bail-In Power by the Relevant Resolution Authority. If Holders or Beneficial Owners of the Securities have given a direction to the Trustee pursuant to Section 5.12 of the Base Indenture prior to the exercise of any Dutch Bail-in Power by the Relevant Resolution Authority, such direction shall cease to be of further effect upon such exercise of any Dutch Bail-in Power and shall become null and void at such time. Notwithstanding the foregoing, if, following the completion of the exercise of the Dutch Bail-In Power by the Relevant Resolution Authority, the Securities remain outstanding, then the Trustee’s duties under the Indenture shall remain applicable with respect to the Securities following such completion to the extent that the Company and the Trustee shall agree pursuant to a supplemental indenture or an amendment to this First Supplemental Indenture; and

 

  (d) (i) consents to the exercise of any Dutch Bail-In Power as it may be imposed without any prior notice by the Relevant Resolution Authority of its decision to exercise such power with respect to the Securities and (ii) authorizes, directs and requests DTC and any direct participant in DTC or other intermediary through which it holds such Securities to take any and all necessary action, if required, to implement (x) the Conversion and (y) the exercise of any Dutch Bail-In Power with respect to the Securities as it may be imposed, without any further action or direction on the part of such Holder and such Beneficial Owner.

 

  (ii) Subsequent Investors’ Agreement. Holders or Beneficial Owners of Securities that acquire them in the secondary market shall be deemed to acknowledge, agree to be bound by and consent to the same provisions specified herein to the same extent as the Holders or Beneficial Owners of the Securities that acquire the Securities upon their initial issuance, including, without limitation, with respect to the acknowledgement and agreement to be bound by and consent to the terms of the Securities, including in relation to interest cancellation, the Conversion, the Dutch Bail-in Power and the limitations on remedies specified in Indenture.

 

  (iii)

Conversion Upon a Trigger Event. Such Holder or Beneficial Owner consents to the Conversion of this Security following a Trigger Event, the appointment of the Conversion Shares Depository, and the issuance of the Conversion Shares to the Conversion Shares Depository, all of which may occur without any further action on the part of such Holder or Beneficial Owner or the Trustee, and following which no Holder or Beneficial Owner of this Security will have any rights against the Company with respect to the payment of principal of, or interest on, such Securities. To the extent this Security is held in the form of a Global Security, such Holder or Beneficial Owner,

 

A-6


  directs and requests the Depositary, any direct participant therein and any other intermediary through which it holds such Securities to take any and all necessary action, if required, to implement the Conversion without any further action or direction on the part of such Holder or Beneficial Owner or the Trustee. Upon a Trigger Event and Conversion, the principal amount of the Securities may be applied in such manner as the Company deems necessary in connection with the issue and paying up of the relevant Conversion Shares and the delivery thereof to the Conversion Shares Depositary or pursuant to any Alternative Delivery Arrangements.

 

  (iv) Interest Cancellation. Interest shall be payable on this Security solely at the discretion of the Company, and no amount of interest shall become due and payable in respect of the relevant Interest Payment Date or related Interest Period or Redemption Date to the extent that it has been cancelled or deemed cancelled (in whole or in part) by the Company in its sole discretion and/or as a result of (i) the Company having insufficient Distributable Items, or (ii) the relevant interest payment’s causing the Maximum Distributable Amount to be exceeded. A cancellation or deemed cancellation of interest (in each case, in whole or in part) in accordance with the terms of the Indenture shall not constitute a default in payment or otherwise under the terms of this Security.

 

  (v) Waiver of Claims. Such Holder or Beneficial Owner unconditionally and irrevocably agrees to each and every provision of the Indenture and this Security waives, to the fullest extent permitted by the Trust Indenture Act and any other applicable law, any and all claims against the Trustee arising out of its acceptance of its trusteeship for the Securities, including, without limitation, claims related to or arising out of or in connection with a Trigger Event and/or any Conversion.

 

  (vi) Successors and Assigns. All authority conferred or agreed to be conferred by the Holder or Beneficial Owner of this Security shall be binding upon the successors, assigns, heirs, executors, administrators, trustees in bankruptcy and legal representatives of such Holder or Beneficial Owner.

 

A-7


Exhibit B

Form of Conversion Notice

CONVERSION NOTICE

[ING Letterhead]

[Date]

 

To: Each Holder and Beneficial Owner of ING Groep N.V. $1,000,000,000 6.000% Perpetual Additional Tier 1 Contingent Convertible Capital Securities (CUSIP: 456837AE3, ISIN: US456837AE31)

This notice is given by ING Groep N.V. (the “Company”) in connection with its $1,000,000,000 6.000% Perpetual Additional Tier 1 Contingent Convertible Capital Securities (CUSIP: 456837AE3, ISIN: US456837AE31) issued on April 16, 2015 (the “Securities”) pursuant to the Capital Securities Indenture, dated April 16, 2015, between the Company and The Bank of New York Mellon, London Branch, as Trustee (the “Trustee”), as supplemented by the First Supplemental Indenture, dated April 16, 2015, between the Company and the Trustee (together, the “Indenture”). Capitalized terms used herein and not defined herein shall have the respective meanings ascribed to such terms in the Indenture.

 

  1. A Trigger Event has occurred with respect to the Securities.

 

  2. The Conversion Date is [•].

 

  3. The Company has appointed [•] as the Conversion Shares Depositary.

 

  4. The Conversion Price is $[•].

 

  5. The Conversion Shares shall be issued in the form of [ordinary shares, par value €[•] per share, of the Company (“Ordinary Shares”][bearer depositary receipts (“Bearer Depositary Receipts”), each representing [one] ordinary share, par value €[•] per share, of the Company, issued by Stichting ING Aandelen (ING Trust Office)].

 

  6. The Company expects The Depository Trust Company to suspend all clearance and settlement of the Securities on [•].

 

  7. Each Holder or Beneficial Owner of a Security or an interest therein is required to complete a Conversion Shares Settlement Notice in the form attached as Annex A and deliver it to the Conversion Shares Depositary not later than [•] (the “Notice Cut-Off Date”).

 

  8. Securities for which no Conversion Shares Settlement Notice has been received by the Conversion Shares Depositary shall be cancelled on [•] (the “Final Cancellation Date”).

 

  9. The Securities shall remain in existence for the sole purpose of evidencing the holder’s right to receive Conversion Shares from the Conversion Shares Depository.

If a Holder or Beneficial Owner of Securities properly completes and delivers a Conversion Shares Settlement Notice on or before the Notice Cut-Off Date, the Conversion Shares Depository shall, in accordance with the terms of the Indenture, deliver to such Holder or Beneficial Owner the relevant Conversion Shares (rounded down to the nearest whole number of Conversion Shares) two (2) Business Days after the date on which the Conversion Shares Settlement Notice is received by the Conversion Shares Depository.


If a Holder or Beneficial Owner of Securities fails to properly complete and deliver a Conversion Shares Settlement Notice before the Notice Cut-Off Date, the Conversion Shares Depository shall continue to hold the relevant Conversion Shares. However, the relevant Securities shall be cancelled on the Final Cancellation Date. Any Holder or Beneficial Owner of Securities delivering a Conversion Shares Settlement Notice after the Notice Cut-Off Date must provide evidence of its entitlement to the relevant Conversion Shares satisfactory to the Conversion Shares Depository in its sole and absolute discretion in order to receive such Conversion Shares.

For inquiries, please contact:

[ING Contact Person]

[Telephone]

[Fax]

[Email]

 

B-2


Exhibit C

Form of Conversion Shares Settlement Notice

CONVERSION SHARES SETTLEMENT NOTICE

 

To:

The Depository Trust Company

55 Water Street, 25th Floor

New York, NY 10041-0099

Attn: Mandatory Reorganization Department

Fax: +1 (212) 855-5488

Email:

mandatoryreorgannouncements@dtcc.com

[Contact details of [Conversion Shares

Depository] to be included.]

Cc:

The Bank of New York Mellon

Merck House

Seldown

Poole, Dorset BH15 1PX

United Kingdom

Attn: International Corporate Trust Services

Email: corpsov2@bnymellon.com

Fax: 01202 689600

Tel: 01202 689978

The Bank of New York Mellon

101 Barclay Street

Floor 7-E

New York, New York 10286

United States of America

Attn: International Corporate Trust

Fax: +1 (212) 815-5366

 

Re: ING Groep N.V. $1,000,000,000 6.000% Perpetual Additional Tier 1 Contingent Convertible Capital Securities (CUSIP: 456837AE3, ISIN: US456837AE31) (the “Securities”)

Reference is made to the Capital Securities Indenture, dated April 16, 2015, between ING Groep N.V. and The Bank of New York Mellon, London Branch, as Trustee (“Trustee”), as supplemented by the First Supplemental Indenture, dated April 16, 2015, between the Company and the Trustee (together, the “Indenture”). Capitalized terms used herein and not defined herein shall have the respective meanings ascribed to such terms in the Indenture.

The person submitting this Notice hereby represents and warrants, for the benefit of the Company and the Conversion Shares Depositary, that the Holder or Beneficial Owner on whose behalf this Notice is submitted is entitled to take delivery of the Conversion Shares and has obtained any consents necessary in order to do so.

 

INFORMATION OF THE HOLDER OR BENEFICIAL OWNER FOR DELIVERY OF

CONVERSION SHARES

 

Surname/Company Name

 

First name

Name to be entered in share register

 

Tradable Amount of the Securities held on the date hereof

 


Euroclear Netherlands or DTC participant ID

 

Euroclear Netherlands member account (if applicable)

Indicate here if Conversion Shares are to be issued in the form of American Depositary Shares:

 

[Account details of clearing system account]1

 

[Address to which any Conversion Shares should be delivered]2

 

YOU MUST DELIVER THE CONVERSION SHARES SETTLEMENT NOTICE TO THE CONVERSION SHARES DEPOSITORY AND THE TRUSTEE VIA DTC BEFORE [INSERT FINAL CANCELLATION DATE].

If you fail to properly complete and deliver the Conversion Shares Settlement Notice on or before [INSERT NOTICE CUT-OFF DATE], the Conversion Shares Depository shall continue to hold your Conversion Shares. However, your Securities shall be cancelled on [INSERT FINAL CANCELLATION DATE], and you will have to provide evidence of your entitlement to the relevant Conversion Shares satisfactory to the Conversion Shares Depository in its sole and absolute discretion in order to receive delivery of such Conversion Shares.

 

1  Note: To be included if the Conversion Shares will be delivered through a clearing system account other than Euroclear Netherlands or DTC.
2  Note: To be included if the Conversion Shares are not a participating security in Euroclear Netherlands, DTC or any another clearing system.

 

D-2



Exhibit 4.3

 

 

 

ING GROEP N.V.,

Issuer

and

THE BANK OF NEW YORK MELLON, LONDON BRANCH,

Trustee

 

 

SECOND SUPPLEMENTAL INDENTURE

Dated as of April 16, 2015

 

 

To the Capital Securities Indenture, dated as of April 16, 2015,

Between ING Groep N.V.

and

The Bank of New York Mellon, London Branch, Trustee

$1,250,000,000 6.500% Perpetual Additional Tier 1 Contingent Convertible Capital Securities

 

 

 


ING GROEP N.V.

Reconciliation and tie between Trust Indenture Act of 1939, as amended by the Trust Indenture Reform Act of 1990, and Indenture, as supplemented by this Second Supplemental Indenture, each dated as of April 16, 2015.

 

Trust Indenture Act Section

  

Indenture Section

§310    (a)(1)    6.09
   (a)(2)    6.09
   (a)(3)    Not Applicable
   (a)(4)    Not Applicable
   (b)    6.08
      6.10
§311    (a)    6.13
   (b)    6.13
§312    (a)    7.01
      7.02(a)
   (b)    7.02(b)
   (c)    7.02(c)
§313    (a)    7.03(a)
   (b)    7.03(a)
   (c)    1.06,7.03(a)
   (d)    7.03(b)
§314    (a)    7.04, 10.06
   (b)    Not Applicable
   (c)(1)    1.02
   (c)(2)    1.02
   (c)(3)    Not Applicable
   (d)    Not Applicable
   (e)    1.02
   (f)    Not Applicable
§315    (a)    6.01, 6.03
   (b)    6.02
   (c)    5.04, 6.01
   (d)(1)    6.01, 6.03
   (d)(2)    6.01, 6.03
   (e)    5.14
§316    (a)(1)(A)    5.02, 5.12
   (a)(1)(B)    5.13
   (a)(2)    Not Applicable
   (a)(last sentence)    1.01
   (b)    5.08
§317    (a)(1)    6.02 of Second Supplemental Indenture
   (a)(2)    5.04
   (b)    10.03
§318    (a)    1.07

NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a part of this Second Supplemental Indenture or the Base Indenture. Section references are to Base Indenture except as indicated.


TABLE OF CONTENTS

 

          Page  
   ARTICLE I   
   DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION   

Section 1.01

   Definitions      1  

Section 1.02

   Effect of Headings      9  

Section 1.03

   Separability Clause      9  

Section 1.04

   Benefits of Instrument      9  

Section 1.05

   Relation to Base Indenture      9  

Section 1.06

   Construction and Interpretation      9  
   ARTICLE II   
   FORM AND TERMS OF THE SECURITIES; INTEREST AND PAYMENTS   

Section 2.01

   Establishment of Securities; Form and Certain Terms of Securities      10  

Section 2.02

   Interest      10  

Section 2.03

   Interest Payments Discretionary      11  

Section 2.04

   Restriction on Interest Payments      11  

Section 2.05

   Effect of Interest Cancellation      12  

Section 2.06

   Notice of Interest Cancellation      12  
   ARTICLE III   
   REDEMPTION AND REPURCHASE   

Section 3.01

   Redemption      12  

Section 3.02

   Notice of Redemption; Automatic Revocation      13  

Section 3.03

   Conditions to Redemption and Repurchase      13  
   ARTICLE IV   
   CONVERSION OF THE SECURITIES   

Section 4.01

   Conversion upon Trigger Event      14  

Section 4.02

   Conversion Shares      16  

Section 4.03

   Settlement Procedure      17  

Section 4.04

   Failure to Deliver a Conversion Shares Settlement Notice      18  

Section 4.05

   Adjustment of Floor Price      18  

Section 4.06

   Covenants Relating to Conversion Shares      19  
   ARTICLE V   
   DUTCH BAIL-IN POWER   

Section 5.01

   Agreement with Respect to Exercise of Dutch Bail-In Power      19  

 

- ii -


  ARTICLE VI    
DEFAULTS AND REMEDIES

Section 6.01

Liquidation Event   20  

Section 6.02

Failure to Pay Principal Amount   20  

Section 6.03

Performance Obligations   21  

Section 6.04

No Other Remedies and Other Terms   21  

Section 6.05

Waiver of Past Defaults   21  
ARTICLE VII
SUBORDINATION AND SET-OFF

Section 7.01

Subordination   22  

Section 7.02

No Set-Off   22  
ARTICLE VIII
ADDITIONAL TRUSTEE PROTECTIONS

Section 8.01

Conversion   22  

Section 8.02

Indemnification by the Company   23  
ARTICLE IX
ADDITIONAL ACKNOWLEDGEMENTS AND AGREEMENTS
OF HOLDERS AND BENEFICIAL OWNERS

Section 9.01

Dutch Bail-In Power   23  

Section 9.02

Conversion Upon a Trigger Event   24  

Section 9.03

Interest Cancellation   24  

Section 9.04

Waiver of Claims   24  

Section 9.05

Successors and Assigns   25  
ARTICLE X
MISCELLANEOUS PROVISIONS

Section 10.01

Effectiveness   25  

Section 10.02

Modification   25  

Section 10.03

Original Issue   25  

Section 10.04

Ratification and Integral Part   25  

Section 10.05

Priority   25  

Section 10.06

Successors and Assigns   26  

Section 10.07

Counterparts   26  

Section 10.08

Governing Law   26  
EXHIBIT A Form of Security A-1
EXHIBIT B Form of Conversion Notice B-1
EXHIBIT C Form of Conversion Shares Settlement Notice C-1
ANNEX I Anti-Dilution Provisions I-1

 

- iii -


SECOND SUPPLEMENTAL INDENTURE, dated as of April 16, 2015 (this “Second Supplemental Indenture”) between ING GROEP N.V., a holding company duly organized and existing under the laws of The Netherlands (herein called the “Company”), having its corporate seat in Amsterdam, The Netherlands, and its principal office at Bijlmerplein 888, 1102 MG Amsterdam, P.O. Box 1800, 100 BV Amsterdam, The Netherlands, and THE BANK OF NEW YORK MELLON, LONDON BRANCH, a New York banking corporation, as Trustee (herein called the “Trustee”), having its Corporate Trust Office at One Canada Square, London E14 5AL, United Kingdom, to the CAPITAL SECURITIES INDENTURE, dated as of April 16, 2015, between the Company and the Trustee, as amended from time to time (the “Base Indenture” and, together with this Second Supplemental Indenture, the “Indenture”).

RECITALS OF THE COMPANY

The Company and the Trustee are parties to the Base Indenture, which provides for the issuance by the Company from time to time of Capital Securities in one or more series.

Section 9.01(f) of the Base Indenture permits supplements thereto without the consent of Holders of Capital Securities to establish the form or terms of Capital Securities of any series as permitted by Sections 2.01 and 3.01 of the Base Indenture.

As contemplated by Section 3.01 of the Base Indenture, the Company intends to issue a new series of Capital Securities to be known as the Company’s “$1,250,000,000 6.500% Perpetual Additional Tier 1 Contingent Convertible Capital Securities” (the “Securities”) under the Indenture.

The Company has taken all necessary corporate action to authorize the execution and delivery of this Second Supplemental Indenture.

NOW, THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE WITNESSETH:

For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities as follows:

ARTICLE I

DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

Section 1.01 Definitions. Except as otherwise expressly provided or unless the context otherwise requires, all terms used in this Second Supplemental Indenture that are defined in the Base Indenture shall have the meanings ascribed to them in the Base Indenture. Certain terms used principally in Annex I (Anti-Dilution Provisions) are defined therein. The following terms used in this Second Supplemental Indenture have the following respective meanings with respect to the Securities only:

Additional Tier 1 Capital” at any time has the meaning given to such term (or an equivalent term) under the Capital Regulations at such time.

ADS” means an American Depositary Share representing one Ordinary Share (whether or not in the form of a Bearer Depositary Receipt).

ADS Depositary” means JPMorgan Chase Bank, as the depositary under the Company’s ADS Depositary Facility, or any successor thereto.


ADS Depositary Facility” means the facility under which the American Depositary Receipts (“ADRs”) representing ADSs may be issued pursuant to the Amended and Restated Deposit Agreement, dated as of February 8, 2013, among the Company, Stichting ING Aandelen, as trustee, the ADS Depositary and the holders from time to time of the ADRs, or any successor or replacement facility.

Alternative Delivery Arrangements” has the meaning set forth in Section 4.01(a).

Base Indenture” has the meaning set forth in the first paragraph of this Second Supplemental Indenture.

Bearer Depositary Receipt” means a bearer depositary receipt issued by the Trust representing one Ordinary Share; provided that if at the time of Conversion one Bearer Depositary Receipt represents a greater or lesser number of Ordinary Shares, each reference to a Bearer Depositary Receipt shall be deemed to be a reference to such number of Bearer Depositary Receipts as shall represent one Ordinary Share.

Beneficial Owner” means (i) with respect to any Global Security, a beneficial owner of an interest therein prior to the occurrence of the Final Cancellation Date and (ii) with respect to any definitive Security, the Holder in whose name the Security is registered in the Security Register.

BRRD” means Directive 2014/59/EU of the European Parliament and of the Council establishing a framework for the recovery and resolution of credit institutions and investment firms.

Business Day” means any day other than a Saturday or Sunday or a day on which banking institutions are authorized or obligated by law or executive order to close in London, Amsterdam or The City of New York.

Cancellation Date” means (i) with respect to any Security for which a Conversion Shares Settlement Notice is received by the Conversion Shares Depository on or before the Notice Cut-Off Date, the applicable Settlement Date and (ii) with respect to any Security for which a Conversion Shares Settlement Notice is not received by the Conversion Shares Depository on or before the Notice Cut-Off Date, the Final Cancellation Date.

Calculation Agent” means the Person (including the Interest Calculation Agent (or any successor thereto) but excluding the Conversion Calculation Agent (or any successor thereto)), if any, authorized by the Company to calculate the interest rate or other amounts from time to time in relation to any series of Capital Securities.

Company” has the meaning set forth in the first paragraph of this Second Supplemental Indenture, and includes any successor entity.

Conversion Calculation Agent” has the meaning set forth in Section 4.05(b).

Conversion Date” means the date specified in the Conversion Notice on which the Conversion takes place.

 

- 2 -


Conversion” means the irrevocable and automatic release of all of the Company’s obligations to the holders under the Securities in consideration of the Company’s issuance of the Conversion Shares at the Conversion Price to the Conversion Shares Depository (on behalf of the Holders and Beneficial Owners of the Securities) or to the relevant recipient of such Conversion Shares pursuant to any Alternative Delivery Arrangements.

Conversion Notice” means a written notice substantially in the form attached hereto as Exhibit B.

Conversion Price” means (i) if the Ordinary Shares are then admitted to trading on a Relevant Stock Exchange, the highest of (a) the Current Market Price per Ordinary Share translated into U.S. dollars at the Prevailing Rate, (b) the Floor Price and (c) the nominal value of an Ordinary Share translated into U.S. dollars at the Prevailing Rate, and (ii) if the Ordinary Shares are not then admitted to trading on a Relevant Stock Exchange, the higher of (x) the Floor Price and (y) the nominal value of an Ordinary Share translated into U.S. dollars at the Prevailing Rate. The Current Market Price, Floor Price and Prevailing Rate shall each be determined on the date on which the Conversion Notice is given.

Conversion Shares” means Ordinary Shares to be issued to the Conversion Shares Depository (or to the relevant recipient in accordance with the terms of the Securities) following a Conversion; provided that if at the time of Conversion the Ordinary Shares are represented by Bearer Depositary Receipts and only Bearer Depositary Receipts are admitted to listing on the Relevant Stock Exchange, “Conversion Shares” shall mean Bearer Depositary Receipts.

Conversion Shares Depository” has the meaning set forth in Section 4.01(a).

Conversion Shares Settlement Notice” means a written notice substantially in the form attached hereto as Exhibit C.

CRD IV” means the legislative package consisting of the CRD IV Directive and the CRD IV Regulation.

Current Market Price” has the meaning set forth in Annex I (Anti-Dilution Provisions).

Default” means (i) an Event of Default, (ii) a Payment Default or (iii) the breach by the Company of a Performance Obligation.

Distributable Items” shall have the meaning assigned to such term in the CRD IV Regulation, as interpreted and applied in accordance with the Capital Regulations then applicable to the Company.

Dutch Bail-In Power” means any statutory write-down and/or conversion power existing from time to time under any laws, regulations, rules or requirements relating to the resolution of banks, banking group companies, credit institutions and/or investment firms incorporated in The Netherlands in effect and applicable in The Netherlands to the Company or other members of the Group, including but not limited to any such laws, regulations, rules or requirements that are implemented, adopted or enacted within the context of a European Union directive or regulation of the European Parliament and of the Council establishing a framework for the recovery and resolution of credit institutions and investment firms (including but not limited to the BRRD and the SRM Regulation) and/or within the context of a Dutch resolution regime under the Dutch Intervention Act and any amendments thereto (which includes any amendments to be made by the forthcoming BRRD (Implementation) Act) or otherwise, pursuant to which obligations of a bank, banking group company, credit institution or investment firm or any of its affiliates can be reduced, cancelled and/or converted into shares or other securities or obligations of the obligor or any other person or may be expropriated.

 

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Euronext Amsterdam” means Euronext in Amsterdam, a regulated market of Euronext Amsterdam N.V.

Existing Capital Instruments” means the 7.05% ING Perpetual Debt Securities issued on July 18, 2002, 7.20% ING Perpetual Debt Securities issued on December 12, 2002, ING Perpetual Securities II issued on June 19, 2003, 6.20% ING Perpetual Debt Securities issued on October 28, 2003, ING Perpetual Securities III issued on June 16, 2004, 4.176% ING Perpetual Securities issued on June 8, 2005, 6.125% ING Perpetual Debt Securities issued on September 26, 2005, 5.775% Fixed/Floating ING Perpetual Debt Securities issued on December 8, 2005, 5.140% ING Perpetual Securities issued March 17, 2006, 6.375% ING Perpetual Hybrid Capital Securities issued on June 13, 2007, 7.375% ING Perpetual Hybrid Capital Securities issued on October 4, 2007 and the Company’s guarantee of the 8.439% Non-cumulative Guaranteed Trust Preferred Securities issued by ING Capital Funding Trust III on December 15, 2000.

Final Cancellation Date” means the date, as specified in the Conversion Notice, on which the Securities in relation to which no Conversion Shares Settlement Notice has been received by the Conversion Shares Depository on or before the Notice Cut-Off Date shall be cancelled, which date may be up to fifteen (15) Business Days following the Notice Cut-Off Date.

First Call Date” means April 16, 2025.

Floor Price” means $9.00 per Conversion Share (subject to certain anti-dilution adjustments pursuant to Section 4.05).

Further Capital Securities” means any securities issued after the Issue Date which are contingently convertible into Ordinary Shares pursuant to their terms in the event that the Group CET1 Ratio is less than a specified percentage.

Group CET1 Capital” means, at any time and expressed in euro, the Common Equity Tier 1 capital (or an equivalent or successor term) at such time, of the Company calculated in accordance with Article 11(2) of the CRD IV Regulation on the basis of the consolidated situation of the Company as the parent financial holding company of the Bank and taking into account any transitional arrangements under the Capital Regulations.

Group CET1 Ratio” means, as of any date, the ratio of the aggregate amount of Group CET1 Capital to the Group Total Risk Exposure Amount as of the same date, expressed as a percentage.

Group Total Risk Exposure Amount” means, at any time and expressed in euro, the total risk exposure amount (or an equivalent or successor term) at such time, of the Company calculated in accordance with Article 11(2) of the CRD IV Regulation on the basis of the consolidated situation of the Company as the parent financial holding company for the Bank, in accordance with the Capital Regulations and taking into account any transitional arrangements under the Capital Regulations.

Indenture” has the meaning set forth in the first paragraph of this Second Supplemental Indenture.

 

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Independent Financial Adviser” means an independent financial institution of international repute or independent financial adviser with appropriate expertise (which may include the initial Conversion Calculation Agent) appointed by the Company at its own expense.

Interest Calculation Agent” means The Bank of New York Mellon, London Branch, or its successor appointed by the Company pursuant to the Interest Calculation Agent Agreement between the Company and The Bank of New York Mellon, London Branch, dated as of the date hereof.

Interest Payment Date” has the meaning set forth in Section 2.02.

Interest Period” means the period from and including an Interest Payment Date (or the Issue Date, in the case of the initial Interest Period) to but excluding the next succeeding Interest Payment Date.

Issue Date” has the meaning set forth in Section 2.01(b).

Liquidation Event” means a liquidation (upon dissolution (ontbinding) or otherwise), moratorium of payments (surseance van betaling) or bankruptcy (faillissement) of the Company; provided that the exercise of the Dutch Bail-In Power by the Relevant Resolution Authority with respect to the Securities shall not constitute a Liquidation Event.

Maximum Distributable Amount” means any applicable maximum distributable amount relating to the Company required to be calculated in accordance with Article 141 of the CRD IV Directive or, as the case may be, any provision of applicable law, including the Dutch Financial Markets Supervision Act (Wet op het financieel toezicht), transposing or implementing the CRD IV Directive, as amended or replaced).

Mid-Market Swap Rate” means the mid-market U.S. dollar swap rate LIBOR basis having a five-year maturity appearing on Bloomberg page “ISDA01” (or such other page as may replace such page on Bloomberg, or such other page as may be nominated by the person providing or sponsoring the information appearing on such page for purposes of displaying comparable rates) at 11:00 a.m. (New York City time) on the relevant Reset Determination Date, as determined by the Interest Calculation Agent. If such swap rate does not appear on such page (or such other page or service), the Mid-Market Swap Rate shall instead be determined by the Interest Calculation Agent on the basis of (i) quotations provided by the principal office of each of four major banks in the U.S. dollar swap rate market (which banks shall be selected by the Interest Calculation Agent in consultation with the Company no less than 20 calendar days prior to the relevant Reset Determination Date) (the “Reference Banks”) of the rates at which swaps in U.S. dollars are offered by it at approximately 11:00 a.m. (New York City time) (or thereafter on such date, with the Interest Calculation Agent acting on a best efforts basis) on the relevant Reset Determination Date to participants in the U.S. dollar swap rate market for a five-year period and (ii) the arithmetic mean expressed as a percentage and rounded, if necessary, to the nearest 0.001% (0.0005% being rounded upwards) of such quotations. If the relevant Mid-Market Swap Rate is still not determined on the relevant Reset Determination Date in accordance with the foregoing procedures, the relevant Mid-Market Swap Rate shall be the mid-market U.S. dollar swap rate LIBOR basis having a five-year maturity that appeared on the most recent Bloomberg page “ISDA01” (or such other page as may replace such page on Bloomberg, or such other page as may be nominated by the person providing or sponsoring the information appearing on such page for purposes of displaying comparable rates) that was last available prior to 11:00 a.m. (New York City time) on each Reset Determination Date, as determined by the Interest Calculation Agent.

 

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Notice Cut-Off Date” means the date specified as such in the Conversion Notice, which date shall be at least twenty (20) Business Days following the Suspension Date.

Ordinary Shares” means fully paid Ordinary Shares in the capital of the Company.

Parity Instruments” means securities, instruments or obligations of the Company which upon a Liquidation Event occurring prior to the Trigger Event rank, or are expressed to rank, pari passu with the Securities, including the Existing Capital Instruments.

Payment Default” means the failure to pay the principal amount of the Securities within 14 days of the date fixed for redemption of the Securities, provided that the notice of such redemption shall not have been revoked pursuant to Section 3.02 and the conditions to redemption set forth in Section 3.03 shall have been satisfied on the date fixed for redemption.

Performance Obligation” means any term, obligation or condition binding upon the Company under the Securities or under the Indenture with respect to the Securities other than any obligation to pay principal of, or interest on, any Securities or any obligation to pay Additional Amounts in respect thereof (whether upon redemption, the occurrence of a Liquidation Event or otherwise).

Prevailing Rate” means, in respect of any pair of currencies on any calendar day, the spot rate of exchange between the relevant currencies prevailing as at or about 12:00 pm, London time, on that date as appearing on or derived from the Relevant Page or, if such a rate cannot be determined at such time, the rate prevailing as at or about 12:00 pm, London time, on the immediately preceding day on which such rate can be so determined or, if such rate cannot be so determined by reference to the Relevant Page, the rate determined in such other manner as an Independent Financial Adviser shall in good faith prescribe.

Regular Record Date” means the Business Day immediately preceding each Interest Payment Date (or, if the Securities are issued in the form of definitive Securities, the fifteenth (15th) Business Day preceding each Interest Payment Date).

Regulatory Event” means that, as a result of a change in the regulatory classification of the Securities on or after the Issue Date, the Securities have been or will be excluded in whole from the own funds of the Company, calculated in accordance with Article 11(2) of the CRD IV Regulation on the basis of the consolidated situation of the Company as the parent financial holding company for the Bank, or reclassified in whole as a lower quality form of own funds (that is, no longer Additional Tier 1 Capital).

Relevant Page” means the relevant page on Bloomberg or such other information service provider that displays the relevant information, as determined by the Conversion Calculation Agent.

Relevant Regulator” means the European Central Bank or any other body or authority having primary supervisory authority with respect to the Company, the Bank or the Group.

Relevant Resolution Authority” means any authority with the ability to exercise a Dutch Bail-In Power.

 

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Relevant Stock Exchange” means Euronext Amsterdam or, if at the relevant time the Ordinary Shares are not at that time listed and admitted to trading on the Euronext Amsterdam, the principal stock exchange or securities market on which the Ordinary Shares are then listed, admitted to trading or quoted or accepted for dealing.

Reset Date” means the First Call Date and each five-year anniversary thereafter.

Reset Determination Date” means, with respect to any Reset Date, the second (2nd) Business Day immediately preceding such Reset Date.

Securities” has the meaning set forth in the Recitals.

Senior Instruments” means securities, instruments or obligations of the Company: (i) the holders of which are unsubordinated creditors of the Company (“Unsubordinated Instruments”), or (ii) which are, or are expressed to be, subordinated (whether only in the event of the liquidation of the Company or otherwise) to Unsubordinated Instruments but not further or otherwise, or (iii) which in a liquidation, moratorium or bankruptcy of the Company occurring prior to the Trigger Event are, or are expressed to be, further or otherwise subordinated, other than those which in such event rank, or are expressed to rank, pari passu with or junior to the Securities. For the avoidance of doubt, “Senior Instruments” includes securities, instruments or obligations of the Company which are Tier 2 instruments within the meaning of Article 52(1)(d) of the CRD IV Regulation.

Settlement Date” means (i) with respect to any Security in relation to which a Conversion Shares Settlement Notice is received by the Conversion Shares Depository (or the relevant recipient, as applicable) on or before the Notice Cut-Off Date, the date which is two (2) Business Days after (a) the date on which such Conversion Shares Settlement Notice has been received by the Conversion Shares Depository or (b) (if later) the date on which the Conversion Shares are delivered to the Conversion Shares Depository, and (ii) with respect to any Security in relation to which a Conversion Shares Settlement Notice is not received by the Conversion Shares Depository on or before the Notice Cut-Off Date, the date on which the Conversion Shares Depository delivers the relevant Conversion Shares.

Shareholders” means the holders of Ordinary Shares.

SRM Regulation” means the provisions of Regulation (EU) No 806/2014 of the European Parliament and of the Council.

Suspension Date” means the date specified in the Conversion Notice as the date on which DTC is expected to suspend all clearance and settlement of transactions in the Securities in accordance with its rules and procedures.

Tax Event” shall mean the Company determining that, as a result of a Tax Law Change, the Company (a) will or would be required on the next Interest Payment Date (or if the next Interest Payment Date is scheduled to occur within thirty (30) days, then on the Interest Payment Date immediately following the next Interest Payment Date) to pay holders Additional Amounts; or (b) would not be entitled to claim a deduction in respect of any interest payments made on the next Interest Payment Date (or if the next Interest Payment Date is scheduled to occur within thirty (30) days, then on the Interest Payment Date immediately following the next Interest Payment Date) in computing the Company’s taxation liabilities in The Netherlands, or the amount of the deduction would be materially reduced; provided in each of the case of (a) and (b) that the consequences of such event cannot be avoided by the Company taking reasonable measures available to it.

 

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Tax Law Change” means a change in or proposed change (Voorstel van Wet) in, or amendment or proposed amendment (Voorstel van Wet) to, the laws or regulations of The Netherlands or any political subdivision or authority therein or thereof having the power to tax, including any treaty to which The Netherlands is a party, or any change in the application of official or generally published interpretation of such laws or regulations, including a decision of any court or tribunal, or any interpretation or pronouncement by any relevant tax authority, which change or amendment (including, for the avoidance of doubt, a decision of any court or tribunal) becomes, or would become, effective on or after the Issue Date or, in the case of a proposed change (Voorstel van Wet), is expected to be enacted or otherwise become effective on or after the Issue Date; provided that for the avoidance of doubt, a Tax Law Change does not include any amendment, clarification or change (including any announced prospective change) to article 29a of the Dutch Corporate Income Tax Act 1969 (artikel 29a Wet op de vennootschapsbelasting 1969) as a result of the exchange of views (gedachtewisseling) as referred to in the final report of the permanent commission for finance of the First Chamber of Parliament (eindverslag van de vaste commissie van financiën van de Eerste Kamer der Staten-Generaal) relating to Article IV of the Dutch Tax Compilation Act 2014 (Fiscale verzamelwet 2014).

Tradable Amount” has the meaning set forth in Section 2.01(j).

Trigger Event” shall occur at any time the Company has determined that the Group CET1 Ratio is less than 7.00%.

Trigger Event Officers’ Certificate” has the meaning set forth in Section 4.01(a)(ii).

Trust” means Stichting ING Aandelen (ING Trust Office).

Trustee” has the meaning set forth in the first paragraph of this Second Supplemental Indenture.

 

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Section 1.02 Effect of Headings. The Article and Section headings herein are for convenience only and shall not affect the construction hereof.

Section 1.03 Separability Clause. In case any provision in this Second Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

Section 1.04 Benefits of Instrument. Nothing in this Second Supplemental Indenture, express or implied, shall give to any person, other than the parties hereto and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under the Indenture.

Section 1.05 Relation to Base Indenture. This Second Supplemental Indenture constitutes an integral part of the Base Indenture. Notwithstanding any other provision of this Second Supplemental Indenture, all provisions of this Second Supplemental Indenture are expressly and solely for the benefit of the Holders and Beneficial Owners of the Securities and any such provisions shall not be deemed to apply to any other Capital Securities issued under the Base Indenture and shall not be deemed to amend, modify or supplement the Base Indenture for any purpose other than with respect to the Securities.

Section 1.06 Construction and Interpretation. Unless the express otherwise requires:

(a) the words “hereof”, “herein” and “hereunder” and words of similar import, when used in this Second Supplemental Indenture, refer to this Second Supplemental Indenture as a whole and not to any particular provision of this Second Supplemental Indenture;

(b) the terms defined in the singular have a comparable meaning when used in the plural, and vice versa;

(c) references herein to a specific Section, Article or Exhibit refer to Sections or Articles of, or an Exhibit to, this Second Supplemental Indenture;

(d) wherever the words “include”, “includes” or “including” are used in this Second Supplemental Indenture, they shall be deemed to be followed by the words “without limitation;”

(e) references to a Person are also to its successors and permitted assigns;

(f) the use of “or” is not intended to be exclusive unless expressly indicated otherwise;

(g) references to any act or statute or any provision of any act or statute shall be deemed also to refer to any statutory modification or re-enactment thereof or any statutory instrument, order or regulation made thereunder or under such modification or re-enactment; and

(h) references to any issue or offer or grant to Shareholders “as a class” or “by way of rights” shall be taken to be references to an issue or offer or grant to all or substantially all Shareholders, as the case may be, other than Shareholders, as the case may be, to whom, by reason of the laws of any territory or requirements of any recognized regulatory body or any other stock exchange or securities market in any territory or in connection with fractional entitlements, it is determined not to make such issue or offer or grant.

 

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ARTICLE II

FORM AND TERMS OF THE SECURITIES; INTEREST AND PAYMENTS

Section 2.01 Establishment of Securities; Form and Certain Terms of Securities.

(a) There is hereby established a new series of Capital Securities under the Base Indenture entitled the “$1,250,000,000 6.500% Perpetual Additional Tier 1 Contingent Convertible Capital Securities.” The Securities shall be executed and delivered in substantially the form attached hereto as Exhibit A. The Securities shall be initially issued in the form of one or more Global Securities. The Company hereby designates DTC as the Depositary for the Securities.

(b) The Company shall issue the Securities in an aggregate principal amount of $1,250,000,000 on April 16, 2015 (the “Issue Date”). The Company may issue additional Securities from time to time after the Issue Date in the manner and to the extent permitted by Section 3.01 of the Base Indenture.

(c) The Securities shall be perpetual and redeemable by the Company as provided in Article III. The Securities shall not have a sinking fund and are not redeemable at the option of the Holders.

(d) Interest shall be payable on the Securities as provided in Sections 2.02 through 2.06 and Additional Amounts shall be payable in respect of the Securities in accordance with Section 10.04 of the Base Indenture.

(e) The Company hereby appoints the Trustee, acting through its office at One Canada Square, London E14 5AL, to act as Paying Agent for the Securities.

(f) The Securities shall be automatically convertible as provided in Article IV. The Securities are not convertible at the option of the Holders.

(g) The Securities shall be subject to the Dutch Bail-In Power as provided in Article V.

(h) The Securities constitute the direct unsecured obligations of the Company ranking pari passu without any preference among themselves and shall rank subordinate to Senior Instruments as provided in Article VII.

(i) The events of default and remedies with respect to the Securities shall be limited as provided in Article VI.

(j) The Securities shall be issued in denominations of $200,000 in principal amount and integral multiples of $1,000 in excess thereof. The denomination of each Security (or any interest therein) shall be its “Tradable Amount.” Prior to a Conversion, the Tradable Amount of any Security (or any interest therein) shall equal its principal amount. Following a Conversion, the principal amount of each Security shall equal zero, but its Tradable Amount shall remain unchanged as a result of the Conversion.

Section 2.02 Interest. The interest rate on the Securities shall be (i) from and including the Issue Date to but excluding the First Call Date 6.500% per annum and (ii) from and including each Reset Date to but excluding the following Reset Date, the sum of the applicable Mid-Market Swap Rate

 

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on the Reset Determination Date and 4.446%. Subject to Sections 2.03 and 2.04, interest on the principal amount of each Security shall be payable semiannually in arrear on April 16 and October 16 of each year (each, an “Interest Payment Date”), commencing on October 16, 2015, and shall be computed on the basis of a year of 360 days consisting of twelve (12) months of thirty (30) days each and, in the case of an incomplete month, the actual number of days elapsed. The first date on which interest may be paid will be October 16, 2015 for the period commencing on (and including) April 16, 2015, and ending on (but excluding) October 16, 2015.

Section 2.03 Interest Payments Discretionary. Subject to Section 2.04, interest on the Securities shall be due and payable at the sole and absolute discretion of the Company. The Company shall have sole and absolute discretion at all times and for any reason to cancel (in whole or in part) any interest payment that would otherwise be payable in respect of the Securities on any Interest Payment Date or Redemption Date. If the Company does not make an interest payment on any Interest Payment Date or Redemption Date in whole or in part, such interest payment (or the portion thereof not paid) shall be deemed cancelled and shall not be due and payable whether or not the Company has provided notice of cancellation of such interest payment as set forth in Section 2.06. An interest payment otherwise payable on an Interest Payment Date or Redemption Date that is not a Business Day will not be deemed cancelled if it is paid on the following Business Day.

Section 2.04 Restriction on Interest Payments.

(a) Without limiting the Company’s right to cancel any interest payment pursuant to Section 2.03 and subject to the extent permitted in Section 2.04(b) in respect of partial interest payments in respect of the Securities, the Company shall not make an interest payment in respect of the Securities on any Interest Payment Date or Redemption Date (or the following Business Day, if such Interest Payment Date or Redemption Date, as the case may be, is not a Business Day) in whole or in part, if and to the extent that:

 

  (i) the amount of such interest payment otherwise due, together with any interest payments or distributions which have been paid or made or which are required to be paid or made during the then current financial year on other own funds items (excluding any such interest payments or distributions which (i) are not required to be made out of Distributable Items or (ii) have already been provided for, by way of deduction, in the calculation of Distributable Items), in the aggregate exceed the amount of Distributable Items of the Company as at such Interest Payment Date or Redemption Date; or

 

  (ii) the payment of such interest, when aggregated together with other distributions of the kind referred to in Article 141(2) of the CRD IV Directive (or any provision of applicable law transposing or implementing Article 141(2) of the CRD IV Directive, as amended or replaced (or any provision of applicable law, including the Dutch Financial Markets Supervision Act (Wet op het financieel toezicht), transposing or implementing Article 141(2) of the CRD IV Directive, as amended or replaced)), would cause the Maximum Distributable Amount, if any, then applicable to the Company to be exceeded.

(b) The Company may, however, in its sole discretion, elect to make a partial interest payment in respect of the Securities to the extent that such partial interest payment may be made without breaching the restriction set forth in Section 2.04(a).

 

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Section 2.05 Effect of Interest Cancellation. Interest on the Securities shall only be due and payable on an Interest Payment Date to the extent it is not cancelled or deemed cancelled pursuant to Section 2.03 or 2.04. Any interest cancelled or deemed cancelled (in each case, in whole or in part) pursuant to Sections 2.03 and 2.04 shall not be due and shall not accumulate or be payable at any time thereafter (including upon redemption of the Securities), and Holders and Beneficial Owners of the Securities shall have no rights thereto (whether upon a Liquidation Event or otherwise) or to receive any additional interest or compensation as a result of such cancellation or deemed cancellation of interest in respect of the Securities.

Section 2.06 Notice of Interest Cancellation. Notwithstanding anything to the contrary in the Indenture (including Section 1.06 of the Base Indenture), if practicable, the Company shall provide notice of any cancellation of interest (in each case, in whole or in part) to the Trustee and the Holders of the Securities at least five (5) Business Days prior to the relevant Interest Payment Date or Redemption Date and shall provide notice of any deemed cancellation of interest to the Trustee and the Holders of the Securities as promptly as practicable following the relevant Interest Payment Date or Redemption Date. Failure to provide such notice shall have no impact on the effectiveness of, or otherwise invalidate, any such cancellation or deemed cancellation of interest, or give the Holders and Beneficial Owners of the Securities any rights as a result of such failure.

Section 2.07 Determination of Interest Calculation Agent. All determinations and calculations made by the Interest Calculation Agent shall be conclusive and binding on the Holders of the Securities, the Company and the Trustee, absent manifest error.

ARTICLE III

REDEMPTION AND PURCHASE

Section 3.01 Redemption.

 

  (a) Subject to the limitations specified in Section 3.02, the Company may, at its option, redeem the Securities, in whole but not in part:

 

  (i) on any Reset Date;

 

  (ii) at any time if a Regulatory Event has occurred and is then continuing; or

 

  (iii) at any time if a Tax Event has occurred and is then continuing;

in each of cases (i) to (iii) above, at their principal amount, plus accrued and unpaid interest to the Redemption Date (including Additional Amounts, if any), excluding any interest that has been cancelled or is deemed cancelled in accordance with Section 2.03 or that the Company would not be permitted to pay pursuant to Section 2.04.

(b) Prior to the delivery of any notice of redemption in respect of a redemption under (a)(iii) the Company shall deliver to the Trustee an opinion from a recognized law or tax firm of international standing, chosen by the Company, in a form satisfactory to the Trustee, confirming that the Company is entitled to exercise its right of redemption under (a)(iii).

 

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Section 3.02 Notice of Redemption; Automatic Revocation.

(a) Notice of redemption of the Securities shall be given as provided in Section 11.04 of the Base Indenture. Such notice shall state the place or places where the Securities are to be surrendered for payment of the Redemption Price and that on the date specified for redemption, each Security shall be redeemed and the principal amount of each Security will become due and payable and that, subject to certain exceptions, interest shall cease to accrue after the redemption date. A notice of redemption shall be irrevocable, except that the occurrence of a Trigger Event or Liquidation Event or the exercise of the Dutch Bail-In Power by the Relevant Resolution Authority prior to the date fixed for redemption shall automatically revoke such notice and no Securities shall be redeemed and no payment in respect of the Securities shall be due and payable.

(b) Prior to giving notice of redemption pursuant to Section 3.01(a)(ii) or Section 3.01(a)(iii), the Company shall deliver to the trustee a certificate signed by any two (2) members of the Executive Board stating that the conditions to such redemption have been satisfied.

(c) The Company shall not give a notice of redemption of the Securities following the occurrence of a Trigger Event.

(d) The Company shall promptly deliver notice to the Trustee and the Holders of the Securities of any event that shall have automatically revoked any redemption notice pursuant to Section 3.02(a).

Section 3.03 Conditions to Redemption and Purchase.

(a) The Company may not give notice of any redemption of or redeem, nor may the Company or any member of the Group purchase, any Securities unless the Company shall have obtained the prior consent of the Relevant Regulator.

(b) Any redemption or purchase of the Securities is subject to the additional conditions as set out below, in each case if and to the extent required under the Capital Regulations:

 

  (i) either (A) on or before such redemption or purchase of the Securities, the Company shall have replaced the Securities with own funds instruments of equal or higher quality on terms that are sustainable for the Company’s income capacity or (B) the Company has demonstrated to the satisfaction of the Relevant Regulator that the available own funds would, following such redemption or purchase, exceed the capital ratios (including any capital buffer requirements) required under CRD IV by a margin that the Relevant Regulator considers necessary at such time; and

 

  (ii) in respect of a redemption prior to the fifth anniversary of the Issue Date, (A) in the case of redemption due to the occurrence of a Regulatory Event, the Company shall have demonstrated to the satisfaction of the Relevant Regulator that the change in the regulatory classification of the Securities was not reasonably foreseeable as at the Issue Date; or (B) in the case of redemption due to the occurrence of a Tax Event, the Company shall have demonstrated to the satisfaction of the Relevant Regulator that the change in the applicable tax treatment of the Securities is material and was not reasonably foreseeable as at the Issue Date; and

 

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  (iii) if, at the time of such redemption or purchase, the Capital Regulations permit the redemption or purchase only after compliance with one or more alternative or additional pre-conditions to those set out in (i) and (ii) above, the Company shall have complied with such other pre-condition(s).

Section 3.04 Optional Purchases. If permitted by the Capital Regulations, the Issuer or any member of the Group may, at any time (including prior to the fifth anniversary of the Issue Date), in the context of market making, liability management exercises, or otherwise, but only if expressly allowed, as agreed by the Relevant Regulator, purchase or procure others to purchase beneficially for its account any of the outstanding Securities in any manner and at any price in accordance with the Capital Regulations. Any such purchases will be subject to the satisfaction of the conditions set out in Section 3.03.

ARTICLE IV

CONVERSION OF THE SECURITIES

Section 4.01 Conversion upon Trigger Event.

 

  (a) Upon the occurrence of a Trigger Event, the Company shall:

 

  (i) immediately inform the Relevant Regulatory Authority of its occurrence;

 

  (ii) deliver to the Trustee an Officers’ Certificate signed by two (2) members of the Executive Board stating that a Trigger Event has occurred (a “Trigger Event Officers’ Certificate”);

 

  (iii) appoint a financial institution, trust company, depository entity, nominee entity or similar entity that is wholly independent of the Company (the entity so appointed, the “Conversion Shares Depositary”) as promptly as practicable thereafter; and

 

  (iv) as promptly as practicable following the Company’s appointment of a Conversion Shares Depositary (or of its ascertaining that it is not reasonably able to do so) and the delivery of a Trigger Event Officers’ Certificate to the Trustee, and, in any event, within such period as the Relevant Regulator may require, the Company shall deliver a Conversion Notice to the Trustee and to Holders (via DTC).

As a condition of its appointment, the Conversion Shares Depositary shall be required to undertake, for the benefit of the Holders and Beneficial Owners of the Securities, to hold the Conversion Shares on their behalf in one or more segregated accounts and perform each function ascribed to it in this Second Supplemental Indenture. If the Company is unable to appoint a Conversion Shares Depositary prior to delivery of the Conversion Notice, it shall make such other arrangements as it deems reasonable to effect the delivery of the Conversion Shares to or for the benefit of the Holders of the Securities (the “Alternative Delivery Arrangements”). Each Holder and Beneficial Owner of any Securities shall be deemed to have irrevocably directed the Company to issue the Conversion Shares in accordance with such arrangements.

 

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(b) A Conversion Notice shall be given substantially in the form of Exhibit B, with such modifications as shall be reasonably necessary to reflect any Alternative Delivery Arrangements. Such Conversion Notice shall be completed consistent with the requirements of this Article IV and shall specify, among other things:

 

  (i) that a Trigger Event has occurred with respect to the Securities;

 

  (ii) the Conversion Price;

 

  (iii) a Conversion Date occurring without delay upon the occurrence of the Trigger Event and in any event within one (1) month following the date of such Trigger Event and in accordance with the requirements set out in Article 54 of the CRD IV Regulation as at the Issue Date;

 

  (iv) the Notice Cut-Off Date; and

 

  (v) a Final Cancellation Date, which shall be to the extent practicable no more than fifteen (15) Business Days following the Notice Cut-Off Date

A form of Conversion Shares Settlement Notice substantially in the form of Exhibit C, with such modifications as shall be reasonably necessary to reflect any Alternative Delivery Arrangements or any changes in the procedures of the Depositary applicable to the Conversion, shall be attached to the Conversion Notice as Annex A thereto.

(c) If the outstanding Securities are issued in definitive form, the Trustee shall mail the Conversion Notice to the Holders of the Securities at their addresses shown on the Security Register within two (2) Business Days of its receipt from the Company and, if the Securities are then held by DTC in the form of Global Securities, the Trustee shall request that DTC post the Conversion Notice on its Reorganization Inquiry for Participants System pursuant to DTC’s procedures then in effect (or such other system as DTC uses for providing notices to holders of securities). The date on which the Conversion Notice shall be deemed to have been given shall be the date on which it is delivered by the Issuer to DTC.

(d) The Conversion shall occur on the Conversion Date specified in the Conversion Notice. On the Conversion Date, the Company shall issue and deliver the Conversion Shares to the Conversion Shares Depositary (or, if it shall not have been able to appoint a Conversion Shares Depositary, pursuant to any Alternative Delivery Arrangements). If the Ordinary Shares are then represented by Bearer Depositary Receipts and only Bearer Depositary Receipts are admitted to listing on the Relevant Stock Exchange, the Company shall issue the required number of Ordinary Shares to the Trust and cause the Trust to issue and deliver the required number of Bearer Depositary Receipts to the Conversion Shares Depositary (or, if it shall not have been able to appoint a Conversion Shares Depositary, pursuant to any Alternative Delivery Arrangements). Certificates in respect of Bearer Depositary Receipts shall not be issued upon Conversion, and Bearer Depositary Receipts may not be exchanged for Ordinary Shares, subject as provided by applicable law or in the Company’s articles of association, the articles of association of the Trust or the terms of administration (administratievoorwaarden) of the Trust as the same may be in force from time to time. All of the Company’s obligations to the Holders and Beneficial Owners of the Securities under the Securities and the Indenture shall be irrevocably and automatically released in consideration of the Company’s issuance and delivery of such Conversion Shares on the Conversion Date pursuant to this Section 4.01(d) and shall under no circumstances shall such released obligations be reinstated. Upon such issuance and delivery, (i) the principal amount of each Security shall automatically be reduced to zero and each Holder or Beneficial Owner of a Security shall have recourse only to the Conversion Shares Depositary for delivery of the Conversion Shares and (ii) the Securities shall remain in existence until the applicable Cancellation Date for the sole purpose of evidencing the Holders’ and Beneficial Owners’ right to receive Conversion

 

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Shares from the Conversion Shares Depository or pursuant to any Alternative Delivery Arrangements. Any interest in respect of an Interest Period ending on any Interest Payment Date or Redemption Date falling between the date of a Trigger Event and the Conversion Date shall be deemed to have been cancelled upon the occurrence of such Trigger Event and shall not be due and payable. The Holders’ sole recourse for the Company’s failure to issue and deliver the Conversion Shares to the Conversion Shares Depositary or pursuant to any Alternative Delivery Arrangements on the Conversion Date shall be the right to demand that the Company make such issuance and delivery.

(e) If a Conversion Shares Depositary shall have been appointed, the Conversion Shares shall initially be registered in the name of the Conversion Shares Depository (which shall hold the Conversion Shares on behalf of the Holders and Beneficial Owners of the Securities), and each Holder and Beneficial Owner of the Securities shall be deemed to have irrevocably directed the Company to issue the Conversion Shares corresponding to the conversion of its holding of Securities to the Conversion Shares Depository.

(f) Each Holder and Beneficial Owner of Securities shall be entitled to direct the Conversion Shares Depository to exercise on its behalf all rights of a holder of the Conversion Shares (including voting rights and rights to receive dividends) other than any right to sell or otherwise transfer the Conversion Shares, which no such Holder or Beneficial Owner shall be entitled to exercise prior to the delivery of the Conversion Shares to it in accordance with the procedures set forth under Section 4.03.

(g) The Company’s calculation of its Group CET1 Capital, Group Total Risk Exposure Amount and Group CET1 Ratio, as well as any Trigger Event Officers’ Certificate delivered to the Trustee, shall be binding on the Trustee and the Holders and Beneficial Owners of the Securities.

Section 4.02 Conversion Shares.

(a) The number of Conversion Shares to be issued to the Conversion Shares Depository on the Conversion Date shall equal the quotient obtained by dividing the (i) aggregate principal amount of the Securities Outstanding immediately prior to the Conversion on the Conversion Date by (ii) the Conversion Price rounded down, if necessary, to the nearest whole number of Conversion Shares. Fractions of Conversion Shares shall not be issued following a Conversion and no cash payment shall be made in lieu thereof. The number of Conversion Shares to be held by the Conversion Shares Depository for the benefit of each Holder shall equal the quotient obtained by dividing (i) the number of Conversion Shares thus calculated by (ii) the Tradable Amount of the book-entry interests in the Securities held by such Holder on the Conversion Date rounded down, if necessary, to the nearest whole number of Conversion Shares.

(b) The Conversion Shares issued following a Conversion shall be fully paid and non-assessable and shall in all respects rank pari passu with the fully paid Ordinary Shares in issue on the Conversion Date, except in any such case for any right excluded by mandatory provisions of applicable law, and except that the Conversion Shares so issued shall not rank for (or, as the case may be, the relevant Holder or Beneficial Owner shall not be entitled to receive) any rights, the entitlement to which falls prior to the Conversion Date.

(c) If the Company has an ADS Depositary Facility in effect on the Conversion Date, the Conversion Shares Depositary shall deposit with the ADS Depositary any Conversion Shares in respect of which any Holder or Beneficial Owner elects to receive ADSs pursuant to a validly completed Conversion Shares Settlement Notice on the applicable Settlement Date and shall cause the ADS Depositary to issue the corresponding number of ADSs to such Holder or Beneficial Owner in accordance with its applicable procedures, including with respect to the payment of any applicable fees and expenses

 

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of the ADS Depositary. The obligation to deliver ADSs if a Holder or Beneficial Owner elects to have its Conversion Shares delivered in such form will apply only if at the time of Conversion the Issuer continues to maintain an ADS Depositary Facility. The delivery of the Conversion Shares to the ADS Depositary shall be deemed for all purposes to constitute the delivery of the Conversion Shares to any such Holder or Beneficial Owner of Securities.

(d) The procedures set forth in Sections 4.01 and 4.02 are subject to change to reflect changes in DTC practices, and the Company may make changes to the procedures set forth in Sections 4.01 and 4.02 to the extent reasonably necessary, in the opinion of the Company, to reflect such changes in DTC practices.

Section 4.03 Settlement Procedure.

(a) Delivery of the Conversion Shares to the Holders and Beneficial Owners of the Securities shall be made in accordance with the procedures set forth in this Section 4.03.

(b) No Holder or Beneficial Owner (or the custodian, nominee, broker or other representative thereof) shall receive delivery of the relevant Conversion Shares unless such Holder or Beneficial Owner (or the custodian, nominee, broker or other representative thereof) unless the Conversion Shares Depository shall have received its Conversion Shares Settlement Notice (and, if required, the Securities to which it relates) on or before the Notice Cut-Off Date. Any notice or Securities received after the end of normal business hours at the specified office of the Conversion Shares Depository shall be deemed received on the following Business Day.

(c) If the outstanding Securities are then issued in the form of Global Securities, no Conversion Shares Settlement Notice shall be valid unless given in accordance with the applicable procedures of the Depositary and in a form acceptable to it. If the outstanding Securities are then issued in definitive form, no Conversion Shares Settlement Notice shall be valid for any purpose unless the Conversion Shares Depositary shall have received the Securities to which it relates, duly endorsed to the Conversion Shares Depositary. Each Conversion Shares Settlement Notice must be given in a form acceptable to the Conversion Shares Depositary.

(d) Subject to satisfaction of the requirements and limitations set forth in this Section 4.03 and provided that the Conversion Shares Settlement Notice and the relevant Securities, if applicable, are delivered on or before the Notice Cut-Off Date, the Conversion Shares Depository shall deliver the relevant Conversion Shares (rounded down to the nearest whole number of Conversion Shares) to the Holder or Beneficial Owner (or custodian, nominee, broker or other representative thereof) of the relevant Securities completing the relevant Conversion Shares Settlement Notice in accordance with the instructions given in such Conversion Shares Settlement Notice on the applicable Settlement Date.

(e) Each Conversion Shares Settlement Notice shall be irrevocable. The Conversion Shares Depository shall determine, in its sole and absolute discretion, whether any Conversion Shares Settlement Notice has been properly completed and delivered, and such determination shall be conclusive and binding on the relevant Holder or Beneficial Owner. If any Holder or Beneficial Owner fails to properly complete and deliver a Conversion Shares Settlement Notice and the relevant Securities, if applicable, prior to the Notice Cut-Off Date, the Conversion Shares Depository shall be entitled to treat such Conversion Shares Settlement Notice as null and void.

(f) Each Security shall be cancelled on the applicable Cancellation Date.

 

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(g) Neither the Company, nor any member of the Group, shall be liable for any taxes or capital, stamp, issue and registration or transfer taxes or duties arising on Conversion or that may arise or be paid as a consequence of the issue and delivery of Conversion Shares Conversion (other than any taxes due by the Company or any member of the Group according to the Dutch Corporate Income Tax Act 1969 (Wet op de vennootschapsbelasting 1969), which tax shall be borne solely by the Holder, Beneficial Owner or, if different, the person to whom the Conversion Shares are delivered.

Section 4.04 Failure to Deliver a Conversion Shares Settlement Notice. The Conversion Shares Depositary shall continue to hold all Conversion Shares for which it has not received a valid Conversion Settlement Notice (and the related Securities, if applicable) on or prior to the Notice Cut-Off Date until the Final Cancellation Date. Any Holder or Beneficial Owner (or custodian, nominee, broker or other representative thereof) of Securities delivering a Conversion Shares Settlement Notice after the Notice Cut-Off Date shall be required to provide evidence of its entitlement to the relevant Conversion Shares, satisfactory to the Conversion Shares Depository in its sole and absolute discretion, in order to receive delivery of such Conversion Shares. The Company shall have no liability to any Holder or Beneficial Owner of the Securities for any loss resulting from such Holder’s or Beneficial Owner’s failure to receive any Conversion Shares, or from any delay in the receipt thereof, in each case as a result of such Holder or Beneficial Owner (or custodian, nominee, broker or other representative thereof) failing to duly submit a valid Conversion Shares Settlement Notice and the relevant Securities, if applicable, on a timely basis or at all.

Section 4.05 Adjustment of Floor Price.

(a) The Floor Price shall be subject to adjustment as set forth in Annex I (Anti-Dilution Provisions).

(b) There shall at all times any Securities are Outstanding be a conversion calculation agent (the “Conversion Calculation Agent”), which may be the Company or another Person appointed by the Company to serve in such capacity, who shall be responsible in consultation with the Company for the calculation of all adjustments to the Floor Price to be made pursuant to Annex I (Anti-Dilution Provisions) and all determinations required to be made pursuant thereto. Determinations, calculations and adjustments performed by the Conversion Calculation Agent pursuant to this Section 4.05(b) shall be final and binding (in the absence of bad faith or manifest error) on Holders and Beneficial Owners of the Securities. To the extent Annex I (Anti-Dilution Provisions) at any time calls for any calculation or determination to be made by an Independent Financial Adviser, if the Person then serving as Conversion Calculation Agent is not wholly independent of the Company, the Company shall use commercially reasonable efforts to appoint an Independent Financial Adviser to make such calculation or determination. A written opinion of such Independent Financial Adviser in respect of such calculation or determination shall be conclusive and binding on the Company and the Holders and Beneficial Owners, save in the case of manifest error.

(c) The Company shall give notice of any adjustments to the Floor Price to the Holders of the Securities, with a copy to the Trustee, and if the Securities are then held in the form of Global Securities shall cause the Depositary to deliver such notice to its participants in accordance with its applicable procedures.

 

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Section 4.06 Covenants Relating to Conversion Shares.

(a) For so long as any Security remains Outstanding, the Company shall:

 

  (i) not make any issue, grant or distribution or take or omit to take any other action if the effect thereof would be that, on Conversion, Ordinary Shares could not, under any applicable law then in effect, be legally issued as fully paid;

 

  (ii) if any offer is made to all (or as nearly as may be practicable all) shareholders (or all (or as nearly as may be practicable all) such shareholders other than the offeror and/or any associates of the offeror) to acquire all or a majority of the issued Ordinary Shares, or if a scheme is proposed with regard to such acquisition, give notice of such offer or scheme to each Holder of any Securities at the same time as any notice thereof is sent to the shareholders (or as soon as practicable thereafter) that details concerning such offer or scheme may be obtained from the specified offices of the Trustee;

 

  (iii) use commercially reasonable efforts to ensure that the Ordinary Shares issued upon Conversion shall be admitted to listing and trading on the Relevant Stock Exchange;

 

  (iv) maintain all corporate authorizations necessary to issue and allot at all times sufficient Ordinary Shares, free from pre-emptive or other preferential rights, to enable Conversion of the Securities to be satisfied in full;

 

  (v) use commercially reasonable efforts promptly to appoint a Conversion Shares Depositary as soon as practicable following the occurrence of a Trigger Event; and

 

  (vi) If, at the time of a Conversion the Issuer has an ADS Depositary Facility in effect, the Company shall ensure that it has sufficient capacity under its then effective registration statement on Form F-6 (or successor form) to cause the ADS Depositary to issue the number of ADSs corresponding to the number of ADSs that Holders and Beneficial Owners have elected to receive pursuant to Section 4.02(c).

(b) The Company shall not be required to comply with any obligation set forth in Section 4.06(a)(i) if its compliance with such obligation would violate the Capital Regulations or (ii) to the extent that such compliance would cause a Regulatory Event to occur.

ARTICLE V

DUTCH BAIL-IN POWER

Section 5.01 Agreement with Respect to Exercise of Dutch Bail-In Power.

(a) By acquiring any Securities, each Holder and Beneficial Owner of the Securities or any interest therein acknowledges, agrees to be bound by and consents to the exercise of any Dutch Bail-In Power by the Relevant Resolution Authority that may result in the cancellation of all, or a portion, of the principal amount of, or interest on, the Securities and/or the conversion of all, or a portion of, the principal amount of, or interest on, the Securities into shares or other securities or other obligations of the Company or another person, including by means of a variation to the terms of the Securities or any expropriation of the Securities, in each case to give effect to the exercise by the Relevant Resolution Authority of such Dutch Bail-In Power. Each Holder and Beneficial Owner of the Securities or any interest therein further acknowledges and agrees that the rights of Holders and Beneficial Owners of the

 

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Securities are subject to, and will be varied, if necessary, so as to give effect to, the exercise of any Dutch Bail-In Power by the Relevant Resolution Authority. For the avoidance of doubt, the potential conversion of the Securities into shares, other securities or other obligations in connection with the exercise of any Dutch Bail-In Power by the Relevant Resolution Authority is separate and distinct from a Conversion following a Trigger Event. In addition, by acquiring any Securities, each Holder and Beneficial Owner of the Securities or any interest therein further acknowledges, agrees to be bound by, and consents to the exercise by the Relevant Resolution Authority of any power to suspend any payment in respect of the Securities for a temporary period.

(b) No repayment of the principal amount of the Securities or payment of interest on the Securities shall be come due and payable after the exercise of any Dutch Bail-In Power by the Relevant Resolution Authority unless such repayment or payment would be permitted to be made by the Company under the laws and regulations of The Netherlands and the European Union applicable to the Company.

(c) Upon the exercise of the Dutch Bail-In Power by the Relevant Resolution Authority with respect to the Securities, the Company shall provide a written notice of such event to DTC (if the Securities are then held by DTC in the form of Global Securities) for the purposes of notifying Holders of Securities of such occurrence, with a copy to the Trustee for information purposes, as soon as practicable regarding such exercise of the Dutch Bail-In Power.

(d) Holders or Beneficial Owners of Securities that acquire them in the secondary market shall be deemed to acknowledge, agree to be bound by and consent to the same provisions specified herein to the same extent as the Holders or Beneficial Owners of the Securities that acquire the Securities upon their initial issuance, including, without limitation, with respect to the acknowledgement and agreement to be bound by and consent to the terms of the Securities, including in relation to interest cancellation, the Conversion, the Dutch Bail-in Power and the limitations on remedies specified in Article VI hereof.

ARTICLE VI

DEFAULTS AND REMEDIES

The following provisions shall apply to the Securities in lieu of Sections 5.01 and 5.02 and in addition to the other provisions set forth in Article 5 of the Base Indenture:

Section 6.01 Liquidation Event. A Liquidation Event occurring prior to the occurrence of a Trigger Event shall be the sole Event of Default with respect to the Securities. The principal amount of the Securities shall become immediately due and payable upon an Event of Default with respect to the Securities, without the need of any further action on the part of the Trustee, the Holders or any other Person.

Section 6.02 Failure to Pay Principal Amount. Any Holder of a Security (or the Trustee acting on behalf of all Holders of the Securities) may demand payment of the principal amount of the Securities upon a Payment Default. The Trustee may, at its discretion, in such event institute bankruptcy proceedings in The Netherlands (or such other jurisdiction in which the Company may be organized) (but not elsewhere) against the Company and/or prove in a bankruptcy or liquidation of the Company and/or claim in a liquidation or administration of the Company.

 

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Section 6.03 Performance Obligations. The Trustee may without further notice institute such proceedings against the Company as it may deem fit to enforce or seek damages for the breach of any Performance Obligation.

Section 6.04 No Other Remedies and Other Terms.

(a) Other than the limited remedies specified in this Article VI, and subject to Section 6.04(c), no remedy against the Company shall be available to the Trustee (acting on behalf of the Holders) or to any Holder or Beneficial Owner, whether for the recovery of amounts owing in respect of such Securities or under the Indenture, or in respect of any breach by the Company of any of the Company’s obligations under or in respect of the terms of such Securities or under the Indenture in relation thereto; provided that the Company’s obligations to the Trustee under Section 6.07 of the Base Indenture and the Trustee’s rights to have money collected applied first to pay amounts due to it under such Section pursuant to Section 5.06 of the Base Indenture expressly survive any Default and are not subject to the subordination provisions of Article VII of this Second Supplemental Indenture.

(b) In the case of a Default under the Securities, the Trustee shall exercise such of the rights and powers vested in it by the Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs. For purposes of the Base Indenture, “Event of Default” in respect of the Securities shall mean “Default” as defined in this Second Supplemental Indenture, except that the term “Event of Default” as used in Section 3.05(b)(ii) of the Base Indenture and Article 8 of the Base Indenture shall mean “Liquidation Event.”

(c) Notwithstanding the limitations on remedies specified under Article VI, (i) the Trustee shall have such powers as are required to be authorized to it under the Trust Indenture Act in respect of the rights of the Holders and Beneficial Owners of the Securities under the provisions of the Indenture, and (ii) nothing shall impair the right of a Holder or Beneficial Owner of the Securities under the Trust Indenture Act, absent such Holder’s or Beneficial Owner’s consent, to sue for any payment due but unpaid with respect to the Securities; provided that, in the case of (i) and (ii) above, any payments in respect of, or arising from, the Securities, including any payments or amounts resulting or arising from the enforcement of any rights under the Trust Indenture Act in respect of the Securities, shall be subject to the subordination provisions set forth in Section 7.01 of this Second Supplemental Indenture.

Section 6.05 Waiver of Past Defaults.

(a) Holders of not less than a majority in aggregate principal amount of the Outstanding Securities may on behalf of the Holders of all of the Securities waive any past Default that results from a breach by the Company of a Performance Obligation. Holders of a majority of the aggregate principal amount of the Outstanding Securities shall not be entitled to waive any past default that results from a Liquidation Event or a Non-Payment Event.

(b) Upon the occurrence of any waiver permitted by Section 6.05(a), such Default shall cease to exist, and any Default with respect to any series arising therefrom shall be deemed to have been cured and not to have occurred for every purpose of the Base Indenture, but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.

 

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ARTICLE VII

SUBORDINATION AND SET-OFF

Section 7.01 Subordination.

(a) The Securities shall constitute the Company’s direct, unsecured and subordinated obligations, ranking equally without any preference among themselves. The rights and claims of the Holders and Beneficial Owners of the Securities in respect of or arising from the Securities shall be subordinated to the claims of holders of Senior Instruments.

(b) If a Liquidation Event occurs prior to a Trigger Event, the Securities shall be subordinated to Senior Instruments, and rank pari passu with all Parity Instruments. By virtue of such subordination, any payments to the holders of the Securities upon any Liquidation Event shall only be made after all payment obligations of the Company in respect of Senior Instruments have been satisfied. The amount of any claim in respect of each Security shall be its principal amount.

(c) If a Liquidation Event occurs after a Trigger Event but before the Conversion Shares deliverable upon Conversion are issued and delivered pursuant to Section 4.01, each Holder or Beneficial Owner of a Security shall have a claim, in lieu of any other payment by the Company, for the amount, if any, it would have been entitled to receive if the Conversion relating to such Trigger Event and the relevant number of Conversion Shares to which such holder would have been entitled had been delivered to such holder had occurred immediately prior to the Liquidation Event.

Section 7.02 No Set-Off. Subject to applicable law, neither any no Holder or Beneficial Owner of Securities, nor the Trustee acting on their behalf, may exercise, claim or plead any right of set-off, compensation or retention in respect of any amount owed to it by the Company in respect of or arising under, or in connection with, the Securities or the Indenture and each Holder and Beneficial Owner of Securities, by virtue of its holding of any Securities, and the Trustee acting on their behalf, shall be deemed to have waived all such rights of set-off, compensation or retention. If notwithstanding the foregoing any amounts due and payable to any Holder or Beneficial Owner of Securities by the Company in respect of, or arising under, the Securities are discharged by set-off, such Holder or Beneficial Owner shall, subject to applicable law, immediately pay an amount equal to the amount of such discharge to the Company (or, if a Liquidation Event shall have occurred, the liquidator or administrator of the Company, as the case may be) and, until such time as payment is made, shall hold an amount equal to such amount in trust or otherwise for the Company (or the liquidator or administrator of the Company, as the case may be) and, accordingly, any such discharge shall be deemed not to have taken place. The foregoing shall not prevent any set-off in order to give effect to a Conversion.

ARTICLE VIII

ADDITIONAL TRUSTEE PROTECTIONS

Section 8.01 Conversion. Notwithstanding anything to the contrary contained in the Indenture or the Securities,

(a) once the Company has delivered a Conversion Notice, (i) no Holder or Beneficial Owner of a Security shall have any rights whatsoever under the Indenture or the Securities to instruct or direct the Trustee to take any action whatsoever and (ii) as of the date of the Conversion Notice, except for any indemnity and/or security provided by any Holder or by any Beneficial Owner in such direction or related to such direction, any direction previously given to the Trustee by any Holders or by any

 

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Beneficial Owners shall cease automatically and shall be null and void and of no further effect; except in each case of (i) and (ii) of this Section 8.01, with respect to any rights of Holders or Beneficial Owners with respect to any payments under the Securities that were unconditionally due and payable prior to the date of the Conversion Notice or unless the Trustee is instructed in writing by the Company to act otherwise;

(b) the Trustee shall be entitled to conclusively rely on and accept a Trigger Event Officers’ Certificate without any duty whatsoever of further inquiry as sufficient and conclusive evidence of the occurrence of a Trigger Event, and such Trigger Event Officers’ Certificate shall be conclusive and binding on the Trustee and each Holder and Beneficial Owner of any Security or interest therein; and

(c) the Trustee shall not be liable with respect to (i) the calculation or accuracy of the Group CET1 Capital, Group Total Risk Exposure Amount and Group CET1 Ratio in connection with the occurrence of a Trigger Event and the timing of such Trigger Event, (ii) the failure of the Company to provide any information whatsoever in respect of a Trigger Event to any Holder or Beneficial Owner of a Security, (iii) any aspect of the Company’s decision to deliver a Conversion Notice or the related Conversion or (iv) the adequacy of the disclosure of these provisions to any Holder or Beneficial Owner of any Security or any interest therein or for the direct or indirect consequences thereof.

Section 8.02 Indemnification by the Company. The Company’s obligations to indemnify the Trustee in accordance with Section 6.07 of the Base Indenture shall survive any exercise of the Dutch Bail-In Power by the Relevant Resolution Authority with respect to the Securities and any Conversion hereunder.

ARTICLE IX

ADDITIONAL ACKNOWLEDGEMENTS AND AGREEMENTS

OF HOLDERS AND BENEFICIAL OWNERS

By acquiring the Securities, each Holder and Beneficial Owner of a Security or any interest therein, including any Person acquiring any such Security or interest therein after the date hereof, acknowledges and agrees with and for the benefit of the Company and the Trustee as follows:

Section 9.01 Dutch Bail-In Power. Such Holder and Beneficial Owner of a Security or any interest therein:

(a) acknowledges and agrees that no exercise of the Dutch Bail-In Power by the Relevant Resolution Authority with respect to the Securities or cancellation or deemed cancellation of interest on the Securities pursuant to Sections 2.03 and 2.04 shall give rise to a default for purposes of Section 315(b) (Notice of Default) and Section 315(c) (Duties of the Trustee in Case of Default) of the Trust Indenture Act;

(b) to the extent permitted by the Trust Indenture Act, waives any and all claims against the Trustee for, agrees not to initiate a suit against the Trustee in respect of, and agrees that the Trustee shall not be liable for, any action that the Trustee takes, or abstains from taking, in either case in accordance with the exercise of the Dutch Bail-In Power by the Relevant Resolution Authority with respect to the Securities;

(c) acknowledges and agrees that, upon the exercise of any Dutch Bail-In Power by the Relevant Resolution Authority, (i) the Trustee shall not be required to take any further directions from Holders or Beneficial Owners of the Securities under Section 5.12 of the Base Indenture and (ii) the

 

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Indenture shall impose no duties upon the Trustee whatsoever with respect to the exercise of any Dutch Bail-In Power by the Relevant Resolution Authority. If Holders or Beneficial Owners of the Securities have given a direction to the Trustee pursuant to Section 5.12 of the Base Indenture prior to the exercise of any Dutch Bail-in Power by the Relevant Resolution Authority, such direction shall cease to be of further effect upon such exercise of any Dutch Bail-in Power and shall become null and void at such time. Notwithstanding the foregoing, if, following the completion of the exercise of the Dutch Bail-In Power by the Relevant Resolution Authority, the Securities remain outstanding, then the Trustee’s duties under the Indenture shall remain applicable with respect to the Securities following such completion to the extent that the Company and the Trustee shall agree pursuant to a supplemental indenture or an amendment to this Second Supplemental Indenture; and

(d) (i) consents to the exercise of any Dutch Bail-In Power as it may be imposed without any prior notice by the Relevant Resolution Authority of its decision to exercise such power with respect to the Securities and (ii) authorizes, directs and requests DTC and any direct participant in DTC or other intermediary through which it holds such Securities to take any and all necessary action, if required, to implement (x) the Conversion and (y) the exercise of any Dutch Bail-In Power with respect to the Securities as it may be imposed, without any further action or direction on the part of such Holder and such Beneficial Owner.

Section 9.02 Conversion Upon a Trigger Event. Such Holder or Beneficial Owner consents to the Conversion of its Securities following a Trigger Event, the appointment of the Conversion Shares Depository, and the issuance of the Conversion Shares to the Conversion Shares Depository, all of which may occur without any further action on the part of such Holder or Beneficial Owner or the Trustee, and following which no Holder or Beneficial Owner of any Securities will have any rights against the Company with respect to the payment of principal of, or interest on, such Securities. To the extent the Securities are held in the form of Global Securities, such Holder or Beneficial Owner authorizes, directs and requests the Depositary, any direct participant therein and any other intermediary through which it holds such Securities to take any and all necessary action, if required, to implement the Conversion without any further action or direction on the part of such Holder or Beneficial Owner or the Trustee. Upon a Trigger Event and Conversion, the principal amount of the Securities may be applied in such manner as the Company deems necessary in connection with the issue and paying up of the relevant Conversion Shares and the delivery thereof to the Conversion Shares Depositary or pursuant to any Alternative Delivery Arrangements.

Section 9.03 Interest Cancellation. Interest shall be payable on the Securities solely at the discretion of the Company, and no amount of interest shall become due and payable in respect of the relevant Interest Payment Date or related Interest Period or Redemption Date to the extent that it has been cancelled or deemed cancelled (in whole or in part) by the Company in its sole discretion and/or as a result of (i) the Company having insufficient Distributable Items, or (ii) the relevant interest payment’s causing the Maximum Distributable Amount to be exceeded. A cancellation or deemed cancellation of interest (in each case, in whole or in part) in accordance with the terms of the Indenture shall not constitute a default in payment or otherwise under the terms of the Securities.

Section 9.04 Waiver of Claims. Such Holder or Beneficial Owner unconditionally and irrevocably agrees to each and every provision of the Indenture and the Securities and waives, to the fullest extent permitted by the Trust Indenture Act and any other applicable law, any and all claims against the Trustee arising out of its acceptance of its trusteeship for the Securities, including, without limitation, claims related to or arising out of or in connection with a Trigger Event and/or any Conversion.

 

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Section 9.05 Successors and Assigns. All authority conferred or agreed to be conferred by any Holder or Beneficial Owner pursuant to this Article IX shall be binding upon the successors, assigns, heirs, executors, administrators, trustees in bankruptcy and legal representatives of such Holder or Beneficial Owner.

ARTICLE X

MISCELLANEOUS PROVISIONS

Section 10.01 Effectiveness. This Second Supplemental Indenture shall become effective upon its execution and delivery.

Section 10.02 Modification.

(a) Without the consent of any Holders, the Company and the Trustee may make such modifications to the provisions of Sections 4.01 and 4.03 and Exhibits B and C as are reasonably necessary, in the opinion of the Company, to reflect the procedures of the Depositary in effect at the time of any Conversion or issuance of the Securities in definitive form and the requirements of the Conversion Shares Depositary.

(b) Any modification to or waiver of Section 4.06 shall require the consent of the holders of at least 75% in principal amount of the Outstanding Securities.

(c) Any amendment or modification of the Securities (or of the Indenture with respect to the Securities) shall be subject to the Company obtaining the prior written consent of the Relevant Regulator.

(d) The Company may not amend Section 7.01 to alter the subordination of any outstanding Securities without the consent of each holder of any Senior Instrument then outstanding who would be adversely affected.

(e) The Company may not amend Section 7.01 in a manner that would adversely affect the other Capital Securities of any one or more series then outstanding in any material respect, without the consent of the holders of a majority in aggregate principal amount of all affected series then outstanding, voting together as one class (and also of any affected series that by its terms is entitled to vote separately as a series).

Section 10.03 Original Issue. The Securities may, upon execution of this Second Supplemental Indenture, be executed by the Company and delivered by the Company to the Trustee for authentication, and the Trustee shall, upon delivery of a Company Order, authenticate and deliver such Securities as in such Company Order provided.

Section 10.04 Ratification and Integral Part. The Base Indenture as supplemented by this Second Supplemental Indenture, is in all respects ratified and confirmed, including without limitation all the rights, immunities and indemnities of the Trustee, and this Second Supplemental Indenture shall be deemed an integral part of the Base Indenture in the manner and to the extent herein and therein provided.

Section 10.05 Priority. This Second Supplemental Indenture shall be deemed part of the Base Indenture in the manner and to the extent herein and therein provided. The provisions of this Second Supplemental Indenture shall, with respect to the Securities and subject to the terms hereof, supersede the provisions of the Base Indenture to the extent the Base Indenture is inconsistent herewith.

 

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Section 10.06 Successors and Assigns. All covenants and agreements in the Base Indenture, as supplemented and amended by this Second Supplemental Indenture, by the Company shall bind its successors and assigns, whether so expressed or not.

Section 10.07 Counterparts. This Second Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.

Section 10.08 Governing Law. This Second Supplemental Indenture and the Securities shall be governed by and construed in accordance with the laws of the State of New York, except for the subordination provisions and the waiver of set-off provisions in Article VII, which are governed by, and construed in accordance with, Dutch law.

 

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IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be duly executed, all as of the day and year first above written.

 

ING GROEP N.V.
By:

/s/ J.D. Wolvius

Name: J.D. Wolvius
Title: Head of Capital Management
By:

/s/ P.G. van der Linde

Name: P.G. van der Linde
Title: Senior Legal Counsel
THE BANK OF NEW YORK MELLON, LONDON
BRANCH, AS TRUSTEE
By:

/s/ Paul Cattermole

Name: Paul Cattermole
Title:   Vice President

Signature Page to the Second Supplemental Indenture


Annex I

 

Anti-Dilution Provisions

Adjustment of Floor Price

Upon the happening of any of the events described below, the Floor Price shall be adjusted as follows:

 

  (i) If and whenever there shall be a consolidation, reclassification/redesignation or subdivision affecting the number of ordinary shares, the Floor Price shall be adjusted by multiplying the Floor Price in force immediately prior to such consolidation, reclassification/redesignation or subdivision by the following fraction:

A

B

where:

 

  A is the aggregate number of ordinary shares in issue immediately before such consolidation, reclassification/redesignation or subdivision, as the case may be; and

 

  B is the aggregate number of ordinary shares in issue immediately after, and as a result of, such consolidation, reclassification/redesignation or subdivision, as the case may be.

Such adjustment shall become effective on the date the consolidation, reclassification/redesignation or subdivision, as the case may be, takes effect.

 

  (ii) If and whenever the Company shall issue any of its ordinary shares credited as fully paid to the Company’s shareholders by way of capitalization of profits or reserves (including any share premium account or capital redemption reserve) other than (1) where any such ordinary shares are or are to be issued instead of the whole or part of a Cash Dividend which the Shareholders would or could otherwise have elected to receive, (2) where the Company’s shareholders may elect to receive a Cash Dividend in lieu of such ordinary shares or (3) where any such ordinary shares are or are expressed to be issued in lieu of a Dividend (whether or not a Cash Dividend equivalent or amount is announced or would otherwise be payable to Shareholders, whether at their election or otherwise), the Floor Price shall be adjusted by multiplying the Floor Price in force immediately prior to such issue by the following fraction:

A

B

where:

 

  A is the aggregate number of ordinary shares in issue immediately before such issue; and

 

  B is the aggregate number of ordinary shares in issue immediately after such issue.

Such adjustment shall become effective on the first date of issue of such ordinary shares.

 

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Annex I

 

    (iii)

 

  (A) If and whenever the Company shall pay any Extraordinary Dividend to its shareholders, the Floor Price shall be adjusted by multiplying the Floor Price in force immediately prior to the Effective Date by the following fraction:

AB

AC

where:

 

  A is the Current Market Price of one ordinary share on the Effective Date;

 

  B is the portion of the Fair Market Value of the aggregate Extraordinary Dividend attributable to one ordinary share, with such portion being determined by dividing the Fair Market Value of the aggregate Extraordinary Dividend by the number of ordinary shares entitled to receive the relevant Dividend; and

 

  C is an amount equal to:

 

  (a) in the case of an Extraordinary Dividend falling under part (i) of the definition of Extraordinary Dividend, zero; or,

 

  (b) in the case of an Extraordinary Dividend falling under part (ii) of the definition of Extraordinary Dividend, the amount (if any) by which the Reference Amount in respect of the Relevant Year exceeds an amount equal to the aggregate of the Fair Market Values of any previous Cash Dividends (other than any Cash Dividends falling under part (i) of the definition of Extraordinary Dividend) per ordinary share of the Company paid or made in respect of such Relevant Year (where C shall equal zero if such previous Cash Dividends per ordinary share of the Company are equal to, or exceed, the Reference Amount in respect of the Relevant Year). For the avoidance of doubt, “C” shall equal the Reference Amount determined in respect of the Relevant Year where no previous Cash Dividends (other than any Cash Dividends falling under part (i) of the definition of Extraordinary Dividend) per ordinary share of the Company have been paid or made in respect of such Relevant Year.

Such adjustment shall become effective on the Effective Date or, if later, the first date upon which the Fair Market Value of the relevant Extraordinary Dividend can be determined.

Effective Date” means, for purposes of this paragraph (iii)(A), the first date on which the ordinary shares are traded ex-the relevant Cash Dividend on the Relevant Stock Exchange.

 

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Annex I

 

  (B) If and whenever the Company shall pay or make any Non-Cash Dividend to its shareholders, the Floor Price shall be adjusted by multiplying the Floor Price in force immediately prior to the Effective Date by the following fraction:

A – B

    A

where:

 

  A is the Current Market Price of one ordinary share on the Effective Date; and

 

  B is the portion of the Fair Market Value of the aggregate Non-Cash Dividend attributable to one ordinary share, with such portion being determined by dividing the Fair Market Value of the aggregate Non-Cash Dividend by the number of ordinary shares entitled to receive the relevant Non-Cash Dividend (or, in the case of a purchase, redemption or buy back of ordinary shares or any depositary or other receipts or certificates representing ordinary shares by or on behalf of the Company or any member of the Group, by the number of ordinary shares in issue immediately following such purchase, redemption or buy back, and treating as not being in issue any ordinary shares, or any ordinary shares represented by depositary or other receipts or certificates, purchased, redeemed or bought back).

Such adjustment shall become effective on the Effective Date or, if later, the first date upon which the Fair Market Value of the relevant Non-Cash Dividend can be determined as provided herein.

Effective Date” means, for purposes of this paragraph (iii)(B), the first date on which the ordinary shares are traded ex-the relevant Dividend on the Relevant Stock Exchange or, in the case of a purchase, redemption or buy back of ordinary shares or any depositary or other receipts or certificates representing ordinary shares by or on behalf of the Company or any member of the Group, the date on which such purchase, redemption or buy back is made (or, in any such case if later, the first date upon which the Fair Market Value of the relevant Dividend is capable of being determined as provided herein) or in the case of a Spin-Off, the first date on which the ordinary shares are traded ex-the relevant Spin-Off on the Relevant Stock Exchange.

 

  (C) For the purposes of this paragraph (iii), Fair Market Value shall (subject as provided in paragraph (a) of the definition of “Dividend” and in the definition of “Fair Market Value”) be determined as at the Effective Date.

 

  (D) In making any calculations for the purposes of this paragraph (iii), such adjustments (if any) shall be made as an Independent Financial Adviser may determine in good faith to be appropriate to reflect (i) any consolidation or sub-division of any ordinary shares or (ii) the issue of ordinary shares by way of capitalization of profits or reserves (or any like or similar event) or (iii) any increase in the number of ordinary shares in issue in the Relevant Year in question.

 

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Annex I

 

  (iv) If and whenever the Company shall issue ordinary shares to shareholders as a class by way of rights, or the Company or any member of the Group or (at the direction or request or pursuant to any arrangements with the Company or any member of the Group) any other company, person or entity shall issue or grant to shareholders as a class by way of rights, any options, warrants or other rights to subscribe for or purchase or otherwise acquire any ordinary shares, or any securities which by their terms of issue carry (directly or indirectly) rights of conversion into, or exchange or subscription for, or the right to acquire, any ordinary shares (or shall grant any such rights in respect of existing securities so issued), in each case at a price per ordinary share which is less than 95% of the Current Market Price per ordinary share on the Effective Date, the Floor Price shall be adjusted by multiplying the Floor Price in force immediately prior to the Effective Date by the following fraction:

A + B

A + C

where:

 

  A is the number of ordinary shares in issue on the Effective Date;

 

  B is the number of ordinary shares which the aggregate consideration (if any) receivable for the ordinary shares issued by way of rights, or for the securities issued by way of rights, or for the options or warrants or other rights issued or granted by way of rights and for the total number of ordinary shares deliverable on the exercise thereof, would purchase at such Current Market Price per ordinary share; and

 

  C is the number of ordinary shares to be issued or, as the case may be, the maximum number of ordinary shares which may be issued upon exercise of such options, warrants or rights calculated as at the date of issue of such options, warrants or rights or upon conversion or exchange or exercise of rights of subscription or purchase or other rights of acquisition in respect thereof at the initial conversion, exchange, subscription, purchase or acquisition price or rate,

provided that if on the Effective Date such number of ordinary shares is to be determined by reference to the application of a formula or other variable feature or the occurrence of any event at some subsequent time, then for the purposes of this paragraph (iv), “C” shall be determined by the application of such formula or variable feature or as if the relevant event occurs or had occurred as at the Effective Date and as if such conversion, exchange, subscription, purchase or acquisition had taken place on the Effective Date.

Such adjustment shall become effective on the Effective Date.

Effective Date” means, for purposes of this paragraph (iv), the first date on which the ordinary shares are traded ex-rights, ex-options or ex-warrants on the Relevant Stock Exchange.

 

  (v)

If and whenever the Company or any member of the Group or (at the direction or request or pursuant to any arrangements with the Company or any member of the Group) any other company, person or entity shall issue any securities (other than ordinary shares or options, warrants or other rights to subscribe for or purchase or otherwise acquire any

 

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Annex I

 

  ordinary shares or securities which by their terms carry (directly or indirectly) rights of conversion into, or exchange or subscription for, or rights to otherwise acquire, ordinary shares) to shareholders as a class by way of rights or grant to shareholders as a class by way of rights any options, warrants or other rights to subscribe for or purchase or otherwise acquire any securities (other than ordinary shares or options, warrants or other rights to subscribe for or purchase or otherwise acquire ordinary shares or securities which by their term carry (directly or indirectly) rights of conversion into, or exchange or subscription for, rights to otherwise acquire, ordinary shares), the Floor Price shall be adjusted by multiplying the Floor Price in force immediately prior to the Effective Date by the following fraction:

A–B

  A

where:

 

  A is the Current Market Price of one ordinary share on the Effective Date; and

 

  B is the Fair Market Value on the Effective Date of the portion of the rights attributable to one ordinary share.

Such adjustment shall become effective on the Effective Date.

Effective Date” means, for purposes of this paragraph (v), the first date on which the ordinary shares are traded ex-the relevant securities or ex-rights, ex-option or ex-warrants on the Relevant Stock Exchange.

 

  (vi) If and whenever the Company shall issue (otherwise than as mentioned in paragraph (iv) above) wholly for cash or for no consideration any ordinary shares (other than ordinary shares issued on conversion of the Securities or on the exercise of any rights of conversion into, or exchange or subscription for or purchase of, or right to otherwise acquire ordinary shares) or if and whenever the Company or any member of the Group or (at the direction or request or pursuance to any arrangements with the Company or any member of the Group) any other company, person or entity shall issue or grant (otherwise than as mentioned in paragraph (iv) above) wholly for cash or for no consideration any options, warrants or other rights to subscribe for or purchase or otherwise acquire any ordinary shares (other than the Securities or any Further Capital Securities), in each case at a price per ordinary share which is less than 95% of the Current Market Price per ordinary share on the date of the first public announcement of the terms of such issue or grant, the Floor Price shall be adjusted by multiplying the Floor Price in force immediately prior to the Effective Date by the following fraction:

A + B

A + C

where:

 

  A is the number of ordinary shares in issue immediately before the issue of such ordinary shares or the grant of such options, warrants or rights;

 

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Annex I

 

  B is the number of ordinary shares which the aggregate consideration (if any) receivable for the issue of such ordinary shares or, as the case may be, for the ordinary shares to be issued or otherwise made available upon the exercise of any such options, warrants or rights, would purchase at such Current Market Price per ordinary share; and

 

  C is the number of ordinary shares to be issued pursuant to such issue of such ordinary shares or, as the case may be, the maximum number of ordinary shares which may be issued upon exercise of such options, warrants or rights calculated as at the date of issue of such options, warrants or rights,

provided that if on the Effective Date such number of ordinary shares is to be determined by reference to the application of a formula or other variable feature or the occurrence of any event at some subsequent time, then for the purposes of this paragraph (vi), “C” shall be determined by the application of such formula or variable feature or as if the relevant event occurs or had occurred as at the Effective Date and as if such conversion, exchange, subscription, purchase or acquisition had taken place on the Effective Date.

Such adjustment shall become effective on the Effective Date.

Effective Date” means, for purposes of this paragraph (vi), the date of issue of such ordinary shares or, as the case may be, the grant of such options, warrants or rights.

 

  (vii) If and whenever the Company or any member of the Group or (at the direction or request of or pursuant to any arrangements with the Company or any member of the Group) any other company, person or entity (otherwise than as mentioned in paragraphs (iv) through (vi) above) shall issue wholly for cash or for no consideration any securities (other than the Securities or any Further Capital Securities) which by their terms of issue carry (directly or indirectly) rights of conversion into, or exchange or subscription for, purchase of, or rights to otherwise acquire, ordinary shares ordinary shares (or shall grant any such rights in respect of existing securities so issued) or securities which by their terms might be reclassified/redesignated as ordinary shares, and the price per ordinary share upon conversion, exchange, subscription, purchase, acquisition or redesignation is less than 95% of the Current Market Price per ordinary share on the date of the first public announcement of the terms of issue of such securities (or the terms of such grant), the Floor Price shall be adjusted by multiplying the Floor Price in force immediately prior to the Effective Date by the following fraction:

A + B

A + C

where:

 

  A is the number of ordinary shares in issue immediately before such issue or grant (but where the relevant securities carry rights of conversion into or rights of exchange or subscription for, purchase of, or rights to otherwise acquire ordinary shares which have been issued, purchased or acquired by the Company or any member of the Group (or at the direction or request or pursuant to any arrangements with the Company or any member of the Group) for the purposes of or in connection with such issue, less the number of such ordinary shares so issued, purchased or acquired);

 

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Annex I

 

  B is the number of ordinary shares which the aggregate consideration (if any) receivable for the ordinary shares to be issued or otherwise made available upon conversion or exchange or upon exercise of the right of subscription, purchase or acquisition attached to such securities or, as the case may be, for the ordinary shares to be issued or to arise from any such reclassification/redesignation would purchase at such Current Market Price per ordinary share; and

 

  C is the maximum number of ordinary shares to be issued or otherwise made available upon conversion or exchange of such securities or upon the exercise of such right of subscription attached thereto at the initial conversion, exchange, subscription, purchase or acquisition price or rate or, as the case may be, the maximum number of ordinary shares which may be issued or arise from any such reclassification/redesignation;

provided that if on the Effective Date such number of ordinary shares is to be determined by reference to the application of a formula or other variable feature or the occurrence of any event at some subsequent time (which may be when such securities are converted or exchanged or rights of subscription, purchase or acquisition are exercised or, as the case may be, such securities are reclassified/redesignated or at such other time as may be provided), then for the purposes of this paragraph (vii), “C” shall be determined by the application of such formula or variable feature or as if the relevant event occurs or had occurred as at the Effective Date and as if such conversion, exchange, subscription, purchase or acquisition or, as the case may be, reclassification/redesignation had taken place on the Effective Date.

Such adjustment shall become effective on the Effective Date.

Effective Date” means, for purposes of this paragraph (vii), the date of issue of such Securities or, as the case may be, the grant of such rights.

 

  (viii) If and whenever there shall be any modification of the rights of conversion, exchange, subscription, purchase or acquisition attaching to any securities (other than the Securities or any Further Capital Securities) as are mentioned in paragraph (vii) above (other than in accordance with the terms (including terms as to adjustment) applicable to such securities upon issue) so that following such modification the consideration per ordinary share has been reduced and is less than 95% of the Current Market Price per ordinary share on the date of the first public announcement of the proposals for such modification, the Floor Price shall be adjusted by multiplying the Floor Price in force immediately prior to the Effective Date by the following fraction:

A + B

A + C

where:

 

  A is the number of ordinary shares in issue immediately before such modification (but where the relevant securities carry rights of conversion into or rights of exchange or subscription for, or purchase or acquisition of, ordinary shares which have been issued, purchased or acquired by the Company or any member of the Group (or at the direction or request or pursuant to any arrangements with the Company or any member of the Group) for the purposes of or in connection with such securities, less the number of such ordinary shares so issued, purchased or acquired);

 

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Annex I

 

  B is the number of ordinary shares which the aggregate consideration (if any) receivable for the ordinary shares to be issued or otherwise made available upon conversion or exchange or upon exercise of the right of subscription, purchase or acquisition attached to the securities so modified would purchase at such Current Market Price per ordinary share or, if lower, the existing conversion, exchange, subscription, purchase or acquisition price or rate of such securities; and

 

  C is the maximum number of ordinary shares which may be issued or otherwise made available upon conversion or exchange of such securities or upon the exercise of such rights of subscription, purchase or acquisition attached thereto at the modified conversion, exchange, subscription, purchase or acquisition price or rate but giving credit in such manner as an Independent Financial Adviser in good faith shall consider appropriate for any previous adjustment under this paragraph (viii) or paragraph (vii) above;

provided that if on the Effective Date such number of ordinary shares is to be determined by reference to the application of a formula or other variable feature or the occurrence of any event at some subsequent time (which may be when such securities are converted or exchanged or rights of subscription, purchase or acquisition are exercised or at such other time as may be provided) then for the purposes of this paragraph (viii), “C” shall be determined by the application of such formula or variable feature or as if the relevant event occurs or had occurred as at the Effective Date and as if such conversion, exchange, subscription, purchase or acquisition had taken place on the Effective Date.

Such adjustment shall become effective on the Effective Date.

Effective Date” means, for purposes of this paragraph (viii), the date of modification of the rights of conversion, exchange, subscription, purchase or acquisition attaching to such securities.

 

  (ix) If and whenever the Company or any member of the Group or (at the direction or request of or pursuant to any arrangements with the Company or any member of the Group) any other company, person or entity shall offer any securities in connection with which shareholders as a class are entitled to participate in arrangements whereby such securities may be acquired by them (except where the Floor Price is required to be adjusted under paragraphs (ii) through (vi) above (or would be required to be so adjusted if the relevant issue or grant was at less than 95% of the Current Market Price per ordinary share on the relevant dealing day under paragraph (v) above)) the Floor Price shall be adjusted by multiplying the Floor Price in force immediately before the Effective Date by the following fraction:

A – B

    A

where:

 

  A is the Current Market Price of one ordinary share on the Effective Date; and

 

  B is the Fair Market Value on the Effective Date of the portion of the relevant offer attributable to one ordinary share.

 

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Annex I

 

Such adjustment shall become effective on the Effective Date.

Effective Date” means, for purposes of this paragraph (ix), the first date on which the ordinary shares are traded ex-rights on the Relevant Stock Exchange.

 

  (x) If the Company determines that a reduction to the Floor Price should be made for whatever reason, the Floor Price will be reduced (either generally or for a specified period as notified to Holders of the Securities) in such manner and with effect from such date as the Company shall determine and notify to the Holders of the Securities.

For the purpose of any calculation of the consideration receivable or price pursuant to paragraphs (iv) and (vi) – (viii), the following provisions shall apply:

 

  (i) the aggregate consideration receivable or price for ordinary shares issued for cash shall be the amount of such cash;

 

  (ii) (x) the aggregate consideration receivable or price for ordinary shares to be issued or otherwise made available upon the conversion or exchange of any securities shall be deemed to be the consideration or price received or receivable for any such securities and (y) the aggregate consideration receivable or price for ordinary shares to be issued or otherwise made available upon the exercise of rights of subscription attached to any securities or upon the exercise of any options, warrants or rights shall be deemed to be that part (which may be the whole) of the consideration or price received or receivable for such securities or, as the case may be, for such options, warrants or rights which are attributed by the Company to such rights of subscription or, as the case may be, such options, warrants or rights or, if no part of such consideration or price is so attributed, the Fair Market Value of such rights of subscription or, as the case may be, such options, warrants or rights as at the applicable Effective Date as described in paragraphs (iv) and (vi) – (viii) above, as the case may be plus in the case of each of (x) and (y) above, the additional minimum consideration receivable or price (if any) upon the conversion or exchange of such securities, or upon the exercise of such rights or subscription attached thereto or, as the case may be, upon exercise of such options, warrants or rights and (z) the consideration receivable or price per ordinary share upon the conversion or exchange of, or upon the exercise of such rights of subscription attached to, such securities or, as the case may be, upon the exercise of such options, warrants or rights shall be the aggregate consideration or price referred to in (x) or (y) above (as the case may be) divided by the number of ordinary shares to be issued upon such conversion or exchange or exercise at the initial conversion, exchange or subscription price or rate;

 

  (iii) if the consideration or price determined pursuant to clause (i) or (ii) above (or any component thereof) shall be expressed in a currency other than the Relevant Currency, it shall be converted into the Relevant Currency at the Prevailing Rate on the relevant Effective Date (in the case of clause (i) above) or the relevant date of first public announcement (in the case of clause (ii) above);

 

  (iv) in determining the consideration or price pursuant to the above, no deduction shall be made for any commissions or fees (howsoever described) or any expenses paid or incurred for any underwriting, placing or management of the issue of the relevant ordinary shares or securities or options, warrants or rights, or otherwise in connection therewith; and

 

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Annex I

 

  (v) the consideration or price shall be determined as provided above on the basis of the consideration or price received, receivable, paid or payable, regardless of whether all or part thereof is received, receivable, paid or payable by or to the Company or another entity

Notwithstanding the foregoing provisions:

 

  (A) where the events or circumstances giving rise to any adjustment pursuant to paragraphs (i) – (x) above have already resulted or will result in an adjustment to the Floor Price or where the events or circumstances giving rise to any adjustment arise by virtue of any other events or circumstances which have already given or will give rise to an adjustment to the Floor Price or where more than one event which gives rise to an adjustment to the Floor Price occurs within such a short period of time that, in the opinion of the Company, a modification to the operation of the adjustment provisions is required to give the intended result, such modification shall be made to the operation of the adjustment provisions as may be determined in good faith by an Independent Financial Adviser to be in its opinion appropriate to give the intended result;

 

  (B) such modification shall be made to the operation of the Indenture as may be determined in good faith by an Independent Financial Adviser to be in its opinion appropriate (i) to ensure that an adjustment to the Floor Price or the economic effect thereof shall not be taken into account more than once, (ii) to ensure that the economic effect of a Dividend is not taken into account more than once and (iii) to reflect a redenomination of the issued ordinary shares for the time being into a new currency;

 

  (C) for the avoidance of doubt, the issue of ordinary shares following a Conversion shall not result in an adjustment to the Floor Price;

 

  (D) no adjustment shall be made to the Floor Price where ordinary shares or any other securities (including rights, warrants and options) are issued, offered, exercised, allotted, purchased, appropriated, modified or granted to, or for the benefit of, employees or former employees (including directors holding or formerly holding executive office or the personal service company of any such person) or their spouses or relatives, in each case, of the Company or any of its Subsidiaries or any associated company or to a trustee or trustees to be held for the benefit of any such person, in any such case pursuant to any share or option scheme;

Record Date

If the record date in respect of any consolidation, reclassification/redesignation or sub-division as is mentioned in paragraph (i) under “— Adjustment of Floor Price” above, or the record date or other due date for the establishment of entitlement for any such issue, distribution, grant or offer (as the case may be) as is mentioned in paragraph (ii) – (v) or (ix) under “— Adjustment of Floor Price” above, or the date of the first public announcement of the terms of any such issue or grant as is mentioned in paragraphs (vi) and (vii) under “— Adjustment of Floor Price” above or of the terms of any such modification as is mentioned in paragraph (viii) under “— Adjustment of Floor Price” above, falls after

 

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Annex I

 

the date on which the Conversion Notice is given in relation to the Conversion but before such ordinary shares are issued, then the Company shall procure the execution of the corresponding adjustment mechanism under “— Adjustment of Floor Price” above so that the calculation of the number of Conversion Shares to be issued and delivered to the Conversion Shares Depository takes into account the Floor Price as so adjusted.

The Company shall not issue any additional Conversion Shares if the Conversion occurs after the record date in respect of any consolidation, reclassification or sub-division as is mentioned in paragraph (i) of “— Adjustment of Conversion Price and Conversion Shares Offer Price” above, or the record date or other due date for the establishment of entitlement for any such issue, distribution, grant or offer (as the case may be) as is mentioned in paragraph (ii) – (v) or (ix) under “— Adjustment of Floor Price” above, or the date of the first public announcement of the terms of any such issue or grant as is mentioned in paragraphs (vi) and (vii) under “— Adjustment of Floor Price” above or of the terms of any such modification as is mentioned in paragraph (viii) under “— Adjustment of Floor Price” above, but before the relevant adjustment to the relevant Price becomes effective under such section.

Conversion Calculation Agent and Independent Financial Adviser

So long as any Securities are outstanding, there shall at all times be a Conversion Calculation Agent, which may be the Company or another person appointed by the Company to serve in such capacity, who shall be responsible in consultation with the Company for the calculation of all adjustments to the Floor Price and all related determinations required to be made in connection therewith. All such calculations and determinations performed by the Conversion Calculation Agent shall be conclusive and binding on the Holders and beneficial owners of the Securities or any interest therein, save in the case of bad faith or manifest error. If any provision described herein under “Anti-Dilution Provisions” at any time calls for any calculation or determination to be made by an Independent Financial Adviser, which may include the Conversion Calculation Agent appointed by the Company to act in such Independent Financial Adviser capacity, if the person then serving as Conversion Calculation Agent is not wholly independent of the Company, the Company shall use commercially reasonable efforts to appoint an Independent Financial Adviser which is wholly independent of the Company to make such calculation or determination. A written opinion of such Independent Financial Adviser in respect of such calculation or determination shall be conclusive and binding on the Company and the Holders and Beneficial Owners of the Securities or any interest therein, save in the case of manifest error. The Company has appointed Conv-Ex Advisors Limited as the initial Conversion Calculation Agent. The Company may change the Conversion Calculation Agent at any time without prior notice to any Holder or Beneficial Owner of the Securities.

The Conversion Calculation Agent (if not the Company) shall act solely upon request from, and solely as agent of, the Company and will not thereby assume any obligations towards or relationship of agency or trust with, and it shall not be liable and shall incur no liability as against, the Holders of Securities.

Rounding Down and Notice of Adjustment to the Floor Price

On any adjustment, if the resultant Floor Price is not an integral multiple of $0.0001, it shall be rounded down to the nearest whole multiple of $0.0001. No adjustment shall be made to the Floor Price where such adjustment (rounded down if applicable) would be less than one per cent. of the Floor Price then in effect. Any adjustment not required to be made, and/or any amount by which the Floor Price has been rounded down, shall be carried forward and taken into account in any subsequent adjustment, and such subsequent adjustment shall be made on the basis that the adjustment not required to be made had been made at the relevant time and/or, as the case may be, that the relevant rounding down had not been made.

 

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Annex I

 

Notice of any adjustments to the Floor Price shall be given by the Company to Holders of the Securities via DTC (or, if the Securities are held in definitive form, via the Trustee) promptly after the determination thereof and in accordance with Sections 1.05 and 1.06 of the Base Indenture.

Definitions

Unless otherwise provided, for the purposes of this Annex I:

Applicable Dividend” has the meaning set forth in the definition of “Extraordinary Dividend” below.

Cash Dividend “ means (i) any Dividend which is to be paid or made in cash (in whatever currency), but other than any Dividend falling within paragraph (b) of the definition of “Spin-Off,” and (ii) any Dividend determined to be a Cash Dividend pursuant to paragraph (a) of the definition of “Dividend,” provided that a Dividend falling within paragraph (c) or (d) of the definition of “Dividend” shall be treated as being a Non-Cash Dividend.

Current Market Price” means, in respect of an ordinary share at a particular date, the average of the daily Volume Weighted Average Price of an ordinary share on each of the five consecutive dealing days ending on the dealing day immediately preceding such date; provided that, if at any time during the said five-dealing-day period the Volume Weighted Average Price shall have been based on a price ex-Dividend (or ex- any other entitlement) and during some other part of that period the Volume Weighted Average Price shall have been based on a price cum-Dividend (or cum- any other entitlement), then:

 

  (i) if the ordinary shares to be issued and delivered do not rank for the Dividend (or entitlement) in question, the Volume Weighted Average Price on the dates on which the ordinary shares shall have been based on a price cum-Dividend (or cum- any other entitlement) shall, for the purposes of this definition, be deemed to be the amount thereof reduced by an amount equal to the Fair Market Value of any such Dividend or entitlement per ordinary share as at the date of the first public announcement relating to such Dividend or entitlement; or

 

  (ii) if the ordinary shares to be issued and delivered do rank for the Dividend (or entitlement) in question, the Volume Weighted Average Price on the dates on which the ordinary shares shall have been based on a price ex-Dividend (or ex- any other entitlement) shall, for the purposes of this definition, be deemed to be the amount thereof increased by an amount equal to the Fair Market Value of such Dividend or entitlement per ordinary share as at the date of the first public announcement relating to such Dividend or entitlement,

and provided further that, if on each of the said five dealing days the Volume Weighted Average Price shall have been based on a price cum-Dividend (or cum- any other entitlement) in respect of a Dividend (or other entitlement) which has been declared or announced but the ordinary shares to be issued and delivered do not rank for that Dividend (or other entitlement), the Volume Weighted Average Price on each of such dates shall, for the purposes of this definition, be deemed to be the amount thereof reduced by an amount equal to the Fair Market Value of any such Dividend or entitlement per ordinary share as at the date of first public announcement relating to such Dividend or entitlement, and provided further that, if the Volume Weighted Average Price of an ordinary share is not available on one or more of the said five dealing days (disregarding for this purpose the proviso to the definition of Volume Weighted

 

I-12


Annex I

 

Average Price), then the average of such Volume Weighted Average Prices which are available in that five-dealing-day period shall be used (subject to a minimum of two such prices) and if only one, or no, such Volume Weighted Average Price is available in the relevant period, the Current Market Price shall be determined in good faith by an Independent Financial Adviser.

A “dealing day” means a day on which the Relevant Stock Exchange or relevant stock exchange or securities market is open for business and on which ordinary shares, securities, Spin-Off Securities, options, warrants or other rights (as the case may be) may be dealt in (other than a day on which the Relevant Stock Exchange or relevant stock exchange or securities market is scheduled to or does close prior to its regular weekday closing time).

Depositary Receipts” means depositary receipts issued by the Trust representing ordinary shares in the capital of the Company, with each Depositary Receipt representing one ordinary share as at the Issue Date.

Dividend” means any dividend or distribution to holders of ordinary shares (including a Spin-Off) whether of cash, assets or other property (and for these purposes a distribution of assets includes without limitation an issue of ordinary shares or other securities credited as fully or partly paid up by way of capitalization of profits or reserves), and however described and whether payable out of share premium account, profits, retained earnings or any other capital or revenue reserve or account, and including a distribution or payment to holders of ordinary shares upon or in connection with a reduction of capital provided that:

 

  (a) where:

 

  (i) a Dividend in cash is announced which may at the election of a shareholder or shareholders of the Company be satisfied by the issue or delivery of ordinary shares or other property or assets, or where a capitalization of profits or reserves is announced which may at the election of a shareholder or shareholders be satisfied by the payment of cash, then the Dividend in question shall be treated as a Cash Dividend of an amount equal to the greater of (A) the Fair Market Value of such cash amount and (B) the Current Market Price of such ordinary shares as at the first date on which the ordinary shares are traded ex-the relevant Dividend on the Relevant Stock Exchange or, as the case may be, the record date or other due date for establishment of entitlement in respect of the relevant capitalization or, as the case may be, the Fair Market Value of such other property or assets as at the date of the first public announcement of such Dividend or capitalization or, in any such case, if later, the date on which the number of ordinary shares (or amount of such other property or assets, as the case may be) which may be issued and delivered is determined; or

 

  (ii) there shall be any issue of ordinary shares by way of capitalization of profits or reserves (including any share premium account or capital redemption reserve) where such issue is or is expressed to be in lieu of a Dividend (whether or not a Cash Dividend equivalent or amount is announced), or a Dividend in cash that is to be satisfied by the issue or delivery of ordinary shares or other property or assets, the capitalization or Dividend in question shall be treated as a Cash Dividend of an amount equal to the Current Market Price of such ordinary shares or, as the case may be, the Fair Market Value of such other property or assets, as at the first date on which the ordinary shares are traded ex-the relevant capitalization or, as the case may be, ex-the relevant Dividend on the Relevant Stock Exchange or, if later, the date on which the number of ordinary shares to be issued and delivered is determined;

 

I-13


Annex I

 

  (b) any issue of ordinary shares as described in paragraph (i) or (ii) under “— Adjustment of Floor Price” above shall be disregarded;

 

  (c) a purchase or redemption or buy back of share capital of the Company by or on behalf of the Company in accordance with any general authority for such purchases or buy backs approved by a general meeting of shareholders and otherwise in accordance with the limitations prescribed under Dutch law for dealings generally by a company in its own shares shall not constitute a Dividend and any other purchase or redemption or buy back of share capital of the Company by or on behalf of the Company or any member of the Group shall not constitute a Dividend unless, in the case of a purchase or redemption or buy back of ordinary shares by or on behalf of the Company or any member of the Group, the weighted average price per ordinary share (before expenses) on any one day (a “Specified Share Day”) in respect of such purchases or redemptions or buy backs (translated, if not in the Relevant Currency, into the Relevant Currency at the Prevailing Rate on such day) exceeds by more than 5% the average of the daily Volume Weighted Average Price of an ordinary shares on the 5 dealing days immediately preceding the Specified Share Day or, where an announcement (excluding, for the avoidance of doubt for these purposes, any general authority for such purchases, redemptions or buy backs approved by a general meeting of shareholders or any notice convening such a meeting of shareholders) has been made of the intention to purchase, redeem or buy back ordinary shares at some future date at a specified price or where a tender offer is made, on the 5 dealing days immediately preceding the date of such announcement or the date of first public announcement of such tender offer (and regardless of whether or not a price per ordinary share, a minimum price per ordinary share or a price range or a formula for the determination thereof is or is not announced at such time), as the case may be, in which case such purchase, redemption or buy back shall be deemed to constitute a Dividend in the Relevant Currency in an amount equal to the amount by which the aggregate price paid (before expenses) in respect of such ordinary shares purchased, redeemed or bought back by the Company or, as the case may be, any member of the Group (translated where appropriate into the Relevant Currency as provided above) exceeds the product of (i) 105% of the daily Volume Weighted Average Price of an ordinary share determined as aforesaid and (ii) the number of ordinary shares so purchased, redeemed or bought back;

 

  (d) if the Company or any member of the Group shall purchase, redeem or buy back any depositary or other receipts or certificates representing ordinary shares, the provisions of paragraph c) above shall be applied in respect thereof in such manner and with such modifications (if any) as shall be determined in good faith by an Independent Financial Adviser; and

 

  (e) where a dividend or distribution is paid or made to shareholders pursuant to any plan implemented by the Company for the purpose of enabling shareholders to elect, or which may require shareholders, to receive dividends or distributions in respect of the ordinary shares held by them from a person other than (or in addition to) the Company, such dividend or distribution shall for the purposes hereof be treated as a dividend or distribution made or paid to shareholders by the Company, and the foregoing provisions of this definition, and the provisions hereof, including references to the Company paying or making a dividend, shall be construed accordingly.

 

I-14


Annex I

 

EEA Regulated Market” means a market as defined by Article 4.1(14) of Directive 2004/39/EC of the European Parliament and of the Council on markets on financial instruments, as the same may be amended from time to time.

Extraordinary Dividend” means (i) any Cash Dividend that is expressly declared by the Company to be a capital distribution, extraordinary dividend, extraordinary distribution, special dividend, special distribution or return of value to shareholders (including any distribution made as a result of any capital reduction), in which case the Extraordinary Dividend shall be such Cash Dividend, or (ii) any Cash Dividend (other than a Cash Dividend falling under clause (i) of this definition) (the “Applicable Dividend”) paid or made in respect of the Relevant Year if (A) the Fair Market Value of the Applicable Dividend per ordinary share or (B) the sum of (I) the Fair Market Value of the Applicable Dividend per ordinary share and (II) an amount equal to the aggregate of the Fair Market Value or Fair Market Values of any other Cash Dividend or Cash Dividends (other than a Cash Dividend or Cash Dividends falling under clause (i) of this definition) per ordinary share paid or made in respect of the Relevant Year (other than any Cash Dividend or part thereof previously determined under clause (ii) of this definition to be an Extraordinary Dividend paid or made in respect of such Relevant Year), exceeds the Reference Amount, and in that case the Extraordinary Dividend shall be such Applicable Dividend, provided that any Cash Dividend (other than a Cash Dividend falling under part (i) of this definition) which is not expressed to be in respect of a given financial year of the Company, shall be deemed to be a Cash Dividend in respect of the financial year in which it is made or paid.

Fair Market Value” means, with respect to any property on any date, (a) in the case of a Cash Dividend, the amount of such Cash Dividend; (b) in the case of any other cash amount, the amount of such cash; (c) in the case of securities (including ordinary shares), Spin-Off Securities, options, warrants or other rights or assets publicly traded on a stock exchange or securities market of adequate liquidity (as determined by the Conversion Calculation Agent in good faith), (i) in the case of ordinary shares or Spin-Off Securities, the arithmetic mean of the daily Volume Weighted Average Prices of such ordinary shares or Spin-Off Securities and (ii) in the case of securities (other than ordinary shares or Spin-Off Securities), options, warrants or other rights or assets of the kind referred to above, the arithmetic mean of the daily closing prices of such securities, options, warrants or other rights or assets, in the case of both (i) and (ii) above, during the period of 5 dealing days on the principal stock exchange or securities market on which such securities, Spin-Off Securities, options, warrants or other rights or assets are then listed, admitted to trading or quoted or dealt in, commencing on such date (or, if later, the first such dealing day such securities, Spin-Off Securities, options, warrants or other rights or assets are publicly traded, quoted or dealt in on such stock exchange or securities market) or such shorter period as such securities, Spin-Off Securities, options, warrants or other rights or assets are publicly traded, quoted or dealt in on such stock exchange or securities market; and (d) in the case of securities (including ordinary shares), Spin-Off Securities, options, warrants or other rights or assets not publicly traded on a stock exchange or securities market of adequate liquidity (as aforesaid), the fair market value of such securities, Spin-Off Securities, options, warrants or other rights or assets as determined by an Independent Financial Adviser in good faith, on the basis of a commonly accepted market valuation method and taking account of such factors as it considers appropriate, including the market price per ordinary share, the dividend yield of an ordinary share, the volatility of such market price, prevailing interest rates and the terms of such securities, Spin-Off Securities, options, warrants or other rights or assets, including as to the expiry date and exercise price (if any) thereof. Such amounts shall, in the case of (a) above, be translated into the Relevant Currency (if such Cash Dividend is declared or paid or payable in a currency other than the Relevant Currency) at the rate of exchange used to determine the amount payable to shareholders who were paid or are to be paid or are entitled to be paid the Cash Dividend in the Relevant Currency and, in any other case, shall be translated into the Relevant Currency (if expressed in a currency other than the Relevant Currency) at the Prevailing Rate on that date. In addition, in the case of (a) and (b) above, the Fair Market Value shall be determined on a gross basis, disregarding any withholding or deduction required to be made for or on account of tax, and disregarding any associated tax credit.

 

I-15


Annex I

 

Further Capital Securities” means any securities issued after the Issue Date which are contingently convertible into ordinary shares pursuant to their terms in the event that the Group CET1 Ratio is less than a specified percentage.

Independent Financial Adviser” means an independent financial institution of international repute or independent financial adviser with appropriate expertise (which may include the initial Conversion Calculation Agent) appointed by the Company at its own expense.

Non-Cash Dividend” means any Dividend which is not a Cash Dividend, and shall include a Spin-Off.

a “person” includes any individual, company, corporation, firm, partnership, joint venture, undertaking, association, organization, trust, state or agency of a state (in each case whether or not being a separate legal entity) or other legal entity.

Prevailing Rate” means, in respect of any pair of currencies on any calendar day, the spot rate of exchange between the relevant currencies prevailing as at or about 12:00 pm, London time, on that date as appearing on or derived from the Relevant Page or, if such a rate cannot be determined at such time, the rate prevailing as at or about 12:00 pm, London time, on the immediately preceding day on which such rate can be so determined or, if such rate cannot be so determined by reference to the Relevant Page, the rate determined in such other manner as an Independent Financial Adviser shall in good faith prescribe.

Regulated Market” means an EEA Regulated Market or another regulated, regularly operating, recognized stock exchange or securities market in an OECD member state.

Reference Amount” means, either:

 

  (a) where (i) the Applicable Dividend in respect of such Relevant Year is declared after the date on which the Group’s audited consolidated financial statements in respect of the Relevant Year are available (the “Results Availability Date”) and (ii) no other Cash Dividends have been declared in respect of such Relevant Year prior to the Results Availability Date: 100% of the Group’s net result from continuing and discontinued operations (before minority interests) per ordinary share in respect of such Relevant Year; or,

 

  (b) in any other case: the greater of (i) 100% of the Group’s net results from continuing and discontinued operations (before minority interests) per ordinary share in respect of the Relevant Year and (ii) 100% of the Group’s net results from continuing and discontinued operations (before minority interests) per ordinary share in respect of the most recently completed financial year for which the Group’s audited consolidated financial statements are available on the date on which the first Cash Dividend in respect of the Relevant Year is declared (and such determination shall be made promptly after the Results Availability Date), except where a Conversion Notice is delivered before such Results Availability Date, in which case the Reference Amount shall be equal to the amount determined pursuant to part (ii) of this paragraph, and in any such case, the Floor Price for the purpose of such Conversion Notice shall be determined on the basis of an Extraordinary Dividend (if any) determined on the basis of a Reference Amount determined accordingly.

 

I-16


Annex I

 

Relevant Currency” euro or such other currency in which the ordinary shares are quoted or dealt in on the Relevant Stock Exchange at the relevant time or for the purposes of the relevant calculation or determination.

Relevant Page” means the relevant page on Bloomberg or such other information service provider that displays the relevant information, as determined by the Conversion Calculation Agent.

Relevant Shares” means ordinary share capital of the Approved Entity that constitutes equity share capital or the equivalent (or depository or other receipts representing the same) which is listed and admitted to trading on a Regulated Market. In relation to a Conversion in respect of which the Conversion Date falls on or after the New Conversion Condition Effective Dare, references herein to “Conversion Shares” shall be deemed to be references to “Approved Entity Shares.”

Relevant Year” means, in respect of any Cash Dividend, the financial year of the Company in respect of which such Cash Dividend is being paid or made, or deemed to be paid or made, as the case may be.

shareholders “ means the holders of ordinary shares.

Spin-Off “ means (a) a distribution of Spin-Off Securities by the Company to shareholders as a class; or (b) any issue, transfer or delivery of any property or assets (including cash or shares or other securities of or in or issued or allotted by any entity) by any entity (other than the Company) to shareholders as a class, pursuant to any arrangements with the Company or any member of the Group.

Spin-Off Securities” means equity share capital of an entity other than the Company or options, warrants or other rights to subscribe for or purchase equity share capital of an entity other than the Company.

Subsidiary” means each subsidiary as defined in Section 2:24a of the Dutch Civil Code for the time being of the Company.

Volume Weighted Average Price” means, in respect of an ordinary share or security or Spin-Off Security on any dealing day, the volume-weighted average price of an ordinary share (or security or Spin-Off Security, as applicable), published by or derived (in the case of an ordinary share) from the relevant Bloomberg page INGA NA <Equity> HP (setting “Weighted Average Line” or any successor setting) or (in the case of a security (other than ordinary shares) or Spin-Off Security) from the equivalent Bloomberg page for such security or Spin-Off Security in respect of the principal stock exchange or securities market on which such securities or Spin-Off Securities are then listed or quoted or dealt in, if any, or such other source as shall be determined in good faith to be appropriate by an Independent Financial Adviser on such dealing day; provided that if on any such dealing day such price is not available or cannot otherwise be determined as provided above, the Volume Weighted Average Price of an ordinary share, security or Spin-Off Security, as the case may be, in respect of such dealing day shall be the Volume Weighted Average Price, determined as provided above, on the immediately preceding dealing day on which the same can be so determined or determined as an Independent Financial Adviser might otherwise determine in good faith to be appropriate.

If the ordinary shares are represented by Depositary Receipts and only the Depositary Receipts are admitted to listing on the Relevant Stock Exchange, references herein shall mean or include, as the case may be and mutatis mutandis to reflect the fact that the Depositary Receipts represent underlying ordinary shares, such Depositary Receipts, including without limitation that such adjustments shall be made to the Conversion Price or Floor Price as may be determined by an Independent Financial Adviser to be appropriate to reflect any change in the number of ordinary shares represented by or underlying a Depositary Receipt.

 

I-17


Annex I

 

References to any act or statute or any provision of any act or statute shall be deemed also to refer to any statutory modification or re-enactment thereof or any statutory instrument, order or regulation made thereunder or under such modification or re-enactment.

In making any calculation or determination of Current Market Price or Volume Weighted Average Price, such adjustments (if any) shall be made as an Independent Financial Adviser determines in good faith to be appropriate to reflect any consolidation or sub-division of the ordinary shares or any issue of ordinary shares by way of capitalization of profits or reserves, or any like or similar event.

References to any issue or offer or grant to shareholders “as a class” or “by way of rights” shall be taken to be references to an issue or offer or grant to all or substantially all shareholders, as the case may be, other than shareholders, as the case may be, to whom, by reason of the laws of any territory or requirements of any recognized regulatory body or any other stock exchange or securities market in any territory or in connection with fractional entitlements, it is determined not to make such issue or offer or grant.

 

I-18


Exhibit A

Form of Security

[THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.

BY PURCHASING THIS SECURITY, IN THE ABSENCE OF A CHANGE IN LAW OR AN ADMINISTRATIVE OR JUDICIAL RULING TO THE CONTRARY, THE HOLDER AGREES TO CHARACTERIZE THIS SECURITY FOR ALL U.S. FEDERAL INCOME TAX PURPOSES AS PROVIDED ON THE FACE OF THIS SECURITY.]

ING GROEP N.V.

6.500% Perpetual Additional Tier 1 Contingent Convertible Capital Securities

 

No.      $

CUSIP NO. 456837AF0

ISIN NO. US456837AF06

ING GROEP N.V., a holding company duly organized and existing under the laws of The Netherlands (herein called the “Company”, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to            , or registered assigns, the principal sum of $              (            Dollars), if and to the extent due, and to pay interest thereon, if any, in accordance with the terms hereof and the Indenture. This Security shall have no fixed maturity or fixed redemption date. From and including the Issue Date to but excluding April 16, 2025, the interest rate on this Security shall be 6.500% per annum. From and including April 16, 2025 and each fifth anniversary date thereafter, commencing April 16, 2025 (each such date, a “Reset Date”) to (but excluding) the next following Reset Date, the applicable per annum rate shall be equal to the sum of the applicable Mid-Market Swap Rate on the Reset Determination Date and 4.446%. Subject to the provisions on the reverse of this Security relating to cancellation and deemed cancellation of interest and to Sections 2.03 and 2.04 of the Second Supplemental Indenture, interest, if any, shall be payable semiannually in arrear on April 16 and October 16 of each year (each, an “Interest Payment Date”), commencing on October 16, 2015, and shall be calculated on the basis of a year of 360 days consisting of twelve (12) months of thirty (30) days each and, in the case of an incomplete month, the actual number of days elapsed.

The interest, if any, so payable, and paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest which shall be the Business Day immediately preceding each Interest Payment Date (whether or not a Business Day).

Payment of the principal of and interest on this Security will be made at the office or agency of the Company maintained for that purpose in The City of New York in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that at the option of the Company payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register. If any payment of principal of or interest on this Security is scheduled to be made on a day that is not a Business Day, payment may be made on the following day without adjustment.


This Security shall be governed by and construed in accordance with the laws of the State of New York, except for the subordination and waiver of set-off provisions referred to herein and in Sections 7.01 and 7.02 of the Second Supplemental Indenture, which are governed by, and construed in accordance with, Dutch law.

Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

THIS SECURITY IS NOT A DEPOSIT AND IS NOT INSURED BY THE UNITED STATES FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENT AGENCY OF THE UNITED STATES OR THE NETHERLANDS.

Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof, directly or through an Authenticating Agent, by manual signature of an authorized signatory, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.

 

A-2


IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.

 

Date: ING GROEP N.V.
By:

 

Name:
Title:
By:

 

Name:
Title:

Trustee’s Certificate of Authentication

This is one of the Securities of the series designated herein referred to in the Indenture.

 

Date: THE BANK OF NEW YORK MELLON,
LONDON BRANCH
As Trustee
By:

 

Authorized Signatory

 

A-3


(Reverse of Security)

This Security is one of a duly authorized issue of securities of the Company (herein called the “Securities” and each, a “Security”) issued and to be issued in one or more series under and governed by the Capital Securities Indenture, dated as of April 16, 2015 (herein called the “Base Indenture”), between the Company and The Bank of New York Mellon, London Branch, as Trustee (herein called the “Trustee,” which term includes any successor trustee under the Base Indenture), as supplemented and amended by the Second Supplemental Indenture, dated as of April 16, 2015 (the “Second Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), and reference is hereby made to the Indenture, the terms of which are incorporated herein by reference, for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee, the Holders of Senior Instruments and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. Insofar as the provisions of the Indenture may conflict with the provisions set forth in this Security, the former shall control for purposes of this Security.

This Security is one of the series designated on the face hereof, limited to a principal amount of $1,250,000,000, which amount may be increased at the option of the Company without the consent of the Holders of the Securities of this Series. References herein to “this series” mean the series designated on the face hereof.

This Security may be redeemed in certain circumstances at the option of the Company as set forth in the Indenture.

This Security may be automatically converted into ordinary shares or other securities of the Company as set forth in the Indenture.

Subject to applicable law, no Holder of this Security may exercise, claim or plead any right of set-off, compensation or retention in respect of any amount owed to it by the Company arising under, or in connection with, the Securities and each Holder of Securities shall, by virtue of its holding of any Securities, be deemed to have waived all such rights of set-off, compensation or retention.

The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in principal amount of the Securities then Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of a majority in aggregate principal amount of the Securities of each series then Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past Defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.

As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have any right to institute any proceeding, judicial or otherwise, with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of not less than 25% in aggregate principal amount of the Securities of this series then Outstanding shall have made written request to the Trustee to institute proceedings in respect

 

A-4


of such Event of Default as Trustee and offered to the Trustee security or indemnity satisfactory to the Trustee in its sole discretion against the costs, expenses and liabilities to be incurred in compliance with such request, the Trustee shall not have received from the Holders of a majority in principal amount of Securities of this series then Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for sixty (60) days after receipt of such notice, request and offer of indemnity.

Notwithstanding any contrary provisions in this Security, nothing shall impair the right of a Holder of this Security under the Trust Indenture Act, absent such Holder’s consent, to sue for any payments due but unpaid with respect to this Security.

As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where the principal of this Security is payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing. Thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

This Securities of this series are issuable only in registered form without coupons in denominations of $200,000 and integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities are exchangeable for a like aggregate principal amount of Securities of a different authorized denomination, as requested by the Holder surrendering the same.

No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.

Prior to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.

All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.

By acquiring the Securities, the Holder and each Beneficial Owner of this Security, or any interest therein, acknowledges and agrees with and for the benefit of the Company and the Trustee as follows:

 

  (i) Dutch Bail-In Power. Such Holder and Beneficial Owner:

 

  (a) acknowledges and agrees that no exercise of the Dutch Bail-In Power by the Relevant Resolution Authority with respect to the Securities or cancellation or deemed cancellation of interest on the Securities pursuant to Sections 2.03 and 2.04 of the Second Supplemental Indenture shall give rise to a default for purposes of Section 315(b) (Notice of Default) and Section 315(c) (Duties of the Trustee in Case of Default) of the Trust Indenture Act;

 

A-5


  (b) to the extent permitted by the Trust Indenture Act, waives any and all claims against the Trustee for, agrees not to initiate a suit against the Trustee in respect of, and agrees that the Trustee shall not be liable for, any action that the Trustee takes, or abstains from taking, in either case in accordance with the exercise of the Dutch Bail-In Power by the Relevant Resolution Authority with respect to the Securities;

 

  (c) acknowledges and agrees that, upon the exercise of any Dutch Bail-In Power by the Relevant Resolution Authority, (i) the Trustee shall not be required to take any further directions from Holders or Beneficial Owners of the Securities under Section 5.12 of the Base Indenture and (ii) the Indenture shall impose no duties upon the Trustee whatsoever with respect to the exercise of any Dutch Bail-In Power by the Relevant Resolution Authority. If Holders or Beneficial Owners of the Securities have given a direction to the Trustee pursuant to Section 5.12 of the Base Indenture prior to the exercise of any Dutch Bail-in Power by the Relevant Resolution Authority, such direction shall cease to be of further effect upon such exercise of any Dutch Bail-in Power and shall become null and void at such time. Notwithstanding the foregoing, if, following the completion of the exercise of the Dutch Bail-In Power by the Relevant Resolution Authority, the Securities remain outstanding, then the Trustee’s duties under the Indenture shall remain applicable with respect to the Securities following such completion to the extent that the Company and the Trustee shall agree pursuant to a supplemental indenture or an amendment to this Second Supplemental Indenture; and

 

  (d) (i) consents to the exercise of any Dutch Bail-In Power as it may be imposed without any prior notice by the Relevant Resolution Authority of its decision to exercise such power with respect to the Securities and (ii) authorizes, directs and requests DTC and any direct participant in DTC or other intermediary through which it holds such Securities to take any and all necessary action, if required, to implement (x) the Conversion and (y) the exercise of any Dutch Bail-In Power with respect to the Securities as it may be imposed, without any further action or direction on the part of such Holder and such Beneficial Owner.

 

  (ii) Subsequent Investors’ Agreement. Holders or Beneficial Owners of Securities that acquire them in the secondary market shall be deemed to acknowledge, agree to be bound by and consent to the same provisions specified herein to the same extent as the Holders or Beneficial Owners of the Securities that acquire the Securities upon their initial issuance, including, without limitation, with respect to the acknowledgement and agreement to be bound by and consent to the terms of the Securities, including in relation to interest cancellation, the Conversion, the Dutch Bail-in Power and the limitations on remedies specified in Indenture.

 

  (iii)

Conversion Upon a Trigger Event. Such Holder or Beneficial Owner consents to the Conversion of this Security following a Trigger Event, the appointment of the Conversion Shares Depository, and the issuance of the Conversion Shares to the Conversion Shares Depository, all of which may occur without any further action on the part of such Holder or Beneficial Owner or the Trustee, and following which no Holder or Beneficial Owner of this Security will have any rights against the Company with respect to the payment of principal of, or interest on, such Securities. To the extent this Security is held in the form of a Global Security, such Holder or Beneficial Owner,

 

A-6


  directs and requests the Depositary, any direct participant therein and any other intermediary through which it holds such Securities to take any and all necessary action, if required, to implement the Conversion without any further action or direction on the part of such Holder or Beneficial Owner or the Trustee.Upon a Trigger Event and Conversion, the principal amount of the Securities may be applied in such manner as the Company deems necessary in connection with the issue and paying up of the relevant Conversion Shares and the delivery thereof to the Conversion Shares Depositary or pursuant to any Alternative Delivery Arrangements.

 

  (iv) Interest Cancellation. Interest shall be payable on this Security solely at the discretion of the Company, and no amount of interest shall become due and payable in respect of the relevant Interest Payment Date or related Interest Period or Redemption Date to the extent that it has been cancelled or deemed cancelled (in whole or in part) by the Company in its sole discretion and/or as a result of (i) the Company having insufficient Distributable Items, or (ii) the relevant interest payment’s causing the Maximum Distributable Amount to be exceeded. A cancellation or deemed cancellation of interest (in each case, in whole or in part) in accordance with the terms of the Indenture shall not constitute a default in payment or otherwise under the terms of this Security.

 

  (v) Waiver of Claims. Such Holder or Beneficial Owner unconditionally and irrevocably agrees to each and every provision of the Indenture and this Security waives, to the fullest extent permitted by the Trust Indenture Act and any other applicable law, any and all claims against the Trustee arising out of its acceptance of its trusteeship for the Securities, including, without limitation, claims related to or arising out of or in connection with a Trigger Event and/or any Conversion.

 

  (vi) Successors and Assigns. All authority conferred or agreed to be conferred by the Holder or Beneficial Owner of this Security shall be binding upon the successors, assigns, heirs, executors, administrators, trustees in bankruptcy and legal representatives of such Holder or Beneficial Owner.

 

A-7


Exhibit B

Form of Conversion Notice

CONVERSION NOTICE

[ING Letterhead]

[Date]

 

To: Each Holder and Beneficial Owner of ING Groep N.V. $1,250,000,000 6.500% Perpetual Additional Tier 1 Contingent Convertible Capital Securities (CUSIP: 456837AF0, ISIN: US456837AF06)

This notice is given by ING Groep N.V. (the “Company”) in connection with its $1,250,000,000 6.500% Perpetual Additional Tier 1 Contingent Convertible Capital Securities (CUSIP: 456837AF0, ISIN: US456837AF06) issued on April 16, 2015 (the “Securities”) pursuant to the Capital Securities Indenture, dated April 16, 2015, between the Company and The Bank of New York Mellon, London Branch, as Trustee (the “Trustee”), as supplemented by the Second Supplemental Indenture, dated April 16, 2015, between the Company and the Trustee (together, the “Indenture”). Capitalized terms used herein and not defined herein shall have the respective meanings ascribed to such terms in the Indenture.

 

  1. A Trigger Event has occurred with respect to the Securities.

 

  2. The Conversion Date is [•].

 

  3. The Company has appointed [•] as the Conversion Shares Depositary.

 

  4. The Conversion Price is $[•].

 

  5. The Conversion Shares shall be issued in the form of [ordinary shares, par value €[•] per share, of the Company (“Ordinary Shares”][bearer depositary receipts (“Bearer Depositary Receipts”), each representing [one] ordinary share, par value €[•] per share, of the Company, issued by Stichting ING Aandelen (ING Trust Office)].

 

  6. The Company expects The Depository Trust Company to suspend all clearance and settlement of the Securities on [•].

 

  7. Each Holder or Beneficial Owner of a Security or an interest therein is required to complete a Conversion Shares Settlement Notice in the form attached as Annex A and deliver it to the Conversion Shares Depositary not later than [•] (the “Notice Cut-Off Date”).

 

  8. Securities for which no Conversion Shares Settlement Notice has been received by the Conversion Shares Depositary shall be cancelled on [•] (the “Final Cancellation Date”).

 

  9. The Securities shall remain in existence for the sole purpose of evidencing the holder’s right to receive Conversion Shares from the Conversion Shares Depository.

If a Holder or Beneficial Owner of Securities properly completes and delivers a Conversion Shares Settlement Notice on or before the Notice Cut-Off Date, the Conversion Shares Depository shall, in accordance with the terms of the Indenture, deliver to such Holder or Beneficial Owner the relevant Conversion Shares (rounded down to the nearest whole number of Conversion Shares) two (2) Business Days after the date on which the Conversion Shares Settlement Notice is received by the Conversion Shares Depository.


If a Holder or Beneficial Owner of Securities fails to properly complete and deliver a Conversion Shares Settlement Notice before the Notice Cut-Off Date, the Conversion Shares Depository shall continue to hold the relevant Conversion Shares. However, the relevant Securities shall be cancelled on the Final Cancellation Date. Any Holder or Beneficial Owner of Securities delivering a Conversion Shares Settlement Notice after the Notice Cut-Off Date must provide evidence of its entitlement to the relevant Conversion Shares satisfactory to the Conversion Shares Depository in its sole and absolute discretion in order to receive such Conversion Shares.

For inquiries, please contact:

[ING Contact Person]

[Telephone]

[Fax]

[Email]

 

B-2


Exhibit C

Form of Conversion Shares Settlement Notice

CONVERSION SHARES SETTLEMENT NOTICE

 

To:

The Depository Trust Company

55 Water Street, 25th Floor

New York, NY 10041-0099

Attn: Mandatory Reorganization Department

Fax: +1 (212) 855-5488

Email:

mandatoryreorgannouncements@dtcc.com

[Contact details of [Conversion Shares

Depository] to be included.]

Cc:

The Bank of New York Mellon

Merck House

Seldown

Poole, Dorset BH15 1PX

United Kingdom

Attn: International Corporate Trust Services

Email: corpsov2@bnymellon.com

Fax: 01202 689600

Tel: 01202 689978

The Bank of New York Mellon

101 Barclay Street

Floor 7-E

New York, New York 10286

United States of America

Attn: International Corporate Trust

Fax: +1 (212) 815-5366

 

Re: ING Groep N.V. $1,250,000,000 6.500% Perpetual Additional Tier 1 Contingent Convertible Capital Securities (CUSIP: 456837AF0, ISIN: US456837AF06) (the “Securities”)

Reference is made to the Capital Securities Indenture, dated April 16, 2015, between ING Groep N.V. and The Bank of New York Mellon, London Branch, as Trustee (“Trustee”), as supplemented by the Second Supplemental Indenture, dated April 16, 2015, between the Company and the Trustee (together, the “Indenture”). Capitalized terms used herein and not defined herein shall have the respective meanings ascribed to such terms in the Indenture.

The person submitting this Notice hereby represents and warrants, for the benefit of the Company and the Conversion Shares Depositary, that the Holder or Beneficial Owner on whose behalf this Notice is submitted is entitled to take delivery of the Conversion Shares and has obtained any consents necessary in order to do so.

 

INFORMATION OF THE HOLDER OR BENEFICIAL OWNER FOR DELIVERY OF

CONVERSION SHARES

 

Surname/Company Name

 

First name

Name to be entered in share register

 

Tradable Amount of the Securities held on the date hereof

 


Euroclear Netherlands or DTC participant ID

 

Euroclear Netherlands member account (if applicable)

Indicate here if Conversion Shares are to be issued in the form of American Depositary Shares:

 

[Account details of clearing system account]1

 

[Address to which any Conversion Shares should be delivered]2

 

YOU MUST DELIVER THE CONVERSION SHARES SETTLEMENT NOTICE TO THE CONVERSION SHARES DEPOSITORY AND THE TRUSTEE VIA DTC BEFORE [INSERT FINAL CANCELLATION DATE].

If you fail to properly complete and deliver the Conversion Shares Settlement Notice on or before [INSERT NOTICE CUT-OFF DATE], the Conversion Shares Depository shall continue to hold your Conversion Shares. However, your Securities shall be cancelled on [INSERT FINAL CANCELLATION DATE], and you will have to provide evidence of your entitlement to the relevant Conversion Shares satisfactory to the Conversion Shares Depository in its sole and absolute discretion in order to receive delivery of such Conversion Shares.

 

1 Note: To be included if the Conversion Shares will be delivered through a clearing system account other than Euroclear Netherlands or DTC.
2 Note: To be included if the Conversion Shares are not a participating security in Euroclear Netherlands, DTC or any another clearing system.

 

D-2



Exhibit 5.1

 

Linklaters LLP

World Trade Centre Amsterdam

Zuidplein 180

1077 XV Amsterdam

Telephone (31 20) 799 6200

Facsimile (31 20) 799 6300

 

To:

ING Groep N.V.

Bijlmerplein 888

1102 MG Amsterdam

The Netherlands

16 April 2015

Dear Sirs

ING Groep N.V. (the “Company”) – SEC Registration of U.S.$1,000,000,000 6.00% Perpetual Additional Tier 1 Contingent Convertible Capital Securities and U.S.$1,250,000,000 6.50% Perpetual Additional Tier 1 Contingent Convertible Capital Securities (together, the “Securities”)

 

1 We have acted as Dutch legal advisers to the Company in connection with the registration (the “Registration”) by the Company under the United States Securities Act of 1933 (as amended) (the “Securities Act”) of the Securities, which are convertible into ordinary shares in the capital of the Company (“Ordinary Shares”) or bearer depositary receipts (certificaten van aandelen) issued by Stichting ING Aandelen (the “Trust”) under and in accordance with the Trust Conditions (as defined in the Schedule to this letter) in respect of Ordinary Shares (the “Bearer Depositary Receipts”) (the Ordinary Shares or Bearer Depositary Receipts in respect thereof to be issued on conversion of the Securities, the “Conversion Shares”). We have taken instructions solely from the Company.

 

2 This opinion is limited to Dutch law as applied by the Dutch courts and published in print and in effect on the date of this opinion, excluding tax law, the laws of the European Union (insofar as not implemented or incorporated in Dutch law), market abuse and competition (including state aid) and procurement laws. This opinion is given on the basis that we undertake no responsibility to notify any addressee of this opinion of any change in Dutch law after the date of this opinion. It is given in accordance with customary Dutch legal practice and on the basis that it and all matters relating to it will be governed by and construed in accordance with Dutch law. In this opinion, Dutch legal concepts are expressed in English terms and not in their original Dutch terms. The Dutch concepts concerned may not be identical to the concepts described by the English terms as they may exist or be interpreted under the laws of jurisdictions other than the Netherlands.

 

3 For the purpose of this opinion we have examined the documents listed and, where appropriate, defined (together with certain other terms used herein) in the Schedule to this letter. Our examination has been limited to the text of the documents. In addition we have obtained the following confirmations given by telephone or otherwise on the date of this opinion:

This communication is confidential and may be privileged or otherwise protected by work product immunity.

Linklaters LLP is a limited liability partnership registered in England and Wales with registered number OC326345. It is a law firm authorised and regulated by the Solicitors Regulation Authority. The term partner in relation to Linklaters LLP is used to refer to a member of Linklaters LLP or an employee or consultant of Linklaters LLP or any of its affiliated firms or entities with equivalent standing and qualifications. A list of the names of the members of Linklaters LLP together with a list of those non-members who are designated as partners and their professional qualifications is open to inspection at its registered office, One Silk Street, London EC2Y 8HQ, England or on www.linklaters.com and such persons are either solicitors, registered foreign lawyers or European lawyers. Linklaters LLP is also registered with the Dutch Trade Register of the Chamber of Commerce under number 34367130.

Please refer to www.linklaters.com/regulation for important information on our regulatory position.

 


3.1 Confirmation from the Chamber of Commerce that the Trade Register Extracts are up to date in all respects material for this opinion.

 

3.2 Confirmation from the insolvency office (afdeling insolventie) of the competent court in Amsterdam and the central insolvency register (centraal insolventieregister) that neither the Company nor the Trust is registered as having been declared bankrupt (failliet verklaard) or granted suspension of payments (surseance verleend).

 

4 We have assumed the following:

 

4.1 All copy documents conform to the originals and all originals are genuine and complete.

 

4.2 Each signature is the genuine signature of the individual concerned.

 

4.3 All documents were at their date, and have through the date hereof remained, accurate, complete and in full force and effect without modification, and have been or will have been executed in the same form as examined by us for the purposes of this opinion and, in the case of the Securities, authenticated, effectuated (where required), issued, accepted and paid for in compliance with the Indentures. All confirmations referred to in paragraph 3 are true.

 

4.4 Neither the Company nor the Trust has (i) had its assets placed under administration (onder bewind gesteld), (ii) been dissolved (ontbonden), merged (gefuseerd) or split up (gesplitst), (iii) been subjected to emergency measures (noodregeling) or any prevention, intervention and resolution measure or been the subject of any event (gebeurtenis) (including preparation of a transfer plan) under the Financial Supervision Act (Wet op het financieel toezicht) (collectively, “Measures”) or (iv) been subjected to any one of the insolvency and winding-up proceedings listed in Annex A or Annex B to the Council Regulation EC No. 1346/2000 of 29 May 2000 on Insolvency Proceedings (“Insolvency Proceedings”, including, inter alia, bankruptcy (faillissement)).

 

4.5 The entry into and performance of the Indentures and the transactions contemplated thereby, including the issue of Securities, are conducive to the corporate objects and in the interest of the Company.

 

4.6 Minutes or extracts therefrom referred to in the Schedule are a true record of proceedings in duly convened, constituted and quorate meetings described therein and the resolutions set out in those minutes have been validly passed and the written resolutions referred to in the Schedule have been validly passed, all resolutions comply with the requirements of reasonableness and fairness (redelijkheid en billijkheid) under Dutch law, and any conditions and limitations contained therein have been or will have been complied with, including that the resolutions of the management board of the Company to issue and list the Securities (and any Conversion Shares, including the exclusion of pre-emptive rights to the relevant Conversion Shares) were made pursuant to and in accordance with an approval given to such resolutions by the supervisory board of the Company (as stated in the management board resolution and as confirmed by the Confirmation).

 

4.7 Any issue of Bearer Depositary Receipts will have been validly authorised by the Trust by any and all resolutions of the Trust’s managing board or any other corporate body of the Trust, required to be adopted (and any other corporate action required to be taken) therefor or in connection therewith.

 

Page 2 of 7


4.8 No advice is required from any works council under the Works Councils Act (Wet op de ondernemingsraden) in connection with the Company’s entry into and performance of the Indentures and issue and performance of the Securities.

 

4.9 The Indentures have been, and any powers of attorney and the Securities (and where required any Conversion Shares or any document signed by the Company evidencing the issue of any Conversion Shares) have been or will have been, signed on behalf of the Company by such number of members of its management board as required under its articles of association in office at the time of signing or, in the case of the Indentures, by a person or persons duly authorised to do so under a valid power of attorney, if in facsimile with the approval of the signatory.

 

4.10 No member of the Company’s management board or supervisory board has a conflict of interest (tegenstrijdig belang) with respect to the Indentures (or the transactions contemplated thereby) or the issue of the Securities.

 

4.11 All documents and their entry into and performance are within the capacity and powers (corporate and otherwise) of, and have been or will have been validly authorised, entered into and duly performed by, each party other than the Company.

 

4.12 All documents (including the Securities), including any governing law and submission to jurisdiction provisions contained therein, are valid, binding and enforceable on each party (including the Company) under the law to which they are expressed to be subject where that is not Dutch law, and under any other applicable law than Dutch law. Words and phrases used in those documents have the same meaning and effect as they would if those documents were governed by Dutch law.

 

4.13 Insofar as any obligation of the Company or the Trust under the Indentures or the Securities (or any Conversion Shares) falls to be performed in, or is otherwise affected by the laws of, any jurisdiction other than the Netherlands, its performance would not be illegal or ineffective under the laws of that jurisdiction.

 

4.14 There are no provisions of any law, other than Dutch law, which may apply to the Securities (or any Conversion Shares) or the Indentures (or the transactions contemplated thereby) or to any power of attorney issued by the Company, which would affect this opinion.

 

4.15 The Company does not and will not come to qualify as a bank within the meaning of the Financial Supervision Act.

 

5 In our opinion:

 

5.1 The Company has been incorporated and is existing as a limited liability company (naamloze vennootschap) under Dutch law.

 

5.2 The Company has the corporate power to issue and perform the Securities.

 

5.3 The Company has taken all necessary corporate action to authorise the issue of the Securities.

 

5.4 Under Dutch law and in accordance with and subject to Regulation (EC) No 593/2008 on the law applicable to contractual obligations (the “Rome I Regulation”), the choice of New York law as the governing law of the Indentures and the Securities (with the exception of Article VII of each Supplemental Indenture, the “Dutch Law Provision”) is recognised as a valid choice of law, and accordingly New York law governs the validity, binding effect and enforceability of the Indentures and the Securities (with the exception of the Dutch Law Provision) against the Company.

 

Page 3 of 7


5.5 Under Dutch law and in accordance with and subject to the Rome I Regulation, the choice of Dutch law as the governing law of the Dutch Law Provision is recognised as a valid choice of law, and under Dutch law the Dutch Law Provision is valid, binding and enforceable.

 

6 This opinion is subject to any matters not disclosed to us and to the following qualifications:

 

6.1 The term “enforceable” as used above, or any other reference by whatever term to enforcement, means that the obligations assumed by the relevant party under the relevant document are of a type which the Dutch courts enforce. It does not mean that those obligations will necessarily be enforced in all circumstances in accordance with their terms. We do not express any opinion as to whether specific performance or injunctive relief would be available.

 

6.2 This opinion is limited by, and therefore we do not express any opinion or statement as to the consequences of, any Insolvency Proceeding, Measure, insolvency, liquidation (ontbinding en vereffening), reorganisation, fraudulent conveyance (Actio Pauliana) and other laws relating to or affecting the rights of creditors, and any sanctions and measures implemented or effective in the Netherlands under the Sanctions Act 1977 (Sanctiewet 1977) or European Union regulations or otherwise by international sanctions.

 

6.3 Under Dutch law, a power of attorney does not preclude the principal from performing the legal acts covered by the power of attorney and can be made irrevocable only insofar as it is granted for the purpose of performing a legal act in the interest of the attorney or a third party and subject to any amendments made or limitations imposed by the court on serious grounds (gewichtige redenen). Each power of attorney (volmacht) or mandate (lastgeving), whether or not irrevocable, granted by a company, will terminate by force of law and without notice, upon bankruptcy of the company or the death of or termination by the attorney or the attorney being placed under guardianship, and will cease to have effect upon the company having been granted a suspension of payments or subjected to Measures. This qualification would also apply to the extent that the appointment of a process agent or other agent were to be deemed to constitute a power of attorney or a mandate.

 

6.4 Under Dutch law, when applying Dutch law as the law governing the Dutch Law Provision, effect may be given to the overriding mandatory provisions of the law of the country where the obligations arising out of the Dutch Law Provision have to be or have been performed, in so far as those provisions render the performance of the Dutch Law Provision unlawful, and regard shall be had to the law of the country in which performance takes place in relation to the manner of performance and the steps to be taken in the event of defective performance.

 

6.5 A provision of an agreement which stipulates that certain documents or determinations are conclusive, final or binding may not be enforceable in all circumstances.

 

6.6 A provision in an agreement requiring, forbidding or restricting a company to take any action that falls within the powers of its general meeting of shareholders, or similar corporate body, may not be enforceable.

 

6.7 We do not express any opinion as to any “deemed” action or absence thereof.

 

6.8

The rights and obligations of parties under the Dutch Law Provision may be affected by general rules of Dutch law such as (i) the principles of reasonableness and fairness (redelijkheid en billijkheid) and modification on grounds of unforeseen circumstances (onvoorziene omstandigheden), (ii) avoidance on grounds of intimidation (bedreiging), deceit (bedrog) or

 

Page 4 of 7


  abuse of circumstances (misbruik van omstandigheden) and (iii) force majeure (niet-toerekenbare tekortkoming of overmacht), the right to suspend performance (opschortingsrecht) or dissolve (ontbinding) a contract if the other party is in default in respect of its obligations, the right to set off (verrekening) and the right to avoid a contract on grounds of mistake (dwaling).

 

6.9 To the extent Dutch law applies, an indemnity will not be enforceable if the damage, loss, cost, liability or expense against which a person or legal entity is indemnified is a result of wilful misconduct or gross negligence of such person or entity or if such person or entity did not act in good faith.

 

6.10 Under Dutch law any term of an agreement may be amended orally or by conduct by the parties despite any provision in the agreement to the contrary.

 

6.11 Under Dutch law any provision of an agreement on partial nullity may not be effective if the remaining provisions of the agreement, having regard to the contents and intent of the agreement, are indissolubly connected to the part that is or has become null and void.

 

6.12 Dutch law does not know the concept of trust as this is known under common law, nor the concept of suspense account, and we do not express any opinion in respect thereof. Any provision pursuant to which moneys or goods are to be held in trust by one party for another party or are to be segregated from the other assets of the party concerned (or provisions having a similar intended effect) may not be enforceable in the Netherlands.

 

6.13 To the extent Dutch law applies, any provision to the effect that no holder of a Security shall have any right to institute any action or proceeding, judicial or otherwise, with respect to the Securities or the Indenture, or for the appointment of a receiver or trustee, or for any remedy thereunder, may not be enforceable in all circumstances.

 

6.14 To the extent Dutch law applies, any provision to the effect that in any proceedings initiated by the Trustee, the Trustee shall be held to represent all holders of the Securities to which such proceedings relate, and that it shall not be necessary to make any holders of Securities party to such proceedings, may not be enforceable in all circumstances.

 

6.15 The enforcement in the Netherlands of the Indentures, the Securities and foreign judgments will be subject to Dutch rules of civil procedure. A Dutch court may mitigate amounts due in respect of litigation and collection costs.

 

6.16 A Dutch court may decline jurisdiction if concurrent proceedings are being brought elsewhere. We express no opinion on competing judgments resulting from any concurrent proceedings.

 

6.17 Claims may become barred by limitation periods or may be or become subject to set-off or counterclaim.

 

6.18 The admissibility of a choice of jurisdiction (such as for courts in the United States) and the procedural consequences of such choice are determined by the laws of the chosen jurisdiction.

 

6.19

In proceedings before a court of the Netherlands the service of process against the Company other than by personal delivery by a bailiff of the courts of the Netherlands (gerechtsdeurwaarder) and in accordance with the applicable treaties will not be considered by the court to constitute valid service of process, notwithstanding any provision to the contrary in the Indentures. It is further noted that there is no Dutch authoritative case law on recognition of a foreign decision in the Netherlands (either within or outside Regulation (EU) No. 1215/2012 of 12 December 2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters)

 

Page 5 of 7


  in the case that service of process has only been performed at the domicile of a process agent and not at the domicile of the defendant. In such case there is a risk that the Dutch court, if the defendant failed to appear in the foreign court, will decide that no proper service of process has taken place, and deny recognition of the foreign decision in the Netherlands.

 

6.20 To the extent that Dutch law applies to the transfer of title to a Security (or any Conversion Share), this requires delivery (levering) pursuant to a valid agreement (geldige titel) by a transferor who has power to pass on title to the relevant Security (or Conversion Share) (beschikkingsbevoegdheid).

 

6.21 To the extent that Dutch law is applicable to the Securities or any transfer thereof, any provision to the effect that the holder of a Security may be treated as the absolute owner thereof or solely entitled thereto may not be enforceable in all circumstances.

 

6.22 We do not express any opinion as to any co-ownership interest in, or transfer of, any Security (or any Conversion Share).

 

6.23 To the extent that the provisions of the Indentures or the Securities are general conditions (algemene voorwaarden) within the meaning of section 6:231 of the Dutch Civil Code, a Securityholder may nullify (vernietigen) a provision therein if (i) the Company has not offered the holder of the Security a reasonable opportunity to examine the same or (ii) the provision, having regard to all relevant circumstances, is unreasonably onerous (onredelijk bezwarend) to the holder of the Security.

 

6.24 We do not express any opinion as to the capital adequacy or other regulatory treatment of the Securities. It is further noted that if conversion of the Securities would result in a holder thereof coming to hold a qualifying holding (gekwalificeerde deelneming) in ING Bank N.V. such holder may need approval from the competent authorities. Any conversion of the Securities into Conversion Shares will be also governed by Dutch corporate law.

 

6.25 It should be understood that we have not been responsible for investigating or verifying the accuracy of the facts or the reasonableness of any statements of belief or opinion contained in the Prospectus or the Prospectus Supplement, or that no material facts have been omitted from it.

 

6.26 The Trade Register Extracts and the confirmations referred to in paragraph 3 do not provide conclusive evidence that the information set out in the Trade Register Extracts is correct or that the Company or the Trust has not become the subject of an Insolvency Proceeding.

 

6.27 We do not express any opinion as to facts.

 

7 This opinion is addressed to you solely for your benefit in connection with the Registration. It is not to be transmitted to anyone else or for any other purpose or quoted or referred to in any public document or filed with anyone without our prior written consent. We hereby consent to the filing of this opinion as an exhibit to the Prospectus Supplement and to the reference to us made under the heading “Validity of the securities” in the Prospectus Supplement. In giving this consent we do not admit that we are within the category of persons whose consent is required within Section 7 of the Securities Act or the rules and regulations of the United States Securities and Exchange Commission thereunder.

Yours faithfully

/s/ Linklaters LLP

 

Page 6 of 7


Schedule

 

1 An electronic certified copy of an extract from the trade register obtained from the chamber of commerce (the “Chamber of Commerce”) regarding the Company dated 16 April 2015 (the “Company Trade Register Extract”).

 

2 An electronic certified copy of an extract from the trade register obtained from the Chamber of Commerce regarding the Trust dated 16 April 2015 (the “Trust Trade Register Extract” and together with the Company Trade Register Extract, the “Trade Register Extracts”).

 

3 A faxed copy of a notarial copy of the Company’s deed of incorporation and of its articles of association as most recently amended on 20 May 2014, both as obtained from and according to the Chamber of Commerce.

 

4 A faxed copy of a notarial copy of the Trust’s deed of incorporation and of its articles of association as most recently amended on 7 October 2010, both as obtained from and according to the Chamber of Commerce.

 

5 An electronic copy of the trust conditions (administratievoorwaarden) of the Trust governing the Bearer Depositary Receipts as most recently amended on 2 September 2011 (the “Trust Conditions”).

 

6 A print-out of an electronic copy of an extract from the minutes of a general meeting of shareholders of the Company held on 12 May 2014 referring to resolutions adopted by the Company’s general meeting in such meeting, including a resolution to designate the Company’s management board as the corporate body authorised to resolve, subject to the approval of the Company’s supervisory board, to issue and grant rights to subscribe for Ordinary Shares and to exclude all pre-emptive rights (voorkeursrechten) in respect thereof.

 

7 A print-out of an electronic copy of a written resolution of Company’s management board dated 17 March 2015, including a resolution to issue the Securities and (consequently) upon conversion thereof issue the Conversion Shares and to exclude all pre-emptive rights in respect thereof and confirming certain matters with respect thereto, and of a confirmation (the “Confirmation”) via e-mail from the in-house legal department of the Company confirming approval of these resolutions of the Company’s management board by the Company’s supervisory board.

 

8 A print-out of an electronic copy of the registration statement on Form F-3 of the Company dated 19 March 2015, as filed with the United States Securities and Exchange Commission (the “SEC”), in relation to, inter alia, capital securities and the Ordinary Shares, including a prospectus (the “Prospectus”), but excluding any documents incorporated by reference in it and any exhibits to it.

 

9 A print-out of an electronic copy of the prospectus supplement dated 9 April 2015 of the Company in relation to the Securities (the “Prospectus Supplement”).

 

10 A print-out of an electronic copy of an executed capital securities indenture dated as of 16 April 2015 (the “Original Indenture”) between the Company as issuer and The Bank of New York Mellon London Branch as trustee (the “Trustee”), as supplemented by a first supplemental indenture and a second supplemental indenture between the same parties and dated as of the same date (the “Supplemental Indentures” and together with the Original Indenture, the “Indentures”) relating to the Securities, including the terms and conditions of the Securities.

References to “documents” are to any and all documents mentioned in this Schedule including the Securities, unless the context requires otherwise.

 

Page 7 of 7


Exhibit 5.2

April 16, 2015

ING Groep N.V.,

Bijlmerplein 888,

1102 MG Amsterdam,

P.O. Box 1800, 1000 BV,

Amsterdam, The Netherlands.

Ladies and Gentlemen:

In connection with the registration under the Securities Act of 1933 (the “Act”) of $1,000,000,000 aggregate principal amount of 6.000% Perpetual Additional Tier 1 Contingent Convertible Capital Securities (the “6.000% Securities”) and $1,250,000,000 aggregate principal amount of 6.500% Perpetual Additional Tier 1 Contingent Convertible Capital Securities (the “6.500% Securities” and, together with the 6.000% Securities, the “Securities”) of ING Groep N.V., a company organized under the laws of The Netherlands (the “Company”), issued in global form pursuant to the Capital Securities Indenture, dated as of April 16, 2015 (the “Capital Securities Indenture”) between the Company and The Bank of New York Mellon, London Branch, as Trustee (the “Trustee”), as supplemented by (i) the First Supplemental Indenture, dated as of April 16, 2015, in respect of the 6.000% Securities and (ii) the Second Supplemental Indenture, dated as of April 16, 2015 in respect of the 6.500% Securities (collectively, the “Supplemental Indentures” and,


ING Groep N.V. - 2 -

 

together with the Capital Securities Indenture, the “Indenture”), we, as your United States counsel, have examined such corporate records, certificates and other documents, and such questions of United States federal and New York state law, as we have considered necessary or appropriate for the purposes of this opinion. Upon the basis of such examination, we advise you that, in our opinion, when the Securities have been duly executed and authenticated in accordance with the Indenture and issued and sold as contemplated in the Company’s Registration Statement on Form F-3 (File No. 333-202880) (the “Registration Statement”), the Securities will constitute valid and legally binding obligations of the Issuer, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles; provided, however, that we express no opinion with respect to Section 12.01 of the Capital Securities Indenture or Article VII of each Supplemental Indenture, each of which is expressly stated to be governed by the laws of The Netherlands.

The foregoing opinion is limited to the Federal laws of the United States and the laws of the State of New York, and we are expressing no opinion as to the effect of the laws of any other jurisdiction. For the purposes of our opinion, we have assumed, without independent verification, that (i) the Company has been duly incorporated and is an existing company organized under the laws of The Netherlands, (ii) each of the Supplemental Indentures and the Capital Securities Indenture has been, or prior to the issuance of any Securities thereunder will have been, duly authorized, executed and delivered in accordance with the laws of The Netherlands and (iii) at or prior to their issuance the Securities will have been duly


ING Groep N.V. - 3 -

 

authorized, executed and delivered in accordance with the laws of The Netherlands. With respect to all matters of Dutch law, we note that you are being provided with the opinion, dated the date hereof, of Linklaters LLP, and our opinion is subject to the same assumptions, qualifications and limitations with respect to such matters as are contained in such opinion of Linklaters LLP.

We have relied as to certain factual matters on information obtained from public officials, officers of the Issuer and other sources believed by us to be responsible, and we have assumed, without independent verification, that the Indenture has been duly authorized, executed and delivered by the Trustee, that the Securities conform to the specimen examined by us, that the Trustee’s certificates of authentication of the Securities have been manually signed by one of the Trustee’s authorized officers, and that the signatures on all documents examined by us are genuine, assumptions which we have not independently verified.

In rendering the foregoing opinion, we are not passing upon, and assume no responsibility for, any disclosure in the Registration Statement or any related prospectus or other offering material regarding the Company or the Securities or their offering and sale.

We hereby consent to the filing of this opinion as an exhibit to a Form 6-K to be incorporated by reference into the Registration Statement and to the reference to us under the heading “Validity of Securities” in the Prospectus Supplement, dated April 9, 2015, and the Prospectus, dated March 19, 2015, pursuant to which the Securities are being offered for sale. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act.

 

Very truly yours,
/s/ Sullivan & Cromwell LLP


Exhibit 8.1

LOGO

Private and confidential

ING Groep N.V.

Bijlmerplein 888

1102MG AMSTERDAM

16 April 2015

Reference: 131.148/RBA/ELI/SWO/FBE/dgo/150416.b1d

 

Subject: ING Groep N.V. – Registration of $1,000,000,000 6.000% Perpetual Additional Tier 1 Contingent Convertible Capital Securities and $1,250,000,000 6.500% Perpetual Additional Tier 1 Contingent Convertible Capital Securities

Dear Sir/Madam,

PricewaterhouseCoopers Belastingadviseurs N.V. (“PwC”) has acted as tax counsel to ING Groep N.V. (the “Issuer”) in connection with the registration under the Securities Act of 1933 (the “Act”) of $1,000,000,000 6.000% Perpetual Additional Tier 1 Contingent Convertible Capital Securities and $1,250,000,000 6.500% Perpetual Additional Tier 1 Contingent Convertible Capital Securities (the “Securities”).

PwC hereby confirms to you its opinion as set forth under the caption “Tax Considerations—Material Dutch Tax Consequences” in the prospectus supplement dated April 9, 2015 (the “Prospectus Supplement”) to the prospectus dated March 19, 2015, included in the Registration Statement on Form F-3 relating to the Securities, is correct in all material respects.

PwC hereby consents to the filing of this letter as an exhibit to the Registration Statement and to the reference to PwC under the heading “Tax Considerations” in the Prospectus Supplement. In giving such consent, PwC does not admit that it is in the category of persons whose consent is required under Section 7 of the Act.

Yours sincerely,

/s/ PricewaterhouseCoopers Belastingadviseurs N.V.

 

/s/ R.P.C.W.M. Brandsma /s/ E.M.A. van der Linden

PricewaterhouseCoopers Belastingadviseurs N.V., Thomas R. Malthusstraat 5, 1066 JR Amsterdam,

P.O. Box 90358, 1006 BJ Amsterdam, The Netherlands

T: +31 (0) 88 792 43 46, F: +31 (0) 88 792 96 40, www.pwc.nl

‘PwC’ is the brand under which PricewaterhouseCoopers Accountants N.V. (Chamber of Commerce 34180285), PricewaterhouseCoopers Belastingadviseurs N.V. (Chamber of Commerce 34180284), PricewaterhouseCoopers Advisory N.V. (Chamber of Commerce 34180287), PricewaterhouseCoopers Compliance Services B.V. (Chamber of Commerce 51414406), PricewaterhouseCoopers Pensions, Actuarial & Insurance Services B.V. (Chamber of Commerce 54226368), PricewaterhouseCoopers B.V. (Chamber of Commerce 34180289) and other companies operate and provide services. These services are governed by General Terms and Conditions (‘algemene voorwaarden’), which include provisions regarding our liability. Purchases by these companies are governed by General Terms and Conditions of Purchase (‘algemene inkoopvoorwaarden’). At www.pwc.nl more detailed information on these companies is available, including these General Terms and Conditions and the General Terms and Conditions of Purchase, which have also been filed at the Amsterdam Chamber of Commerce.



Exhibit 8.2

April 16, 2015

ING Groep N.V.,

Bijlmerplein 888,

1102 MG Amsterdam,

P.O. Box 1800, 1000 BV Amsterdam,

The Netherlands.

Ladies and Gentlemen:

We have acted as your United States federal income tax counsel in connection with the registration under the Securities Act of 1933 (the “Act”) of $1,000,000,000 of 6.000% Perpetual Additional Tier 1 Contingent Convertible Capital Securities and $1,250,000,000 of 6.500% Perpetual Additional Tier 1 Contingent Convertible Capital Securities. We hereby confirm to you that our opinion as to United States federal income tax matters is as set forth under the caption “Tax Considerations—Material U.S. Federal Income Tax Consequences” in the Prospectus Supplement dated April 9, 2015 (the “Prospectus Supplement”) to the Prospectus dated March 19, 2015, included in the Registration Statement on Form F-3 filed on March 19, 2015 (the “Registration Statement”), subject to the limitations set forth therein.

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to us under the caption “Tax Considerations” in the Prospectus Supplement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act.

 

Very truly yours,
/s/ Sullivan & Cromwell LLP
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