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Filed pursuant to Rule 424(b)(3)
Registration No. 333-268890
Depositary Shares representing Ordinary Shares
We may offer our ordinary shares in the form of
American Depositary Shares, or ADSs, from time to time in one or more offerings in such amounts, at prices and on terms to be determined
at or prior to the time of the offering. This prospectus describes the general manner in which the ADS may be offered using this prospectus.
We will provide specific terms and offering prices of the ADSs in supplements to this prospectus. Any supplement to this prospectus may
also add, update or change information contained in this prospectus. You should read this prospectus and the accompanying prospectus supplements
carefully before you invest in the ADSs. Each ADS represents five ordinary shares.
We may offer the ADSs through underwriting syndicates
managed or co-managed by one or more underwriters or dealers, through agents or directly to investors, on a continuous or delayed basis.
The supplement to this prospectus for each offering of ADSs will describe in detail the plan of distribution for that offering. For general
information about the distribution of the ADSs, you should refer to the section entitled “Plan of Distribution.” The net proceeds
we expect to receive from such sale will also be set forth in a supplement to this prospectus.
In addition, from time to time, any selling shareholder
named in a prospectus supplement may offer and sell our ordinary shares in the form of ADSs held by them. Any selling shareholder may
sell such shares through public or private transactions at prevailing market prices or at privately negotiated prices. We will not receive
any proceeds from the sale of such shares by any selling shareholder.
ADSs are listed on the Nasdaq Global Select Market under the symbol “MESO”. Our ordinary shares are listed on the Australian
Securities Exchange under the symbol “MSB”.
Investing in our ADSs involves a high degree
of risk. You should review carefully the risks referenced under the heading “Risk Factors” beginning on page 3 of this prospectus
and under similar headings in any amendment or supplement to this prospectus or as updated by any subsequent filing with the Securities
and Exchange Commission that is incorporated by reference herein.
Neither the Securities and Exchange
Commission nor any U.S. state or other securities commission has approved or disapproved of these securities or passed upon the adequacy
or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
date of this prospectus is December 30, 2022
should rely only on the information provided by this prospectus, any prospectus supplement and any information incorporated by reference.
We have not authorized anyone else to provide you with different or additional information or to make any representations other than
those contained in or incorporated by reference to this prospectus or any accompanying prospectus supplement.
have not taken any action to permit a public offering of the ADSs outside the United States or to permit the possession or distribution
of this prospectus outside the United States. Persons outside the United States who come into possession of this prospectus must observe
any restrictions relating to the offering of the ADSs and the distribution of this prospectus outside of the United States. This prospectus
is not an offer to sell, or solicitation of an offer to buy, any securities in any circumstances under which the offer of solicitation
This prospectus is part of a registration statement
that we have filed with the SEC on Form F-3. This prospectus relates to the offer and sale from time to time of ordinary shares of Mesoblast
Limited, represented by ADSs in one or more offerings up to a total aggregate of $125,000,000. This prospectus provides you with a general
description of the ADSs that we may offer. Each time we sell any of the ADSs, we will provide a prospectus supplement that will contain
specific information about the terms of the offering.
The prospectus supplement may also add, update
or change information contained in this prospectus, and may also contain information about any material federal income tax considerations
relating to the ADSs. You should read both this prospectus and any prospectus supplement, together with additional information described
below under the heading “Where You Can Find More Information,” and “Information Incorporated by Reference” before
deciding whether to invest in any of the ADSs being offered. This prospectus does not contain all of the information included in the registration
statement. For a more complete understanding of the offering of the ADSs, you should refer to the registration statement, including the
exhibits. You may access the registration statement, exhibits and other reports we file with the SEC on the SEC’s website. More
information regarding how you can access such documents is included under the heading “Where You Can Find More Information”
information in this prospectus is accurate as of the date on the front cover of this prospectus, and the information in any free writing
prospectus that we may provide you in connection with this offering is accurate only as of the date of that free writing prospectus.
Neither the delivery of this prospectus nor the sale of any securities means that information contained in this prospectus is correct
after the date of this prospectus or as of any other date. To the extent there is any conflict between the information contained in this
prospectus and the prospectus supplement, you should rely on the information in the prospectus supplement, provided that if any statement
in one of these documents is inconsistent with a statement in another document having a later date, the statement in the document having
the later date modifies or supersedes the earlier statement. Any information incorporated by reference is only accurate as of the date
of the document incorporated by reference.
otherwise indicated or the context implies otherwise:
refers to our American depositary shares, each of which represents five ordinary shares,
and “ADRs” refers to the American depositary receipts that evidence our ADSs;
refers to the Australian Securities Exchange, where our ordinary shares are listed;
or “Australian dollars” refers to the legal currency of Australia;
refers to the International Financial Reporting Standards as issued by the International
Accounting Standards Board, or IASB; and
“we,” “us” or “our” refer to Mesoblast Limited, an Australian
corporation (Australian Business Number 68 109 431 870), and its subsidiaries.
All references to “$”, “US$”
and “U.S. dollar” in this prospectus refer to United States dollars. Except as otherwise stated, all monetary amounts in this
prospectus are presented in United States dollars. Unless otherwise indicated, the consolidated financial statements and related notes
included, or incorporated by reference, in this prospectus have been prepared in accordance with Australian Accounting Standards and also
comply with IFRS as issued by the International Accounting Standards Board, which differs in certain significant respects from Generally
Accepted Accounting Principles in the United States. Our fiscal year ends on June 30 of each year. References to “fiscal 2022”
means the 12-month period ended June 30, 2022 and other fiscal years are referred to in a corresponding manner.
own or have rights to trademarks and trade names that we use in connection with the operation of our business, including our corporate
name, logos, product names and website names. Other trademarks and trade names appearing in this prospectus and the documents incorporated
by reference are the property of their respective owners. Solely for your convenience, some of the trademarks and trade names referred
to in this prospectus and the documents incorporated by reference are listed without the ® and TM symbols, but we will assert, to
the fullest extent under applicable law, our rights to our trademarks and trade names.
statements in this prospectus, any prospectus supplement, any free writing prospectus and in the documents incorporated by reference
may constitute forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, or the Securities
Act, and Section 21E of the Securities Exchange Act of 1934, as amended, or the Exchange Act. We intend such forward-looking statements
to be covered by the safe harbor provisions for forward-looking statements contained in the Private Securities Litigation Reform Act
of 1995. The forward-looking statements relate to future events or our future financial performance and involve known and unknown risks,
uncertainties and other factors that may cause our actual results, levels of activity, performance or achievements to differ materially
from any future results, levels of activity, performance or achievements expressed or implied by these forward-looking statements.
such as, but not limited to, “believe,” “expect,” “anticipate,” “estimate,” “intend,”
“plan,” “targets,” “likely,” “will,” “would,” “could,” and similar
expressions or phrases identify forward-looking statements. We have based these forward-looking statements largely on our current expectations
and future events and financial trends that we believe may affect our financial condition, results of operation, business strategy and
financial needs. Forward-looking statements include, but are not limited to, statements about:
initiation, timing, progress and results of our preclinical and clinical studies, and our
research and development programs;
ability to advance product candidates into, enroll and successfully complete, clinical studies,
including multi-national clinical trials;
ability to advance our manufacturing capabilities;
timing or likelihood of regulatory filings and approvals, manufacturing activities and product
marketing activities, if any;
impact that the COVID-19 pandemic could have on our operations;
commercialization of our product candidates, if approved;
or public perceptions and market acceptance surrounding the use of stem-cell based therapies;
potential for our product candidates, if they are approved, to be withdrawn from the market
due to patient adverse events or deaths;
potential benefits of strategic collaboration agreements and our ability to enter into and
maintain established strategic collaborations;
ability to establish and maintain intellectual property on our product candidates and our
ability to successfully defend these in cases of alleged infringement;
scope of protection we are able to establish and maintain for intellectual property rights
covering our product candidates and technology;
ability to obtain additional financing;
of our expenses, future revenues, capital requirements and our needs for additional financing;
relating to our competitors and our industry;
pricing and reimbursement of our product candidates, if approved; and
|●||other risks and uncertainties, including those listed under the caption “Risk Factors” in our Current
Report on Form 6-K for the three months ended September 30, 2022, and our other reports and filings we make with the SEC from time to
should read thoroughly this prospectus, any prospectus supplement, any free writing prospectus and in the documents incorporated by reference
with the understanding that our actual future results may be materially different from and/or worse than what we expect. We qualify all
of our forward-looking statements by these cautionary statements. Other sections of this prospectus and in the documents incorporated
by reference include additional factors which could adversely impact our business and financial performance. Moreover, we operate in
an evolving environment. New risk factors emerge from time to time and it is not possible for our management to predict all risk factors,
nor can we assess the impact of all factors on our business or the extent to which any factor, or combination of factors, may cause actual
results to differ materially from those contained in any forward-looking statements.
prospectus and documents incorporated by reference may contain third-party data relating to the biopharmaceutical market that includes
projections based on a number of assumptions. The biopharmaceutical market may not grow at the rates projected by market data, or at
all. The failure of this market to grow at the projected rates may have a material adverse effect on our business and the market price
of our ADSs. Furthermore, if any one or more of the assumptions underlying the market data turns out to be incorrect, actual results
may differ from the projections based on these assumptions. You should not place undue reliance on these forward-looking statements.
should not rely upon forward-looking statements as predictions of future events. The forward-looking statements made in this prospectus
relate only to events or information as of the date on which the statements are made in this prospectus (or, in the case of a document
incorporated by reference, the date on which the statements are made in such document). We undertake no obligation to update or revise
any forward-looking statements, whether as a result of new information, future events or otherwise.
in the ADSs involves a high degree of risk. You should carefully consider the risks described under “Risk Factors” in our
Current Report on Form 6-K for the three months ended September 30, 2022, filed with the SEC, and all other
information contained in or incorporated by reference in this prospectus and any prospectus supplement or related free writing prospectus
before deciding whether to purchase any of our ADSs. If any of those risks actually occurs, our business, financial condition and results
of operations could be materially and adversely affected. In that event, the trading price of our ADSs could decline, and you may lose
part or all of your investment.
Certain risks described under the “Risk Factors”
section in our Current Report on Form 6-K for the three months ended September 30, 2022, are summarized below:
Risks Related to Our Financial Position and Capital Requirements
have incurred operating losses since our inception and anticipate that we will continue to
incur substantial operating losses for the foreseeable future. We may never achieve or sustain
have never generated revenue from product sales and may never be profitable.
require substantial additional financing to achieve our goals, and our failure to obtain
this necessary capital or establish and maintain strategic partnerships to provide funding
support for our development programs could force us to delay, limit, reduce or terminate
our product development or commercialization efforts.
terms of our loan facilities with funds associated with Oaktree Capital Management, L.P.
and NovaQuest Capital Management, L.L.C. could restrict our operations, particularly our
ability to respond to changes in our business or to take specified actions.
Related to Clinical Development and Regulatory Review and Approval of Our Product Candidates
product candidates are based on our novel mesenchymal lineage cell technology, which makes
it difficult to accurately and reliably predict the time and cost of product development
and subsequently obtaining regulatory approval. At the moment, no industrially manufactured,
non-hematopoietic, allogeneic cell products have been approved in the United States.
may fail to demonstrate safety and efficacy to the satisfaction of applicable regulatory
may encounter substantial delays in our clinical studies, including as a result of the COVID-19
or any future pandemic.
if we obtain regulatory approval for our product candidates, our products will be subject
to ongoing regulatory scrutiny.
Related to Collaborators
rely on third parties to conduct our nonclinical and clinical studies and perform other tasks
for us. If these third parties do not successfully carry out their contractual duties, meet
expected deadlines, or comply with regulatory requirements, we may not be able to obtain
regulatory approval for or commercialize our product candidates in a timely and cost-effective
manner or at all, and our business could be substantially harmed.
Related to Our Manufacturing and Supply Chain
have no experience manufacturing our product candidates at a commercial scale. We may not
be able to manufacture our product candidates in quantities sufficient for development and
commercialization if our product candidates are approved, or for any future commercial demand
for our product candidates.
rely on contract manufacturers to supply and manufacture our product candidates. Our business
could be harmed if Lonza fails to provide us with sufficient quantities of these product
candidates or fails to do so at acceptable quality levels or prices.
Related to Commercialization of Our Product Candidates
future commercial success depends upon attaining significant market acceptance of our product
candidates, if approved, among physicians, patients and healthcare payors.
in the future, we are unable to establish our own commercial capabilities across sales, marketing
and distribution, or enter into licensing or collaboration agreements for these purposes,
we may not be successful in independently commercializing any future products.
Related to Our Intellectual Property
may not be able to protect our proprietary technology in the marketplace.
patent positions of biopharmaceutical products are complex and uncertain.
Related to Our Business and Industry
we fail to attract and keep senior management and key scientific, commercial, regulatory
affairs and other personnel, we may be unable to successfully develop our product candidates,
conduct our clinical trials and commercialize our product candidates.
employees, principal investigators, consultants and collaboration partners may engage in
misconduct or other improper activities, including noncompliance with laws and regulatory
standards and requirements and insider trading.
Related to Our Trading Markets
market price and trading volume of our ordinary shares and ADSs may be volatile and may be
affected by economic conditions beyond our control. Such volatility may lead to securities
dual listing of our ordinary shares and the ADSs may adversely affect the liquidity and value
of these securities.
Related to Ownership of Our ADSs
active trading market for the ADSs may not develop in the United States.
currently report our financial results under IFRS, which differs in certain significant respect
from U.S. GAAP.
a foreign private issuer, we are permitted and expect to follow certain home country corporate
governance practices in lieu of certain Nasdaq requirements applicable to domestic issuers
and we are permitted to file less information with the Securities and Exchange Commission
than a company that is not a foreign private issuer. This may afford less protection to holders
of our ADSs; and
investors may have difficulty enforcing civil liabilities against our company, our directors
or members of our senior management.
The summary above is not exhaustive. For a more detailed discussion, see the “Risk Factors” section
in our Current Report on Form 6-K for the three months ended
September 30, 2022. In addition, we may face additional risks that are presently unknown to us or that we believe to be immaterial as
of the date of this prospectus. Known and unknown risks and uncertainties may significantly impact and impair our business operations.
Unless otherwise indicated in an accompanying prospectus supplement, we intend to use the net proceeds from the
sale of the securities under this prospectus for general corporate purposes. We may also use a portion of the net proceeds to acquire
or invest in businesses, products and technologies that we own or that are complementary to our own. Pending these uses, we intend to
invest our net proceeds from this offering primarily in investment grade, interest-bearing instruments. As of the date of this prospectus,
we cannot specify with certainty all of the particular uses for the net proceeds we may have upon completion of an offering or offerings.
Accordingly, we will retain broad discretion over the use of these proceeds.
The following table sets forth our cash and cash
equivalents and capitalization as of September 30, 2022.
should read this table in conjunction with our consolidated financial statements and related notes incorporated by reference in this
|(in thousands)||As of
|Cash and cash equivalents||$||85,502|
|Issued capital (737,121,218 ordinary shares outstanding as of September 30, 2022)||$||1,207,734|
are a public company limited by shares registered under the Corporations Act by the Australian Securities and Investments Commission,
or ASIC. Our corporate affairs are principally governed by our Constitution, the Corporations Act, the ASX Listing Rules and NASDAQ Marketplace
Rules. Our ordinary shares trade on the ASX and our ADSs trade on the NASDAQ Global Select Market.
Australian law applicable to our Constitution is not significantly different than a U.S. company’s charter documents except we
do not have the concept of, or a limit on, our authorized share capital, the concept of par value is not recognized under Australian
law and as further discussed under “—Our Constitution.”
to restrictions on the issue of securities in our Constitution, the Corporations Act and the ASX Listing Rules and any other applicable
law, we may at any time issue ordinary shares and grant options or warrants on any terms, with the rights and restrictions and for the
consideration that our board of directors determines.
rights and restrictions attaching to ordinary shares are derived through a combination of our Constitution, the common law applicable
to Australia, the ASX Listing Rules, the Corporations Act and other applicable law. A general summary of some of the rights and restrictions
attaching to our ordinary shares is set forth below. Each shareholder is entitled to receive notice of, and to be present, vote and speak
at, general meetings.
to Our Share Capital
As of September 30, 2022, we had (i)
737,121,218 fully paid ordinary shares outstanding and (ii) employee options outstanding to purchase 40,653,800 of our ordinary shares
at a weighted average exercise price of A$2.24.
July 1, 2019, the following changes have been made to our ordinary share capital:
granted share options to purchase an aggregate of 37,481,740 ordinary shares with a weighted-average
exercise price of A$2.48 per share to employees, directors, officers and consultants. Options
to purchase an aggregate of 10,630,501 ordinary have been exercised for aggregate consideration
of approximately A$19,200,076;
granted incentive rights equivalent to an aggregate of 1,500,000 ordinary shares to employees,
directors, officers and consultants. Incentive rights equivalent to 1,500,000 ordinary shares
have been exercised for aggregate consideration of approximately A$3,300,000;
October 2019, we issued 37,500,000 ordinary shares to institutional investors in a private
placement for total consideration of A$75 million;
May 2020, we issued 43,000,000 ordinary shares to institutional investors in a private placement
for total consideration of A$138 million;
July 2020, we issued 74,924 ordinary shares to Kentgrove Capital for total consideration of A$275,000 as payment in connection with the
terms of the Kentgrove Facility Agreement;
August 2020, we issued 212,244 ordinary shares to a third party for services provided in
connection with the license of intellectual property rights, for total consideration of US$240,000;
March 2021, we issued 60,109,290 ordinary shares to accredited investors in a private placement for a total
consideration of US$110 million as well as warrants to purchase up to 15,027,327 ordinary shares at an exercise price of A$2.88 per share;
August 2022, we issued 86,666,667 ordinary shares to accredited investors in the United States
and elsewhere in a private placement for a total consideration of approximately US$45 million.
Constitution is similar in nature to the bylaws of a U.S. corporation. It does not provide for or prescribe any specific objectives or
purposes of Mesoblast. Our Constitution is subject to the terms of the ASX Listing Rules and the Australian Corporations Act. It may
be modified or repealed and replaced by special resolution passed at a meeting of shareholders, which resolution requires at least 75%
of the votes cast by shareholders (including proxies and representatives of shareholders) entitled to vote on the resolution.
Australian law, a company has the legal capacity and powers of an individual both within and outside Australia. The material provisions
of our Constitution are summarized below. This summary is not intended to be complete nor to constitute a definitive statement of the
rights and liabilities of our shareholders, and is qualified in its entirety by reference to the complete text of our Constitution, a
copy of which is on file with the SEC.
Except as permitted by the Corporations Act and the ASX Listing Rules, a director must not vote in respect of
a matter that is being considered at a directors’ meeting
in which the director has a material personal interest according to our Constitution. Such director must not be counted in a quorum, must
not vote on the matter and must not be present at the meeting while the matter is being considered.
to our Constitution, the fact that a director holds office as a director, and has fiduciary obligations arising out of that office will
not require the director to account to us for any profit realized by or under any contract or arrangement entered into by or on behalf
of Mesoblast and in which the director may have an interest.
a relevant exception applies, the Corporations Act requires our directors to provide disclosure of certain interests and prohibits directors
of companies listed on the ASX from voting on matters in which they have a material personal interest and from being present at the meeting
while the matter is being considered. In addition, unless a relevant exception applies, the Corporations Act and the ASX Listing Rules
require shareholder approval of any provision of financial benefits (including the issue by us of ordinary shares and other securities)
to our directors, including entities controlled by them and certain members of their families.
Powers Exercisable by Directors
to our Constitution, our business is managed by our board of directors. Our board of directors has the power to raise or borrow money,
and charge any of our property or business or all or any of our uncalled capital, and may issue debentures or give any other security
for any of our debts, liabilities or obligations or of any other person, and may guarantee or become liable for the payment of money
or the performance of any obligation by or of any other person.
Removal and Retirement of Directors
may appoint or remove any director by resolution passed in a general meeting of shareholders. Additionally, our directors are elected
to serve three-year terms in a manner similar to a “staggered” board of directors under Delaware law. No director except
the Managing Director (currently designated as our chief executive officer, Silviu Itescu) may hold office for a period in excess of
three years, or beyond the third annual general meeting following the director’s last election, whichever is the longer, without
submitting himself or herself for re-election.
A director who is appointed during the year by the other directors only holds office until the next annual
general meeting at which time the director may stand for election by shareholders at that meeting.
addition, provisions of the Corporations Act apply where at least 25% of the votes cast on a resolution to adopt our remuneration report
(which resolution must be proposed each year at our annual general meeting) are against the adoption of the report at two successive
annual general meetings. Where these provisions apply, a resolution must be put to a vote at the second annual general meeting to the
effect that a further meeting, or a spill meeting, take place within 90 days. At the spill meeting, the directors in office when the
remuneration report was considered at the second annual general meeting (other than the Managing Director) cease to hold office and resolutions
to appoint directors (which may involve re-appointing the former directors) are put to a vote.
restrictions apply in relation to the resolutions to adopt our remuneration report and to propose a spill meeting. These restrictions
apply to our key management personnel and their closely related parties. See “Rights and Restrictions on Classes of Shares—Voting
to our Constitution, a person is eligible to be elected as a director at a general meeting if:
person is in office as a director immediately before the meeting, in respect of an election
of directors at a general meeting that is a spill meeting as provided in the Corporations
person has been nominated by the directors before the meeting;
|●||where the person is a shareholder, the person has, at least 35 business days but no more than 90 business days before the meeting, given to us a notice signed by the person stating the person’s desire to be a candidate for election at the meeting; or|
|●||where the person is not a shareholder, a shareholder intending to nominate the person for election at that meeting has, at least 35 business days but no more than 90 business days before the meeting, given to us a notice signed by the shareholder stating the shareholder’s intention to nominate the person for election, and a notice signed by the person stating the person’s consent to the nomination.|
are currently no requirements for directors to own our ordinary shares in order to qualify as directors.
and Restrictions on Classes of Shares
to the Corporations Act and the ASX Listing Rules, the rights attaching to our ordinary shares are detailed in our Constitution. Our
Constitution provides that any of our ordinary shares may be issued with preferential, deferred or special rights, privileges or conditions,
with any restrictions in regard to dividends, voting, return of share capital or otherwise as our board of directors may determine from
time to time. Subject to the Corporations Act, the ASX Listing Rules and any rights and restrictions attached to a class of shares, we
may issue further ordinary shares on such terms and conditions as our board of directors may resolve. Currently, our outstanding ordinary
share capital consists of only one class of ordinary shares.
Our board of directors may from time to time determine to pay or declare
dividends to shareholders; however, no dividend is payable except in accordance with the thresholds set out in the Corporations Act.
Under our Constitution, the general conduct and
procedures of each general meeting of shareholders will be determined by the chairperson, including any procedures for casting or recording
votes at the meeting whether on a show of hands or on a poll. For so long we are listed on the Australian Securities Exchange, a resolution
put to the vote at a general meeting must be decided on a poll (and not a show of hands) if the notice of the general meeting set out
an intention to propose the resolution and stated the resolution. In addition, a poll may be demanded by the chairperson of the meeting;
by at least five shareholders present and having the right to vote on at the meeting; or any shareholder or shareholders representing
at least 5% of the votes that may be cast on the resolution on a poll. On a show of hands, each shareholder entitled to vote at the meeting
has one vote regardless of the number of ordinary shares held by such shareholder. If voting takes place on a poll, rather than a show
of hands, each shareholder entitled to vote has one vote for each ordinary share held and a fractional vote for each ordinary share that
is not fully paid, such fraction being equivalent to the proportion of the amount that has been paid (not credited) of the total amounts
paid and payable, whether or not called (excluding amounts credited), to such date on that ordinary share.
Under Australian law, an ordinary resolution is
passed on a show of hands if it is approved by a simple majority (more than 50%) of the votes cast by shareholders present (in person
or by proxy) and entitled to vote. If a poll is required or demanded, an ordinary resolution is passed if it is approved by holders representing
a simple majority of the total voting rights of shareholders present (in person or by proxy) who (being entitled to vote) vote on the
resolution. Special resolutions require the affirmative vote of not less than 75% of the votes cast by shareholders present (in person
or by proxy) and entitled to vote at the meeting.
to our Constitution, each shareholder entitled to attend and vote at a meeting may attend and vote:
person physically or, if the meeting is held including by using virtual meeting technology, by electronic
proxy, attorney or by representative; or
than in relation to any clause which specifies a quorum, a member who has duly lodged a valid
vote delivered to us by post, fax or other electronic means approved by the directors in
accordance with the Constitution.
Australian law, shareholders of a public listed company are generally not permitted to approve corporate matters by written consent.
Our Constitution does not specifically provide for cumulative voting.
that ADS holders may not directly vote at a meeting of the shareholders but may instruct the depositary to vote the number of deposited
ordinary shares their ADSs represent. Under voting by a show of hands, multiple “yes” votes by ADS holders will only count
as one “yes” vote and will be negated by a single “no” vote, unless a poll is demanded.
are a number of circumstances where the Corporations Act or the ASX Listing Rules prohibit or restrict certain shareholders or certain
classes of shareholders from voting. For example, key management personnel whose remuneration details are included elsewhere in this
prospectus are prohibited from voting on the resolution that must be proposed at each annual general meeting to adopt our remuneration
report, as well as any resolution to propose a spill meeting. An exception applies to exercising a directed proxy which indicates how
the proxy is to vote on the proposed resolution on behalf of someone other than the key management personnel or their closely related
parties; or that person is chair of the meeting and votes an undirected proxy where the shareholder expressly authorizes the chair to
exercise that power. Key management personnel and their closely related parties are also prohibited from voting undirected proxies
on remuneration related resolutions. A similar exception to that described above applies if the proxy is the chair of the meeting.
to Share in Our Profits
to the Corporations Act and pursuant to our Constitution, our shareholders are entitled to participate in our profits by payment of dividends.
The directors may by resolution declare a dividend or determine a dividend is payable, and may fix the amount, the time for and method
to Share in the Surplus in the Event of Winding Up
Constitution provides for the right of shareholders to participate in a surplus in the event of our winding up.
our Constitution and subject to the Corporations Act, the directors have power to issue and allot shares with any preferential, deferred
or special rights, privileges or conditions; with any restrictions in regard to the dividend, voting, return of capital or otherwise;
and preference shares which are liable to be redeemed or converted.
Constitution allows our directors to set aside any amount available for distribution as a dividend such amounts by way of reserves as
they think appropriate before declaring or determining to pay a dividend, and may apply the reserves for any purpose for which an amount
available for distribution as a dividend may be properly applied. Pending application or appropriation of the reserves, the directors
may invest or use the reserves in our business or in other investments as they think fit.
for Further Capital Calls
to our Constitution, our board of directors may make any calls from time to time upon shareholders in respect of all monies unpaid on
partly paid shares respectively held by them, subject to the terms upon which any of the partly paid shares have been issued. Each shareholder
is liable to pay the amount of each call in the manner, at the time and at the place specified by our board of directors. Calls may be
made payable by instalment.
Discriminating Against Holders of a Substantial Number of Shares
are no provisions under our Constitution discriminating against any existing or prospective holders of a substantial number of our ordinary
or Cancellation of Share Rights
rights attached to shares in a class of shares may only be varied or cancelled by a special resolution of shareholders, together with
special resolution passed at a separate meeting of members holding shares in the class; or
written consent of members with at least 75% of the votes in the class.
Meetings of Shareholders
meetings of shareholders may be called by our board of directors or, under the Corporations Act, by a single director. Except as permitted
under the Corporations Act, shareholders may not convene a meeting. Under the Corporations Act, shareholders with at least 5% of the
votes that may be cast at a general meeting may call and arrange to hold a general meeting. The Corporations Act requires the directors
to call and arrange to hold a general meeting on the request of shareholders with at least 5% of the votes that may be cast at a general
meeting. Notice of the proposed meeting of our shareholders is required at least 28 days prior to such meeting under the Corporations
A general meeting may be held at one or more
physical venues or at one or more physical venues and using virtual meeting technology.
business shall be transacted at any general meeting unless a quorum is present at the time when the meeting proceeds to business. Under
our Constitution, the presence, in person or by proxy, attorney or representative, of two shareholders constitutes a quorum, or if we
have less than two shareholders, then those shareholders constitute a quorum. If a quorum is not present within 30 minutes after the
time appointed for the meeting, the meeting must be either dissolved if it was requested or called by shareholders or adjourned in any
other case. A meeting adjourned for lack of a quorum is adjourned to the same day in the following week at the same time and place, unless
otherwise decided by our directors. The reconvened meeting is dissolved if a quorum is not present within 30 minutes after the time appointed
for the meeting.
of acquisition by foreign entities
Under Australian law, in certain circumstances foreign persons are prohibited from acquiring more than a limited
percentage of the shares in an Australian company without approval from the Australian Treasurer. These limitations are set forth in the
Australian Foreign Acquisitions and Takeovers Act 1975
(Cth) (“FATA”), associated legislation and regulations. These limitations are in addition to the more general overarching
Takeovers Prohibition of an acquisition of more than a 20% interest in a public company (in the absence of an applicable exception) under
the takeover provisions of Australia’s Corporations Act by any person whether foreign or otherwise.
Australian foreign investment regime applies differently to ‘foreign government investors’ and private foreign persons. Broadly,
entities are considered as foreign persons if (i) a foreign holder (together with its associates) holds a direct or indirect interest
of 20% or more in the entity or (ii) multiple foreign holders hold an aggregate interest (direct or indirect) of at least 40%.
the FATA, foreign persons are required to notify and obtain prior approval from the Foreign Investment Review Board for a range of acquisitions
of an interest in an Australian entity on a mandatory basis, including:
of a direct interest (generally 10% or more) by a foreign government investor in an Australian
entity, irrespective of value;
by any foreign person of:
|–||a ‘substantial interest’ (generally 20% or more) in an Australian entity valued above the relevant monetary threshold. This is generally A$289 million (indexed annually) or A$1,250 million in the case of U.S. investors, in each case calculated by the higher of the total asset value and the total value of the issued securities of the Australian entity; or|
|–||a direct interest in a ‘national security business’ or entity that carries on a national security business, or holds ‘national security land’, irrespective of value; and|
|●||acquisitions of interests in Australian entities operating in sensitive industries (such as media, telecommunications, transport, defence and military related industries and activities, encryption and security technologies and communications systems, as well as the extraction of uranium and plutonium or the operation of nuclear facilities), land-rich Australian entities or agribusiness Australian entities.|
Each foreign person seeking to acquire holdings in excess of the above caps (including their associates) would
need to complete an application form setting out the proposal and relevant particulars of the acquisition/shareholding and pay the relevant
application fees. The Australian Treasurer then has 30 days to consider the application and make a decision. However, the Australian Treasurer
may extend the period by up to a further 90 days by publishing an interim order. The Australian Foreign Investment Review Board, an Australian
advisory board to the Australian Treasurer has published a number
of guidance notes, including Guidance Note 1 titled Overview: Australia’s Foreign Investment Framework, which provides
an outline of the policy. As for the risk associated with seeking approval, Guidance Note 2, Key Concepts provides, among other
things, that the Treasurer may make an order which prohibits a proposed acquisition (among other things) if the Treasurer is satisfied
that proceeding with the acquisition would be contrary to the national interest or national security (as applicable).
the necessary approvals are not obtained, the Treasurer has a range of enforcement powers, including the power to make an order requiring
the acquirer to dispose of the shares it has acquired within a specified period of time. Once a foreign person (together with any associate)
holds a direct interest or a substantial interest in an entity, any further acquisition of interests, including in the course of trading
in the secondary market, would require a new FIRB approval unless an exemption applies.
of listed Australian public companies, such as Mesoblast, are regulated by the Corporations Act, which prohibits the acquisition of a
“relevant interest” in issued voting shares in a listed company if the acquisition will lead to that person’s or someone
else’s voting power in Mesoblast increasing from 20% or below to more than 20% or increasing from a starting point that is above
20% and below 90% (“Takeovers Prohibition”), subject to a range of exceptions.
a person will have a relevant interest in securities if the person:
the holder of the securities or the holder of an ADS over the shares;
power to exercise, or control the exercise of, a right to vote attached to the securities;
the power to dispose of, or control the exercise of a power to dispose of, the securities
(including any indirect or direct power or control)
If, at a
person has a relevant interest in issued securities; and
or enters into an agreement with another person with respect to the securities;
or gives another person an enforceable right, or has been or is given an enforceable right
by another person, in relation to the securities; or
or grants an option to, or has been or is granted an option by, another person with respect
to the securities; and
other person would have a relevant interest in the securities if the agreement were performed,
the right enforced or the option exercised,
the other person is taken to already have a relevant interest in the securities.
are a number of exceptions to the above Takeovers Prohibition on acquiring a relevant interest in issued voting shares above 20%. In
general terms, some of the more significant exceptions include:
the acquisition results from the acceptance of an offer under a formal takeover bid;
the acquisition is conducted on market by or on behalf of the bidder during the bid period for a full takeover bid that is unconditional
or only conditional on certain ‘prescribed’ matters set out in the Corporations Act;
the acquisition has been previously approved by resolution passed at general meeting by shareholders
acquisition by a person if, throughout the six months before the acquisition, that person
or any other person has had voting power in Mesoblast of at least 19% and, as a result of
the acquisition, none of the relevant persons would have voting power in Mesoblast more than
three percentage points higher than they had six months before the acquisition;
the acquisition results from the issue of securities under a pro rata rights issue to existing shareholders;
the acquisition results from the issue of securities under a dividend reinvestment plan or
bonus share plan;
the acquisition results from the issue of securities under certain underwriting arrangements;
the acquisition results from the issue of securities through a will or through operation
|●||an acquisition that arises through the acquisition of a relevant interest in another company listed on the ASX or another Australian financial market or a foreign stock exchange approved in writing by ASIC;|
acquisition arising from an auction of forfeited shares; or
acquisition arising through a compromise, arrangement, liquidation or buy-back.
formal takeover bid may either be a bid for all securities in the bid class or a fixed proportion of such securities, with each holder
of bid class securities receiving a bid for that proportion of their holding. Under our Constitution, a proportionate takeover bid must
first be approved by resolution of our shareholders in a general meeting before it may proceed.
Breaches of the takeovers provisions of the Corporations
Act are criminal offenses. In addition, ASIC and, on application by ASIC or an interested party, such as a shareholder, the Australian
Takeovers Panel have a wide range of powers relating to breaches of takeover provisions as well as, in the case of the Takeovers Panel
circumstances that the Panel determines to be ‘unacceptable’ (whether or not there is a breach), including the ability to make orders
cancelling contracts, freezing transfers of, and rights (including voting rights) attached to, securities, and forcing a party to dispose
of securities including by vesting the securities in ASIC for sale. There are limited defenses to breaches of the takeover provisions
provided in the Corporations Act.
There are no provisions in our Constitution that
require a shareholder to disclose ownership above a certain threshold. The Corporations Act, however, requires a substantial shareholder
to notify us and the ASX once a 5% interest in our ordinary shares is obtained. Further, once a shareholder has (alone or together with
associates) a 5% or greater interest in us, such shareholder must notify us and the ASX of that interest as well as of any increase or
decrease of 1% or more in its interest in our ordinary shares. In addition, the Constitution requires a shareholder to provide information
to Mesoblast in relation to its entry into any arrangement restricting the transfer or other disposal of shares, which are of the nature
of arrangements that Mesoblast is required to disclose under the ASX Listing Rules. Following our initial public offering in the United
States, our shareholders are also subject to disclosure requirements under U.S. securities laws.
of Shares and Change in Capital
to our Constitution, the Corporations Act, the ASX Listing Rules and any other applicable law, we may at any time grant options over
unissued shares and issue shares on any terms, with any preferential, deferred or special rights, privileges or conditions; with any
restrictions in regard to dividend, voting, return of capital or otherwise, and for the consideration and other terms that the directors
determine. Our power to issue shares includes the power to issue bonus shares (for which no consideration is payable to Mesoblast), preference
shares and partly paid shares.
Subject to the requirements of our Constitution,
the Corporations Act, the ASX Listing Rules and any other applicable law, including relevant shareholder approvals, we may reduce our
share capital (provided that the reduction is fair and reasonable to our shareholders as a whole, does not materially prejudice our ability
to pay creditors and obtains the necessary shareholder approval) or buy back our ordinary shares including under an equal access buy-back
or on a selective basis. Under the Constitution, the directors may do anything required to give effect to any resolution altering
or approving the reduction of our share capital.
to and Inspection of Documents
of our records is governed by the Corporations Act. Any member of the public has the right to inspect or obtain copies of our share registers
on the payment of a prescribed fee. Shareholders are not required to pay a fee for inspection of our share registers or minute books
of the meetings of shareholders. Other corporate records, including minutes of directors’ meetings, financial records and other
documents, are not open for inspection by shareholders. Where a shareholder is acting in good faith and an inspection is deemed to be
made for a proper purpose, a shareholder may apply to the court to make an order for inspection of our books.
American Depositary Receipts
JPMorgan Chase Bank, N.A., as depositary, will
register and deliver ADSs. Each ADS represents an ownership interest in five ordinary shares deposited with a custodian, as agent of the
depositary, under the deposit agreement among ourselves, the depositary and ADS holders. Each ADS will also represent any securities,
cash or other property deposited with the depositary but which they have not distributed directly to you. Unless certificated American
Depositary Receipts, or ADRs, are specifically requested by you, all ADSs will be issued on the books of our depositary in book-entry
form and periodic statements will be mailed to you which reflect your ownership interest in such ADSs. The depositary’s office is
located at 4 New York Plaza, Floor 12, New York, New York, 10004.
You may hold ADSs either directly or indirectly
through your broker or other financial institution. If you hold ADSs directly, by having an ADS registered in your name on the books of
the depositary, you are an ADR holder. This description assumes you hold your ADSs directly. If you hold the ADSs through your broker
or financial institution nominee, you must rely on the procedures of such broker or financial institution to assert the rights of an ADR
holder described in this section. You should consult with your broker or financial institution to find out what those procedures are.
As an ADR holder, we will not treat you as a shareholder
of ours and you will not have any shareholder rights. Australian law governs shareholder rights. Because the depositary or its nominee
will be the shareholder of record for the ordinary shares represented by all outstanding ADSs, shareholder rights rest with such record
holder. Your rights are those of an ADR holder. Such rights derive from the terms of the deposit agreement to be entered into among us,
the depositary and all registered holders from time to time of ADSs issued under the deposit agreement. The obligations of the depositary
and its agents are also set out in the deposit agreement. Because the depositary or its nominee will actually be the registered owner
of the ordinary shares, you must rely on it to exercise the rights of a shareholder on your behalf. The deposit agreement and the ADSs
are governed by New York law. Under the deposit agreement, as an ADR holder, you agree that any legal suit, action or proceeding against
or involving us or the depositary, arising out of or based upon the deposit agreement or transactions contemplated thereby, may only be
instituted in a state or federal court in New York, New York, and you irrevocably waive any objection which you may have to the laying
of venue of any such proceeding and irrevocably submit to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
The following is a summary of what we believe to
be the material terms of the deposit agreement. Notwithstanding this, because it is a summary, it may not contain all the information
that you may otherwise deem important. For more complete information, you should read the entire deposit agreement and the form of ADR
which contains the terms of your ADSs. You can read a copy of the deposit agreement which is filed as an exhibit to the registration statement
of which this prospectus forms a part. You may also find the registration statement and the attached deposit agreement on the SEC’s
website at http://www.sec.gov.
Ordinary Share Dividends and Other Distributions
How will I receive dividends and other distributions on the ordinary
shares underlying my ADSs?
We may make various types of distributions with
respect to our securities. The depositary has agreed that, to the extent practicable, it will pay to you the cash dividends or other distributions
it or the custodian receives on ordinary shares or other deposited securities, after converting any cash received into U.S. dollars (if
it determines such conversion may be made on a reasonable basis) and, in all cases, making any necessary deductions provided for in the
deposit agreement. The depositary may utilize a division, branch or affiliate of JPMorgan Chase Bank, N.A., to direct, manage and/or execute
any public and/or private sale of securities under the deposit agreement. Such division, branch and/or affiliate may charge the depositary
a fee in connection with such sales, which fee is considered an expense of the depositary. You will receive these distributions in proportion
to the number of underlying securities that your ADSs represent.
Except as stated below, the depositary will deliver
such distributions to ADR holders in proportion to their interests in the following manner:
|●||Cash. The depositary will distribute any U.S. dollars available to it resulting from a cash dividend or other cash distribution
or the net proceeds of sales of any other distribution or portion thereof (to the extent applicable), on an averaged or other practicable
basis, subject to (i) appropriate adjustments for taxes withheld, (ii) such distribution being impermissible or impracticable with respect
to certain registered ADR holders, and (iii) deduction of the depositary’s and/or its agents’ expenses in (1) converting any
foreign currency to U.S. dollars to the extent that it determines that such conversion may be made on a reasonable basis, (2) transferring
foreign currency or U.S. dollars to the United States by such means as the depositary may determine to the extent that it determines that
such transfer may be made on a reasonable basis, (3) obtaining any approval or license of any governmental authority required for such
conversion or transfer, which is obtainable at a reasonable cost and within a reasonable time and (4) making any sale by public or private
means in any commercially reasonable manner. If exchange rates fluctuate during a time when the depositary cannot convert a foreign
currency, you may lose some or all of the value of the distribution.
|●||Ordinary shares. In the case of a distribution in ordinary shares, the depositary will issue additional ADRs to evidence the
number of ADSs representing such ordinary shares. Only whole ADSs will be issued. Any ordinary shares which would result in fractional
ADSs will be sold and the net proceeds will be distributed in the same manner as cash to the ADR holders entitled thereto.
|●||Rights to receive additional ordinary shares. In the case of a distribution of rights to subscribe for additional ordinary
shares or other rights, if we timely provide evidence satisfactory to the depositary that it may lawfully distribute such rights, the
depositary will distribute warrants or other instruments in the discretion of the depositary representing such rights. However, if we
do not timely furnish such evidence, the depositary may:
|o||sell such rights if practicable and distribute the net proceeds in the same manner as cash to the ADR holders entitled thereto; or|
|o||if it is not practicable to sell such rights by reason of the non-transferability of the rights, limited markets therefor, their short
duration or otherwise, do nothing and allow such rights to lapse, in which case ADR holders will receive nothing and the rights may lapse.
|●||Other Distributions. In the case of a distribution of securities or property other than those described above, the depositary
may either (i) distribute such securities or property in any manner it deems equitable and practicable or (ii) to the extent the depositary
deems distribution of such securities or property not to be equitable and practicable, sell such securities or property and distribute
any net proceeds in the same way it distributes cash.
|●||Elective Distributions. In the case of a dividend payable at the election of our shareholders in cash or in additional ordinary
shares, we will notify the depositary at least 30 days prior to the proposed distribution stating whether or not we wish such elective
distribution to be made available to ADR holders. The depositary shall make such elective distribution available to ADR holders only if
(i) we shall have timely requested that the elective distribution is available to ADR holders, (ii) the depositary shall have determined
that such distribution is reasonably practicable and (iii) the depositary shall have received satisfactory documentation and opinions
within the terms of the deposit agreement. If the above conditions are not satisfied, the depositary shall, to the extent permitted by
law, distribute to the ADR holders, on the basis of the same determination as is made in the local market in respect of the ordinary shares
for which no election is made, either (i) cash or (ii) additional ADSs representing such additional ordinary shares. If the above conditions
are satisfied, the depositary shall establish procedures to enable ADR holders to elect the receipt of the proposed dividend in cash or
in additional ADSs. There can be no assurance that ADR holders generally, or any ADR holder in particular, will be given the opportunity
to receive elective distributions on the same terms and conditions as the holders of ordinary shares.
If the depositary determines in its discretion
that any distribution described above is not practicable with respect to any specific registered ADR holder, the depositary may, after
consultation with us if practicable, choose any method of distribution that it deems practicable for such ADR holder, including the distribution
of foreign currency, securities or property, or it may retain such items, without paying interest on or investing them, on behalf of the
ADR holder as deposited securities, in which case the ADSs will also represent the retained items.
Any U.S. dollars will be distributed by checks
drawn on a bank in the United States for whole dollars and cents. Fractional cents will be withheld without liability and dealt with by
the depositary in accordance with its then current practices.
The depositary is not responsible if it decides
that it is unlawful or not reasonably practicable to make a distribution available to any ADR holders. There can be no assurance that
the depositary will be able to convert any currency at a specified exchange rate or sell any property, rights, ordinary shares or other
securities at a specified price, nor that any of such transactions can be completed within a specified time period. For further information
about the general sale and/or purchase of securities see https://www.adr.com.
Deposit, Withdrawal and Cancellation
How does the depositary issue ADSs?
The depositary will issue ADSs if you or your
broker deposit ordinary shares or evidence of rights to receive ordinary shares with the custodian and pay the fees and expenses owing
to the depositary in connection with such issuance. In the case of the ADSs to be issued under this prospectus, we will arrange with the
underwriters named herein to deposit such ordinary shares.
Ordinary shares deposited in the future with the
custodian must be accompanied by certain delivery documentation and shall, at the time of such deposit, be registered in the name of JPMorgan
Chase Bank, N.A., as depositary for the benefit of holders of ADRs or in such other name as the depositary shall direct.
The custodian will hold all deposited ordinary
shares (including those being deposited by or on our behalf in connection with the offering to which this prospectus relates) for the
account of the depositary. ADR holders thus have no direct ownership interest in the ordinary shares and only have such rights as are
contained in the deposit agreement. The custodian will also hold any additional securities, property and cash received on or in substitution
for the deposited ordinary shares. The deposited ordinary shares and any such additional items are referred to as “deposited securities”.
Upon each deposit of ordinary shares, receipt
of related delivery documentation and compliance with the other provisions of the deposit agreement, including the payment of the fees
and charges of the depositary and any taxes or other fees or charges owing, the depositary will issue an ADR or ADRs in the name or upon
the order of the person entitled thereto evidencing the number of ADSs to which such person is entitled. All of the ADSs issued will,
unless specifically requested to the contrary, be part of the depositary’s direct registration system, and a registered holder will
receive periodic statements from the depositary which will show the number of ADSs registered in such holder’s name. An ADR holder
can request that the ADSs not be held through the depositary’s direct registration system and that a certificated ADR be issued.
How do ADR holders cancel an ADS and obtain deposited securities?
When you turn in your ADR certificate at the depositary’s
office, or when you provide proper instructions and documentation in the case of direct registration ADSs, the depositary will, upon payment
of certain applicable fees, charges and taxes, deliver the underlying ordinary shares to you or upon your written order. At your risk,
expense and request, the depositary may deliver deposited securities at such other place as you may request.
The depositary may only restrict the withdrawal
of deposited securities in connection with:
|●||temporary delays caused by closing our transfer books or those of the depositary or the deposit of ordinary shares in connection with
voting at a shareholders’ meeting, or the payment of dividends;
|●||the payment of fees, taxes and similar charges; or|
|●||compliance with any U.S. or foreign laws or governmental regulations relating to the ADRs or to the withdrawal of deposited securities.|
This right of withdrawal may not be limited by
any other provision of the deposit agreement.
The depositary may, after consultation with us
if practicable, fix record dates for the determination of the registered ADR holders who will be entitled (or obligated, as the case may
|●||to receive any distribution on or in respect of ordinary shares;|
|●||to give instructions for the exercise of voting rights at a meeting of holders of ordinary shares;|
|●||to pay the fee assessed by the depositary for administration of the ADR program and for any expenses as provided for in the ADR; or|
|●||to receive any notice or to act in respect of other matters,|
all subject to the provisions of the deposit agreement.
How do I vote?
If you are an ADR holder and the depositary asks
you to provide it with voting instructions, you may instruct the depositary how to exercise the voting rights for the ordinary shares
which underlie your ADSs. As soon as practicable after receiving notice of any meeting or solicitation of consents or proxies from us,
the depositary will distribute to the registered ADR holders a notice stating such information as is contained in the voting materials
received by the depositary and describing how you may instruct the depositary to exercise the voting rights for the ordinary shares which
underlie your ADSs, including instructions for giving a discretionary proxy to a person designated by us. For instructions to be valid,
the depositary must receive them in the manner, and on or before the date specified. The depositary will try, as far as is practical,
subject to the provisions of and governing the underlying ordinary shares or other deposited securities, to vote or to have its agents
vote the ordinary shares or other deposited securities as you instruct. The depositary will only vote or attempt to vote as you instruct.
Holders are strongly encouraged to forward their voting instructions to the depositary as soon as possible. Voting instructions will not
be deemed to be received until such time as the ADR department responsible for proxies and voting has received such instructions notwithstanding
that such instructions may have been physically received by the depositary prior to such time. The depositary will not itself exercise
any voting discretion. Furthermore, neither the depositary nor its agents are responsible for any failure to carry out any voting instructions,
for the manner in which any vote is cast or for the effect of any vote. Notwithstanding anything contained in the deposit agreement or
any ADR, the depositary may, to the extent not prohibited by law or regulations, or by the requirements of the stock exchange on which
the ADSs are listed, in lieu of distribution of the materials provided to the depositary in connection with any meeting of, or solicitation
of consents or proxies from, holders of deposited securities, distribute to the registered holders of ADRs a notice that provides such
holders with, or otherwise publicizes to such holders, instructions on how to retrieve such materials or receive such materials upon request
(i.e., by reference to a website containing the materials for retrieval or a contact for requesting copies of the materials).
There is no guarantee that you will receive voting
materials in time to instruct the depositary to vote and it is possible that you, or persons who hold their ADSs through brokers, dealers
or other third parties, will not have the opportunity to exercise a right to vote.
Reports and Other Communications
Will ADR holders be able to view our reports?
The depositary will make available for inspection
by ADR holders at the offices of the depositary and the custodian and a designated transfer office the deposit agreement, the provisions
of or governing deposited securities, and any written communications from us which are both received by the custodian or its nominee as
a holder of deposited securities and made generally available to the holders of deposited securities.
Additionally, if we make any written communications
generally available to holders of our ordinary shares, and we furnish copies thereof (or English translations or summaries) to the depositary,
it will distribute the same to registered ADR holders.
Fees and Expenses
What fees and expenses will I be responsible for paying?
The depositary may charge each person to whom
ADSs are issued, including, without limitation, issuances against deposits of ordinary shares, issuances in respect of ordinary share
distributions, rights and other distributions, issuances pursuant to a stock dividend or stock split declared by us or issuances pursuant
to a merger, exchange of securities or any other transaction or event affecting the ADSs or deposited securities, and each person surrendering
ADSs for withdrawal of deposited securities or whose ADRs are cancelled or reduced for any other reason, US$5.00 or less for each 100
ADSs (or any portion thereof) issued, delivered, reduced, cancelled or surrendered, as the case may be. The depositary may sell (by public
or private sale) sufficient securities and property received in respect of an ordinary share distribution, rights and/or other distribution
prior to such deposit to pay such charge.
The following additional charges shall be incurred
by the ADR holders, by any party depositing or withdrawing ordinary shares or by any party surrendering ADSs or to whom ADSs are issued
(including, without limitation, issuance pursuant to a stock dividend or stock split declared by us or an exchange of stock regarding
the ADSs or the deposited securities or a distribution of ADSs), whichever is applicable:
|●||a fee of US$1.50 per ADR or ADRs for transfers of certificated or direct registration ADRs;|
|●||a fee of up to US$0.05 per ADS for any cash distribution made pursuant to the deposit agreement;|
|●||a fee of up to US$0.05 per ADS per calendar year (or portion thereof) for services performed by the depositary in administering the ADRs (which fee may be charged on a periodic basis during each calendar year and shall be assessed against holders of ADRs as of the record date or record dates set by the depositary during each calendar year and shall be payable in the manner described in the next succeeding provision);|
|●||a fee for the reimbursement of such fees, charges and expenses as are incurred by the depositary and/or any of its agents (including, without limitation, the custodian and expenses incurred on behalf of holders in connection with compliance with foreign exchange control regulations or any law or regulation relating to foreign investment) in connection with the servicing of the ordinary shares or other deposited securities, the sale of securities (including, without limitation, deposited securities), the delivery of deposited securities or otherwise in connection with the depositary’s or its custodian’s compliance with applicable law, rule or regulation (which fees and charges shall be assessed on a proportionate basis against holders as of the record date or dates set by the depositary and shall be payable at the sole discretion of the depositary by billing such holders or by deducting such charge from one or more cash dividends or other cash distributions);|
|●||a fee for the distribution of securities (or the sale of securities in connection with a distribution), such fee being in an amount equal to the US$0.05 per ADS issuance fee for the execution and delivery of ADSs which would have been charged as a result of the deposit of such securities (treating all such securities as if they were ordinary shares) but which securities or the net cash proceeds from the sale thereof are instead distributed by the depositary to those holders entitled thereto;|
|●||stock transfer or other taxes and other governmental charges;|
|●||cable, telex and facsimile transmission and delivery charges incurred at your request in connection with the deposit or delivery of ordinary shares;|
|●||transfer or registration fees for the registration of transfer of deposited securities on any applicable register in connection with the deposit or withdrawal of deposited securities;|
|●||in connection with the conversion of foreign currency into U.S. dollars, JPMorgan Chase Bank, N.A. shall deduct out of such foreign currency the fees, expenses and other charges charged by it and/or its agent (which may be a division, branch or affiliate) so appointed in connection with such conversion; and|
of any division, branch or affiliate of the depositary utilized by the depositary to direct, manage and/or execute any public and/or
private sale of securities under the deposit agreement.
JPMorgan Chase Bank, N.A. and/or its agent may
act as principal for such conversion of foreign currency. For further details see https://www.adr.com.
We will pay all other charges and expenses of
the depositary and any agent of the depositary (except the custodian) pursuant to agreements from time to time between us and the depositary.
The charges described above may be amended from time to time by agreement between us and the depositary.
Our depositary has agreed to reimburse us for
certain expenses we incur that are related to establishment and maintenance of the ADR program upon such terms and conditions as we and
the depositary may agree from time to time. The depositary may make available to us a set amount or a portion of the depositary fees
charged in respect of the ADR program or otherwise upon such terms and conditions as we and the depositary may agree from time to time.
The depositary collects its fees for issuance and cancellation of ADSs directly from investors depositing ordinary shares or surrendering
ADSs for the purpose of withdrawal or from intermediaries acting for them. The depositary collects fees for making distributions to investors
by deducting those fees from the amounts distributed or by selling a portion of distributable property to pay the fees. The depositary
may collect its annual fee for depositary services by deduction from cash distributions, or by directly billing investors, or by charging
the book-entry system accounts of participants acting for them. The depositary will generally set off the amounts owing from distributions
made to holders of ADSs. If, however, no distribution exists and payment owing is not timely received by the depositary, the depositary
may refuse to provide any further services to holders that have not paid those fees and expenses owing until such fees and expenses have
been paid. At the discretion of the depositary, all fees and charges owing under the deposit agreement are due in advance and/or when
declared owing by the depositary.
The fees and charges you may be required to pay
may vary over time and may be changed by us and by the depositary. You will receive prior notice of the increase in any such fees and
Payment of Taxes
ADR holders must pay any tax or other governmental
charge payable by the custodian or the depositary on any ADS or ADR, deposited security or distribution. If an ADR holder owes any tax
or other governmental charge, the depositary may (i) deduct the amount thereof from any cash distributions, or (ii) sell deposited
securities (by public or private sale) and deduct the amount owing from the net proceeds of such sale. In either case the ADR holder remains
liable for any shortfall. Additionally, if any taxes or other governmental charges (including any penalties and/or interest) shall become
payable by or on behalf of the custodian or the depositary with respect to any ADR, any deposited securities represented by the ADSs evidenced
thereby or any distribution thereon, such tax or other governmental charge shall be paid by the holder thereof to the depositary and by
holding or having held an ADR the holder and all prior holders thereof, jointly and severally, agree to indemnify, defend and save harmless
each of the depositary and its agents in respect thereof. If any tax or governmental charge is unpaid, the depositary may also refuse
to effect any registration, registration of transfer, split-up or combination of deposited securities or withdrawal of deposited securities
until such payment is made. If any tax or governmental charge is required to be withheld on any cash distribution, the depositary may
deduct the amount required to be withheld from any cash distribution or, in the case of a non-cash distribution, sell the distributed
property or securities (by public or private sale) to pay such taxes and distribute any remaining net proceeds or the balance of any such
property after deduction of such taxes to the ADR holders entitled thereto.
By holding an ADR or an interest therein, you
will be agreeing to indemnify us, the depositary, its custodian and any of our or their respective officers, directors, employees, agents
and affiliates against, and hold each of them harmless from, any claims by any governmental authority with respect to taxes, additions
to tax, penalties or interest arising out of any refund of taxes, reduced rate of withholding at source or other tax benefit obtained.
Reclassifications, Recapitalizations and Mergers
If we take certain actions that affect the deposited
securities, including (i) split-up, consolidation, cancellation or other reclassification of deposited securities or (ii) any
distributions of ordinary shares or other property not made to holders of ADRs or (iii) any recapitalization, reorganization, merger,
consolidation, liquidation, receivership, bankruptcy or sale of all or substantially all of our assets, then the depositary may choose
to, and shall if reasonably requested by us:
|●||amend the form of ADR;|
|●||distribute additional or amended ADRs;|
|●||distribute cash, securities or other property it has received in connection with such actions;|
|●||sell any securities or property received and distribute the proceeds as cash; or|
If the depositary does not choose any of the above
options, any of the cash, securities or other property it receives will constitute part of the deposited securities and each ADS will
then represent a proportionate interest in such property.
Amendment and Termination
How may the deposit agreement be amended?
We may agree with the depositary to amend the
deposit agreement and the ADSs without your consent for any reason. ADR holders must be given at least 30 days notice of any amendment
that imposes or increases any fees or charges (other than stock transfer or other taxes and other governmental charges, transfer or registration
fees, cable, telex or facsimile transmission costs, delivery costs or other such expenses), or otherwise prejudices any substantial existing
right of ADR holders. Such notice need not describe in detail the specific amendments effectuated thereby, but must identify to ADR holders
a means to access the text of such amendment. If an ADR holder continues to hold an ADR or ADRs after being so notified, such ADR holder
is deemed to agree to such amendment and to be bound by the deposit agreement as so amended. Notwithstanding the foregoing, if any governmental
body or regulatory body should adopt new laws, rules or regulations which would require amendment or supplement of the deposit agreement
or the form of ADR to ensure compliance therewith, we and the depositary may amend or supplement the deposit agreement and the ADR at
any time in accordance with such changed laws, rules or regulations, which amendment or supplement may take effect before a notice is
given or within any other period of time as required for compliance. No amendment, however, will impair your right to surrender your ADSs
and receive the underlying securities, except in order to comply with mandatory provisions of applicable law.
How may the deposit agreement be terminated?
The depositary may, and shall at our written direction,
terminate the deposit agreement and the ADRs by mailing notice of such termination to the registered holders of ADRs at least 30 days
prior to the date fixed in such notice for such termination; provided, however, if the depositary shall have (i) resigned as depositary
under the deposit agreement, notice of such termination by the depositary shall not be provided to registered holders unless a successor
depositary shall not be operating under the deposit agreement within 45 days of the date of such resignation, and (ii) been removed
as depositary under the deposit agreement, notice of such termination by the depositary shall not be provided to registered holders of
ADRs unless a successor depositary shall not be operating under the deposit agreement on the 90th day after our notice
of removal was first provided to the depositary. After termination, the depositary’s only responsibility will be (i) to deliver
deposited securities to ADR holders who surrender their ADRs, and (ii) to hold or sell distributions received on deposited securities.
As soon as practicable after the expiration of six months from the termination date, the depositary will sell the deposited securities
which remain and hold the net proceeds of such sales (as long as it may lawfully do so), without liability for interest, in trust for
the ADR holders who have not yet surrendered their ADRs. After making such sale, the depositary shall have no obligations except to account
for such proceeds and other cash.
Limitations on Obligations and Liability to ADR holders
Limits on our obligations and the obligations of the depositary;
limits on liability to ADR holders and holders of ADSs
Prior to the issue, registration, registration
of transfer, split-up, combination, or cancellation of any ADRs, or the delivery of any distribution in respect thereof, and from time
to time in the case of the production of proofs as described below, we or the depositary or its custodian may require:
|●||payment with respect thereto of (i) any stock transfer or other tax or other governmental charge, (ii) any stock transfer or registration
fees in effect for the registration of transfers of ordinary shares or other deposited securities upon any applicable register and (iii)
any applicable fees and expenses described in the deposit agreement;
|●||the production of proof satisfactory to it of (i) the identity of any signatory and genuineness of any signature and (ii) such other information, including without limitation, information as to citizenship, residence, exchange control approval, beneficial ownership of any securities, compliance with applicable law, regulations, provisions of or governing deposited securities and terms of the deposit agreement and the ADRs, as it may deem necessary or proper; and|
|●||compliance with such regulations as the depositary may establish consistent with the deposit agreement.|
The issuance of ADRs, the acceptance of deposits
of ordinary shares, the registration, registration of transfer, split-up or combination of ADRs or the withdrawal of ordinary shares,
may be suspended, generally or in particular instances, when the ADR register or any register for deposited securities is closed or when
any such action is deemed advisable by the depositary; provided that the ability to withdraw ordinary shares may only be limited under
the following circumstances: (i) temporary delays caused by closing transfer books of the depositary or our transfer books or the
deposit of ordinary shares in connection with voting at a shareholders’ meeting, or the payment of dividends, (ii) the payment
of fees, taxes, and similar charges, and (iii) compliance with any laws or governmental regulations relating to ADRs or to the withdrawal
of deposited securities.
The deposit agreement expressly limits the obligations
and liability of the depositary, ourselves and our respective agents, provided, however, that no such disclaimer of liability under the
Securities Act is intended by any of the limitations of liabilities provisions of the deposit agreement. The deposit agreement it provides
that neither we nor the depositary nor any such agent will be liable if:
|●||any present or future law, rule, regulation, fiat, order or decree of the United States, Australia or any other country, or of any governmental or regulatory authority or securities exchange or market or automated quotation system, the provisions of or governing any deposited securities, any present or future provision of our charter, any act of God, war, terrorism, nationalization or other circumstance beyond our, the depositary’s or our respective agents’ control shall prevent or delay, or shall cause any of them to be subject to any civil or criminal penalty in connection with, any act which the deposit agreement or the ADRs provide shall be done or performed by us, the depositary or our respective agents (including, without limitation, voting);|
|●||it exercises or fails to exercise discretion under the deposit agreement or the ADR including, without limitation, any failure to determine that any distribution or action may be lawful or reasonably practicable;|
|●||it performs its obligations under the deposit agreement and ADRs without gross negligence or willful misconduct;|
|●||it takes any action or refrains from taking any action in reliance upon the advice of or information from legal counsel, accountants, any person presenting ordinary shares for deposit, any registered holder of ADRs, or any other person believed by it to be competent to give such advice or information; or|
|●||it relies upon any written notice, request, direction, instruction or document believed by it to be genuine and to have been signed, presented or given by the proper party or parties.|
Neither the depositary nor its agents have any
obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of any deposited securities or the ADRs.
We and our agents shall only be obligated to appear in, prosecute or defend any action, suit or other proceeding in respect of any deposited
securities or the ADRs, which in our opinion may involve us in expense or liability, if indemnity satisfactory to us against all expense
(including fees and disbursements of counsel) and liability is furnished as often as may be required. The depositary and its agents may
fully respond to any and all demands or requests for information maintained by or on its behalf in connection with the deposit agreement,
any registered holder or holders of ADRs, any ADRs or otherwise related to the deposit agreement or ADRs to the extent such information
is requested or required by or pursuant to any lawful authority, including without limitation laws, rules, regulations, administrative
or judicial process, banking, securities or other regulators. The depositary shall not be liable for the acts or omissions made by, or
the insolvency of, any securities depository, clearing agency or settlement system. Furthermore, the depositary shall not be responsible
for, and shall incur no liability in connection with or arising from, the insolvency of any custodian that is not a branch or affiliate
of JPMorgan Chase Bank, N.A. Notwithstanding anything to the contrary contained in the deposit agreement or any ADRs, the depositary shall
not be responsible for, and shall incur no liability in connection with or arising from, any act or omission to act on the part of the
custodian except to the extent that the (i) custodian committed fraud or willful misconduct in the provision of custodial services
to the depositary or (ii) failed to use reasonable care in the provision of custodial services to the depositary as determined in
accordance with the standards prevailing in the jurisdiction in which the custodian is located. The depositary shall not have any liability
for the price received in connection with any sale of securities, the timing thereof or any delay in action or omission to act nor shall
it be responsible for any error or delay in action, omission to act, default or negligence on the part of the party so retained in connection
with any such sale or proposed sale.
The depositary has no obligation to inform ADR
holders or other holders of an interest in any ADSs about the requirements of Australian law, rules or regulations or any changes therein
Additionally, none of us, the depositary or the
custodian shall be liable for the failure by any registered holder of ADRs or beneficial owner therein to obtain the benefits of credits
on the basis of non-U.S. tax paid against such holder’s or beneficial owner’s income tax liability. Neither we nor the depositary
shall incur any liability for any tax consequences that may be incurred by holders or beneficial owners on account of their ownership
of ADRs or ADSs.
Neither the depositary nor its agents will be
responsible for any failure to carry out any instructions to vote any of the deposited securities, for the manner in which any such vote
is cast or for the effect of any such vote. The depositary may rely upon instructions from us or its counsel in respect of any approval
or license required for any currency conversion, transfer or distribution. The depositary shall not incur any liability for the content
of any information submitted to it by us or on our behalf for distribution to ADR holders or for any inaccuracy of any translation thereof,
for any investment risk associated with acquiring an interest in the deposited securities, for the validity or worth of the deposited
securities, for the credit-worthiness of any third party, for allowing any rights to lapse upon the terms of the deposit agreement or
for the failure or timeliness of any notice from us. The depositary shall not be liable for any acts or omissions made by a successor
depositary whether in connection with a previous act or omission of the depositary or in connection with any matter arising wholly after
the removal or resignation of the depositary, provided that in connection with the issue out of which such potential liability arises
the depositary performed its obligations without negligence while it acted as depositary. Neither us, nor the depositary nor any of their
respective agents shall be liable to registered holders of ADRs or beneficial owners of interests in ADSs for any indirect, special, punitive
or consequential damages or lost profits, in each case of any form incurred by any person or entity, whether or not foreseeable and regardless
of the type of action in which such a claim may be brought.
In the deposit agreement each party thereto (including,
for avoidance of doubt, each holder and beneficial owner and/or holder of interests in ADRs and/or ADSs) irrevocably waives, to the fullest
extent permitted by applicable law, any right it may have to a trial by jury in any suit, action or proceeding against the depositary
and/or us directly or indirectly arising out of or relating to the ordinary shares or other deposited securities, the ADSs or the ADRs,
the deposit agreement or any transaction contemplated therein, or the breach thereof (whether based on contract, tort, common law or any
The depositary and its agents may own and deal
in any class of our securities and in ADSs.
Disclosure of Interest in ADSs
To the extent that the provisions of or governing
any deposited securities may require disclosure of or impose limits on beneficial or other ownership of deposited securities, other ordinary
shares and other securities and may provide for blocking transfer, voting or other rights to enforce such disclosure or limits, you agree
to comply with all such disclosure requirements and ownership limitations and to comply with any reasonable instructions we may provide
in respect thereof. We reserve the right to instruct you to deliver your ADSs for cancellation and withdrawal of the deposited securities
so as to permit us to deal with you directly as a holder of ordinary shares and, by holding an ADS or an interest therein, you will be
agreeing to comply with such instructions.
Books of Depositary
The depositary or its agent will maintain a register
for the registration, registration of transfer, combination and split-up of ADRs, which register shall include the depositary’s
direct registration system. Registered holders of ADRs may inspect such records at the depositary’s office at all reasonable times
for the purpose of communicating with other holders in the interest of the business of our company or a matter relating to the deposit
agreement. Such register may be closed from time to time, when deemed expedient by the depositary or, in the case of the issuance portion
of the ADR Register, when reasonably requested by us to enable us to comply with applicable law.
The depositary will maintain facilities for the
delivery and receipt of ADRs.
Pre-release of ADSs
In its capacity as depositary, the depositary
shall not lend ordinary shares or ADSs; provided, however, that the depositary may (i) issue ADSs prior to the receipt of ordinary
shares and (ii) deliver ordinary shares prior to the receipt of ADSs for withdrawal of deposited securities, including ADSs which
were issued under (i) above but for which ordinary shares may not have been received (each such transaction a “pre-release”).
The depositary may receive ADSs in lieu of ordinary shares under (i) above (which ADSs will promptly be canceled by the depositary
upon receipt by the depositary) and receive ordinary shares in lieu of ADSs under (ii) above. Each such pre-release will be subject
to a written agreement whereby the person or entity (the “applicant”) to whom ADSs or ordinary shares are to be delivered
(a) represents that at the time of the pre-release the applicant or its customer owns the ordinary shares or ADSs that are to be
delivered by the applicant under such pre-release, (b) agrees to indicate the depositary as owner of such ordinary shares or ADSs
in its records and to hold such ordinary shares or ADSs in trust for the depositary until such ordinary shares or ADSs are delivered to
the depositary or the custodian, (c) unconditionally guarantees to deliver to the depositary or the custodian, as applicable, such
ordinary shares or ADSs, and (d) agrees to any additional restrictions or requirements that the depositary deems appropriate. Each
such pre-release will be at all times fully collateralized with cash, U.S. government securities or such other collateral as the depositary
deems appropriate, terminable by the depositary on not more than five (5) business days’ notice and subject to such further
indemnities and credit regulations as the depositary deems appropriate. The depositary will normally limit the number of ADSs and ordinary
shares involved in such pre-release at any one time to thirty percent (30%) of the ADSs outstanding (without giving effect to ADSs
outstanding under (i) above), provided, however, that the depositary reserves the right to change or disregard such limit from time
to time as it deems appropriate. The depositary may also set limits with respect to the number of ADSs and ordinary shares involved in
pre-release with any one person on a case-by-case basis as it deems appropriate. The depositary may retain for its own account any compensation
received by it in conjunction with the foregoing. Collateral provided in connection with pre-release transactions, but not the earnings
thereon, shall be held for the benefit of the ADR holders (other than the applicant).
In the deposit agreement, each registered holder
of ADRs and each person holding an interest in ADSs, upon acceptance of any ADSs (or any interest therein) issued in accordance with the
terms and conditions of the deposit agreement will be deemed for all purposes to:
|●||be a party to and bound by the terms of the deposit agreement and the applicable ADR or ADRs, and|
|●||appoint the depositary its attorney-in-fact, with full power to delegate, to act on its behalf and to take any and all actions contemplated
in the deposit agreement and the applicable ADR or ADRs, to adopt any and all procedures necessary to comply with applicable laws and
to take such action as the depositary in its sole discretion may deem necessary or appropriate to carry out the purposes of the deposit
agreement and the applicable ADR and ADRs, the taking of such actions to be the conclusive determinant of the necessity and appropriateness
The deposit agreement and the ADRs shall be governed
by and construed in accordance with the laws of the State of New York. In the deposit agreement, we have submitted to the jurisdiction
of the courts of the State of New York and appointed an agent for service of process on our behalf. Notwithstanding the foregoing, any
action based on the deposit agreement may be instituted by the depositary in any competent court in Australia and/or the United States.
By holding an ADS or an interest therein, registered
holders of ADRs and owners of ADSs each irrevocably agree that any legal suit, action or proceeding against or involving us or the depositary,
arising out of or based upon the deposit agreement or the transactions contemplated thereby, may only be instituted in a state or federal
court in New York, New York, and each irrevocably waives any objection which it may have to the laying of venue of any such proceeding,
and irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
We may sell the ADSs in
any one or more of the following ways from time to time:
|●||to or through underwriters;|
|●||to or through dealers;|
|●||to our shareholders under a rights entitlement offering;|
|●||through agents; or|
|●||directly to purchasers, including our affiliates.|
The prospectus supplement relating to a particular
offering of the ADSs will set forth the terms of such offering, including:
|●||the name or names of any underwriters, dealers or agents and the amounts of securities underwritten or purchased by each of them;|
|●||the purchase price of the offered ADSs and the proceeds to us from such sale;|
|●||any underwriting discounts and commissions or agency fees and other items constituting underwriters’ or agents’ compensation;|
|●||the initial offering price; and|
|●||any discounts or concessions to be allowed or reallowed or paid to dealers.|
Any initial offering prices, discounts or concessions
allowed or reallowed or paid to dealers may be changed from time to time. In compliance with the guidelines of the Financial Industry
Regulatory Authority, Inc., or FINRA, the maximum commission or discount to be received by any FINRA member or independent broker dealer
may not exceed 8% of the aggregate value of the securities offered pursuant to this prospectus.
The distribution of the ADSs may be effected from
time to time in one or more transactions at a fixed price or prices, which may be changed, at market prices prevailing at the time of
sale, at prices related to the prevailing market prices or at negotiated prices. All ADSs would be listed on Nasdaq.
If the ADS are sold by means of an underwritten
offering, we will execute an underwriting agreement with an underwriter or underwriters, and the names of the specific managing underwriter
or underwriters, as well as any other underwriters, and the terms of the transaction, including commissions, discounts and any other compensation
of the underwriters and dealers, if any, will be set forth in the prospectus supplement which will be used by the underwriters to sell
the securities. If underwriters are utilized in the sale of the ADSs, the ADSs will be acquired by the underwriters for their own account
and may be resold from time to time in one or more transactions, including negotiated transactions, at fixed public offering prices or
at varying prices determined by the underwriters at the time of sale.
Our ADSs may be offered to the public either through
underwriting syndicates represented by managing underwriters or directly by the managing underwriters. If any underwriter or underwriters
are utilized in the sale of the securities, unless otherwise indicated in the prospectus supplement, the underwriting agreement will provide
that the obligations of the underwriters are subject to conditions precedent and that the underwriters with respect to a sale of securities
will be obligated to purchase all of those securities if they purchase any of those ADSs.
We may grant an option to the underwriters to purchase
additional ADSs to cover over-allotments, if any, at the public offering price with additional underwriting discounts or commissions.
If we grant any over-allotment option, the terms of any over-allotment option will be set forth in the prospectus supplement relating
to those securities.
If a dealer is utilized in the sale of ADSs in
respect of which this prospectus is delivered, we will sell those ADSs to the dealer as principal. The dealer may then resell those securities
to the public at varying prices to be determined by the dealer at the time of resale. Any reselling dealer may be deemed to be an underwriter,
as the term is defined in the Securities Act of the securities so offered and sold. The name of the dealer and the terms of the transaction
will be set forth in the related prospectus supplement.
Offers to purchase ADSs may be solicited by agents
designated by us from time to time. Any agent involved in the offer or sale of the ADSs in respect of which this prospectus is delivered
will be named, and any commissions payable by us to the agent will be set forth, in the applicable prospectus supplement. Unless otherwise
indicated in the prospectus supplement, any agent will be acting on a reasonable best efforts basis for the period of its appointment.
Any agent may be deemed to be an underwriter, as that term is defined in the Securities Act of the ADSs so offered and sold.
Offers to purchase ADSs may be solicited directly
by us and the sale of those ADSs may be made by us directly to institutional investors or others, who may be deemed to be underwriters
within the meaning of the Securities Act with respect to any resale of those ADSs. The terms of any sales of this type will be described
in the related prospectus supplement.
If so indicated in the prospectus supplement, we
will authorize underwriters or other persons acting as our agents to solicit offers by institutions to purchase ADSs from us pursuant
to contracts providing for payments and delivery on a future date. Institutions with which contracts of this type may be made include
commercial and savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions and others,
but in all cases those institutions must be approved by us. The obligations of any purchaser under any contract of this type will be subject
to the condition that the purchase of the ADSs shall not at the time of delivery be prohibited under the laws of the jurisdiction to which
the purchaser is subject. The underwriters and other persons acting as our agents will not have any responsibility in respect of the validity
or performance of those contracts.
One or more firms, referred to as “remarketing
firms,” may also offer or sell the ADSs, if the prospectus supplement so indicates, in connection with a remarketing arrangement
upon their purchase. Remarketing firms will act as principals for their own accounts or as our agents. These remarketing firms will offer
or sell the ADSs in accordance with a redemption or repayment pursuant to the terms of the ADSs. The prospectus supplement will identify
any remarketing firm and the terms of its agreement, if any, with us or any of our subsidiaries and will describe the remarketing firm’s
compensation. Remarketing firms may be deemed to be underwriters in connection with the ADSs they remarket.
Disclosure in the prospectus supplement of our
use of delayed delivery contracts will include the commission that underwriters and agents soliciting purchases of the ADSs under delayed
contracts will be entitled to receive in addition to the date when we will demand payment and delivery of the ADSs under the delayed delivery
contracts. These delayed delivery contracts will be subject only to the conditions that we describe in the prospectus supplement.
In connection with the offering of ADSs, persons
participating in the offering, such as any underwriters, may purchase and sell ADSs in the open market. These transactions may include
over-allotment and stabilizing transactions and purchases to cover syndicate short positions created in connection with the offering.
Stabilizing transactions consist of bids or purchases for the purpose of preventing or retarding a decline in the market price of the
ADSs, and syndicate short positions involve the sale by underwriters of a greater number of ADSs than they are required to purchase from
any issuer in the offering. Underwriters also may impose a penalty bid, whereby selling concessions allowed to syndicate members or other
broker-dealers in respect of the ADSs sold in the offering for their account may be reclaimed by the syndicate if the ADSs are repurchased
by the syndicate in stabilizing or covering transactions. These activities may stabilize, maintain or otherwise affect the market price
of the ADSs, which may be higher than the price that might prevail in the open market, and these activities, if commenced, may be discontinued
at any time.
Underwriters, dealers, agents and remarketing firms
may be entitled under relevant agreements entered into with us to indemnification by us against certain civil liabilities, including liabilities
under the Securities Act that may arise from any untrue statement or alleged untrue statement of a material fact or any omission or alleged
omission to state a material fact in this prospectus, any supplement or amendment hereto, or in the registration statement of which this
prospectus forms a part, or to contribution with respect to payments which the agents, underwriters or dealers may be required to make.
If ADSs are sold by means of a rights entitlement
offering, the prospectus supplement will set forth the terms and conditions of any such rights entitlement offering, including the manner
in which it will be conducted and details on how our shareholders can participate in any such offering. A rights entitlement offering
conducted under applicable Australian rules and regulations is a pro rata offering of ordinary shares to all eligible shareholders, as
at a specified record date. Under applicable ASX Listing Rules, shareholder approval is not required for a pro rata rights entitlement
Set forth below is an itemization of the estimated
expenses to be incurred in connection with the issuance and distribution of the ADSs registered under this registration statement. The
amounts in the table below are estimates, with the exception of the SEC registration fee. These estimates do not include expenses related
to offerings of particular securities. Each prospectus supplement describing an offering of ADSs will provide estimated expenses related
to the ADSs offered under that prospectus supplement.
|SEC registration fee||$||13,224|
|Legal fees and expenses||25,000|
|Accounting fees and expenses||50,000|
|Printing, publishing and filing expenses||5,000|
|Other miscellaneous fees and expenses||1,000|
The validity of the ADSs and certain other legal
matters will be passed upon for us by Rimôn Law, our Australian counsel.
The financial statements and management’s
assessment of the effectiveness of internal control over financial reporting (which is included in Management’s Report on Internal
Control over Financial Reporting) incorporated in this prospectus by reference to the Annual Report on Form 20-F for the year ended June
30, 2022 have been so incorporated in reliance on the report (which contains an explanatory paragraph relating to the Company’s
ability to continue as a going concern as described in Note 1(i) to the financial statements) of PricewaterhouseCoopers, an independent
registered public accounting firm, given on the authority of said firm as experts in auditing and accounting. The offices of PricewaterhouseCoopers
are located at 2 Riverside Quay, Southbank, Victoria, 3006, Australia.
We are a public limited company incorporated under
the laws of Australia. Certain of our directors are non-residents of the United States and all or substantially all of their assets are
located outside the United States. As a result, it may not be possible for you to:
|●||effect service of process within the United States upon our non-U.S. resident directors or on us;|
|●||enforce in U.S. courts judgments obtained against our non-U.S. resident directors or us in the U.S. courts in any action, including
actions under the civil liability provisions of U.S. securities laws;
|●||enforce in U.S. courts judgments obtained against our non-U.S. resident directors or us in courts of jurisdictions outside the United
States in any action, including actions under the civil liability provisions of U.S. securities laws; or
|●||bring an original action in an Australian court to enforce liabilities against Mesoblast or our non-U.S. resident directors based
solely upon U.S. securities laws.
You may also have difficulties enforcing in courts
outside the United States judgments that are obtained in U.S. courts against any of our non-U.S. resident directors or us, including actions
under the civil liability provisions of the U.S. securities laws.
With that noted, there are no treaties between
Australia and the United States that would affect the recognition or enforcement of foreign judgments in Australia. We also note that
investors may be able to bring an original action in an Australian court against us to enforce liabilities based in part upon U.S. federal
We have appointed Mesoblast, Inc., as our agent
to receive service of process with respect to any action brought against us in the U.S. District Court for the Southern District of New
York under the federal securities laws of the United States or any action brought against us in the Supreme Court of the State of New
York in the County of New York under the securities laws of the State of New York.
The SEC allows us to “incorporate by reference”
the information into this document prior to the completion of this offering. This means that we can disclose important information to
you by referring you to another document that we have filed separately with the SEC. The information incorporated by reference is considered
a part of this prospectus and you should read that information carefully. Certain information in this prospectus supersedes information
incorporated by reference that we filed with the SEC prior to the date of this prospectus. Certain information that we file later with
the SEC will automatically update and supersede the information in this prospectus. Any statement so modified
or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
by reference into this prospectus and the registration statement of which it is a part the following documents, including any amendments
to such filings:
|●||our Current Report on Form 6-K filed with the SEC on November 28, 2022, that contains our quarterly report for the three months ended on September 30, 2022|
|●||the descriptions of our ordinary shares and the American Depositary Shares representing the ordinary shares that are contained in Item 1 in our Form 8-A12B, filed on November 9, 2015;|
|●||any annual report on Form
20-F filed with the SEC after the date of this prospectus; and
|●||any other report on Form 6-K submitted to the SEC after the date of this prospectus and prior to the termination of this offering
of the ADSs, but only to the extent that the report expressly states that we incorporate such report by reference into this prospectus.
We have not authorized anyone else to provide
you with additional or different information to the information included in and incorporated by reference to this prospectus and any prospectus
supplement. You should rely only on the information provided by and incorporated by reference to this prospectus and any prospectus supplement.
Upon written or oral request, we shall provide
without charge to each person to whom a copy of this prospectus is delivered a copy of any or all of the documents that are incorporated
by reference to this prospectus but not delivered with this prospectus. You may request a copy of these filings by contacting us at Mesoblast
Limited, Level 38, 55 Collins Street, Melbourne, VIC 3000, Australia; Attention: Company Secretary; telephone +61 3 9639 6036.
We are subject to periodic reporting and other
informational requirements of the Exchange Act as applicable to foreign private issuers. We also have a registration statement on Form
F-3 filed with the SEC, including relevant exhibits, under the Securities Act with respect to the ADSs that may offered by this prospectus.
This prospectus, which constitutes a part of the registration statement, does not contain all of the information set forth in the registration
statement or the exhibits. As this prospectus does not contain all of the information contained in the registration statement, you should
read the registration statement and its exhibits for further information with respect to us and our securities. All information we file
with the SEC is available through the SEC’s Electronic Data Gathering, Analysis and Retrieval system, which may be accessed through
the SEC’s website at www.sec.gov. You can request copies of these documents upon payment of a duplicating fee, by writing to the
SEC. Please visit the SEC’s website at www.sec.gov for further information on the SEC’s Public Reference Room.
Our Annual Report on Form 20-F for fiscal 2022
has been filed with the SEC and an Annual Report on Form-20-F for subsequent years will be due within four months following the fiscal
We are not required to disclose certain other
information that is required from U.S. domestic issuers. As a foreign private issuer, we are exempt under the Exchange Act from, among
other things, the rules prescribing the furnishing and content of proxy statements, and our executive officers, directors and principal
shareholders are exempt from the reporting and short-swing profit recovery provisions contained in Section 16 of the Exchange Act and
Regulation FD (Fair Disclosure), which was adopted to ensure that select groups of investors are not privy to specific information about
an issuer before other investors.
We are, however, still subject to the anti-fraud
and anti-manipulation rules of the SEC, such as Rule 10b-5. Since many of the disclosure obligations required of us as a foreign private
issuer are different than those required by companies filing as a domestic issuer, our shareholders, potential shareholders and the investing
public in general should not expect to receive information about us in the same amount and at the same time as information is received
from, or provided by, companies filing as a domestic issuer. We are liable for violations of the rules and regulations of the SEC that
apply to us as a foreign private issuer.
We will also be subject to the informational requirements
of the ASX. Our public filings with the ASX are electronically available from the ASX website (www.asx.com.au).
Only the specific documents incorporated by reference
above, or incorporated by reference in any prospectus supplement, are to be deemed incorporated by reference into this prospectus and
the registration statement of which it is a part. No information available on or through our website, or any other website reference herein,
shall be deemed incorporated by reference into this prospectus.
Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers or controlling persons of Mesoblast, we have been advised that, in the
opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
Shares representing Ordinary Shares