As filed with the U.S. Securities and Exchange
Commission on December 22, 2023.
Registration No.
333-273532
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 3 TO FORM F-6
REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933 FOR
DEPOSITARY SHARES EVIDENCED BY AMERICAN DEPOSITARY
RECEIPTS
MESOBLAST LIMITED
(Exact name of issuer of deposited securities
as specified in its charter)
N/A
(Translation of issuer's name into English)
Australia
(Jurisdiction of incorporation or organization
of issuer)
JPMORGAN CHASE BANK, N.A.
(Exact name of depositary as specified in its
charter)
383 Madison Avenue, Floor 11
New York, New York 10179
Telephone: +1-800- 990-1135
(Address, including zip code, and telephone
number, including area code, of depositary's principal executive offices)
Mesoblast, Inc.
505 Fifth Avenue, Third Floor
New York, NY 10017
Telephone: +1-212-800-2060
(Address, including zip
code, and telephone number, including area code, of agent for service)
Copies to:
|
JPMorgan Chase Bank, N.A.
383 Madison Avenue, Floor 11
New York, New York 10179
Telephone: +1-800-990-1135
|
Scott R. Saks, Esq.
Norton Rose Fulbright US LLP
1301 Avenue of the Americas
New York, New York 10019-6022
Telephone: +1-212-318-3151
|
It is proposed that this filing become effective
under Rule 466
x immediately
upon filing
¨ on
(Date) at (Time)
If
a separate registration statement has been filed to register the deposited shares, check the following box. x
CALCULATION OF REGISTRATION FEE
|
Title of Each Class of
Securities to be Registered |
Amount
to be Registered |
Proposed Maximum
Aggregate Price
Per Unit (1) |
Proposed Maximum
Aggregate Offering
Price (2) |
Amount of
Registration Fee |
| American
Depositary Shares evidenced by American Depositary Receipts, each American Depositary Share representing ten (10) ordinary
shares of Mesoblast Limited. |
N/A |
N/A |
N/A |
N/A |
| (1) | Each unit represents one American Depositary Share. |
| (2) | Estimated solely for the purpose of calculating the registration fee. Pursuant to Rule 457(k), such
estimate is computed on the basis of the maximum aggregate fees or charges to be imposed in connection with the issuance of American Depositary
Receipts evidencing American Depositary Shares. |
Pursuant to Rule 429, the Prospectus contained
herein also relates to the American Depositary Shares registered under Form F-6 Registration Statement No. 333-207378. This
Registration Statement also constitutes Post-Effective Amendment No. 4 to Registration Statement No. 333-207378.
PART I
INFORMATION REQUIRED IN PROSPECTUS
The Prospectus consists
of the proposed form of American Depositary Receipt ("ADR" or "American Depositary Receipt") included as Exhibit
A to the form of Amendment No. 1 to the Amended and Restated Deposit Agreement filed as Exhibit (a)(2) to this
Post-Effective Amendment No. 3 to the Registration Statement on Form F-6, which is incorporated herein by reference.
Item 1. DESCRIPTION OF SECURITIES TO BE REGISTERED
CROSS REFERENCE SHEET
|
Item Number and Caption |
|
Location in Form of American Depositary
Receipt Filed Herewith as Prospectus |
| |
|
|
| (1) Name and address of Depositary |
|
Introductory paragraph and bottom of face of American Depositary Receipt |
| (2) Title of American Depositary Receipts and identity of deposited securities |
|
Face of American Depositary Receipt, top center |
| Terms of Deposit: |
|
|
| (i) Amount of deposited securities represented by one unit of American Depositary Shares |
|
Face of American Depositary Receipt, upper right corner |
| (ii) Procedure for voting, if any, the deposited securities |
|
Paragraphs (6), (11) and (12) |
| (iii) Procedure for collecting and distributing dividends |
|
Paragraphs (4), (5), (7), (10), (11), (13) and (20) |
| (iv) Procedures for transmitting notices, reports and proxy soliciting material |
|
Paragraphs (3), (8), (11) and (12) |
| (v) Sale or exercise of rights |
|
Paragraphs (3), (4), (5), (7) and (10) |
| (vi) Deposit or sale of securities resulting from dividends, splits or plans of reorganization |
|
Paragraphs (3), (4), (5), (7), (10), (11), (13) and (20) |
| (vii) Amendment, extension or termination of the Deposit Agreement |
|
Paragraphs (15), (16) and (17) |
| (viii) Rights of holders of ADRs to inspect the transfer books of the Depositary and the list of holders of ADRs |
|
Paragraph (3) |
| (ix) Restrictions upon the right to deposit or withdraw the underlying securities |
|
Paragraphs (1), (2), (4), (5) and (6) |
| (x) Limitation upon the liability of the Depositary |
|
Paragraphs (14), (17) and (19) |
| |
|
|
| (3) Fees and charges that a holder of ADRs may have to pay, either directly or indirectly |
|
Paragraph (7) |
Item 2. AVAILABLE INFORMATION
| Item Number and Caption |
|
Location in Form of American Depositary Receipt Filed Herewith as Prospectus |
| |
|
|
| Mesoblast Limited is subject to the periodic reporting requirements of the Securities Exchange Act of 1934, as amended, and accordingly
files certain reports with the Securities and Exchange Commission. These reports can be inspected and retrieved by holders
of American Depositary Receipts through the EDGAR system on the Securities and Exchange Commission’s Internet Website, currently
located at www.sec.gov, and can be inspected and copied at public reference facilities maintained by the Securities and Exchange
Commission, currently located at 100 F Street, N.E., Washington, D.C. 20549. |
|
Paragraph (8) |
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. EXHIBITS
| (a)(1) | Deposit Agreement. Amended and
Restated Deposit Agreement, dated as of October 19, 2015 (as from time to time amended, the "Deposit Agreement"),
among Mesoblast Limited (the “Company”), JPMorgan Chase Bank, N.A., as depositary (the "Depositary"), and all Holders
from time to time of American Depositary Receipts (“ADRs”) issued thereunder. Previously filed. |
| (a)(2) | Form of Amendment
No. 1 to the Deposit Agreement. Form of Amendment No. 1 to the Deposit Agreement among the Company, the
Depositary, and all Holders from time to time of ADRs issued thereunder, including the form of ADR attached as Exhibit A
thereto. Filed herewith as Exhibit (a)(2). |
| (b) | Any other agreement to which the Depositary is a party relating to the issuance of the American Depositary
Shares registered hereby or the custody of the deposited securities represented thereby. Not Applicable. |
| (c) | Every material contract relating to the deposited securities between the Depositary and the issuer of
the deposited securities in effect at any time within the last three years. Not Applicable. |
| (d) | Opinion of Norton Rose Fulbright US LLP, counsel to the Depositary, as to the legality of the securities
being registered. Previously filed. |
| (e) | Certification under Rule 466. Filed herewith as Exhibit (e). |
| (f) | Power of Attorney of certain officers and directors of the Company. Previously filed. |
Item 4. UNDERTAKINGS
| (a) | The Depositary hereby undertakes to make available at the principal office of the Depositary in the United
States, for inspection by holders of the American Depositary Receipts, any reports and communications received from the issuer of the
deposited securities which are both (1) received by the Depositary as the holder of the deposited securities, and (2) made generally
available to the holders of the underlying securities by the issuer. |
| (b) | If the amounts of fees charged are not disclosed in the prospectus, the Depositary undertakes to prepare
a separate document stating the amount of any fee charged and describing the service for which it is charged and to deliver promptly a
copy of such fee schedule without charge to anyone upon request. The Depositary undertakes to notify each registered holder of an American
Depositary Receipt thirty days before any change in the fee schedule. |
SIGNATURE
Pursuant
to the requirements of the Securities Act of 1933, as amended, JPMorgan Chase Bank, N.A., acting solely in its capacity as depositary
(the “Depositary”) on behalf of the legal entity created by the Amended and Restated Deposit Agreement (the “Deposit
Agreement”) among Mesoblast Limited, the Depositary and all Holders from time to time of American Depositary Receipts (“ADRs”)
issued thereunder, certifies that it has reasonable grounds to believe that all the requirements for filing on Form F-6 are met and
has duly caused this Post Effective Amendment No. 3 to the Registration Statement on Form F-6 to be signed on its behalf by
the undersigned, thereunto duly authorized, in The City of New York, State of New York, on December 22, 2023.
| |
Legal entity created by the Deposit Agreement for the |
| |
issuance of ADRs evidencing American Depositary Shares |
| |
|
| |
By: |
JPMORGAN CHASE BANK, N.A., solely in its |
| |
|
capacity as Depositary |
| |
|
|
| |
|
|
| |
By: |
/s/ Lisa M. Hayes |
| |
|
Name: |
Lisa M. Hayes |
| |
|
Title: |
Vice President |
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, as amended, Mesoblast Limited certifies that it has reasonable grounds to believe that all the requirements for filing on
Form F-6 are met and has duly caused this Post-Effective Amendment No. 3 to the Registration Statement on Form F-6 to be
signed on its behalf by the undersigned, thereunto duly authorized, in City of Melbourne, Australia, on December 22, 2023.
| |
MESOBLAST LIMITED |
| |
|
| |
By: |
/s/ Silviu Itescu |
| |
|
Name: |
Silviu Itescu |
| |
|
Title: |
Managing Director and Chief Executive Officer |
Pursuant
to the requirements of the Securities Act of 1933, as amended, this Post-Effective Amendment No. 3 to the Registration Statement
on Form F-6 has been signed by the following persons in the capacities indicated on December 22, 2023.
SIGNATURES
| Signature |
|
Title |
| |
|
|
| * |
|
Chairman of the Board of Directors |
| Joseph R. Swedish |
|
|
| |
|
|
| /s/ Silviu Itescu |
|
Chief Executive Officer and Director |
| Silviu Itescu |
|
(principal executive officer) |
| |
|
|
| /s/ Andrew Chaponnel |
|
Interim Chief Financial Officer |
| Andrew Chaponnel |
|
(principal financial and accounting officer) |
| |
|
|
| * |
|
Vice Chairman of the Board of Directors |
| William Burns |
|
|
| |
|
|
| * |
|
Director |
| Jane Bell |
|
|
| |
|
|
| * |
|
Director |
| Eric Rose |
|
|
| |
|
|
| |
|
|
| * |
|
Director |
| Philip J. Facchina |
|
|
| |
|
|
| * |
|
Director |
| Philip Krause |
|
|
| *By: |
/s/ Andrew Chaponnel |
|
| |
Name: |
Andrew Chaponnel |
|
| |
Title: |
Attorney-in Fact |
|
SIGNATURE OF AUTHORIZED U.S. REPRESENTATIVE
OF THE REGISTRANT
Pursuant
to the requirements of the Securities Act of 1933, as amended, the undersigned, the duly authorized representative in the United States
of Mesoblast Limited, has signed this Post-Effective Amendment No. 3 to the Registration Statement on Form F-6 in Melbourne,
Australia, on December 22, 2023.
| |
Authorized U.S. Representative |
| |
|
| |
|
| |
|
Mesoblast, Inc. |
| |
|
|
| |
|
|
| |
|
By: |
/s/ Silviu Itescu |
| |
|
|
Name: |
Silviu Itescu |
| |
|
|
Title: |
Chief Executive Officer |
INDEX TO EXHIBITS
Exhibit (a)(2)
AMENDMENT NO. 1, dated as of ___________________
__, 202__ (the “Amendment”), to the Amended and Restated Deposit Agreement, dated as of October 19, 2015, (as previously amended,
the “Deposit Agreement”, among MESOBLAST LIMITED and its successors (the “Company”), JPMORGAN CHASE BANK, N.A.,
a national banking association organized under the laws of the United States of America, as depositary hereunder (in such capacity, the
“Depositary”), and all holders from time to time of American Depositary Receipts (“ADRs”) issued thereunder.
W I T N E S S E T H:
WHEREAS, the Company and the Depositary executed
the Deposit Agreement for the purposes set forth therein; and
WHEREAS, pursuant to paragraph (16) of the form
of ADR set forth in Exhibit A of the Deposit Agreement, and incorporated by reference therein, the Company and the Depositary desire
to amend the terms of the Deposit Agreement and the ADRs.
NOW, THEREFORE, for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Company and the Depositary hereby agree to amend the Deposit Agreement
as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. Unless
otherwise defined in this Amendment, all capitalized terms used, but not otherwise defined, herein shall have the meaning given to such
terms in the Deposit Agreement.
ARTICLE II
AMENDMENTS TO DEPOSIT AGREEMENT AND ADRS
SECTION 2.01. All references in the
Deposit Agreement to the term “Deposit Agreement” shall, as of and effective from and after the Effective Time (as defined
below), refer to the Deposit Agreement as further amended by this Amendment.
SECTION 2.02. The address of the Depositary
set forth in Section 16(a) of the Deposit Agreement is deleted and replaced with the following:
| “(a) |
JPMorgan Chase Bank, N.A. |
| |
383 Madison Avenue, Floor 11 |
| |
New York, New York, 10179 |
| |
Attention: Depositary Receipts Group |
| |
Fax: (302) 220-4591” |
SECTION 2.03. Each ADS shall
represent ten (10) Shares (the “ADR Ratio Change”) effective as of the open of trading of the ADSs on the Nasdaq Global
Select Market on January 5, 2024 (U.S. Eastern Time) (the “Effective Time”).
SECTION 2.04. The title and first two
paragraphs of Paragraph (2) on page A-2 contained in the form of ADR attached as Exhibit A to the Deposit Agreement and all outstanding
ADRs is replaced in its entirety immediately prior to the third and final paragraph of Paragraph (1) that is to remain in the form of
ADR:
“(1) Issuance of ADSs. This ADR
is one of the ADRs issued under the Deposit Agreement. Subject to the other provisions hereof, the Depositary may so issue ADRs for delivery
at the Transfer Office (as hereinafter defined) only against deposit of: (i) Shares in a form satisfactory to the Custodian; or (ii) rights
to receive Shares from the Company or any registrar, transfer agent, clearing agent or other entity recording Share ownership or transactions.
At the request, risk and expense of the person depositing Shares or rights to receive Shares, the Depositary may accept such Shares and/or
deposits for forwarding to the Custodian and may deliver ADRs at a place other than its office. Shares or evidence of rights to receive
Shares may be deposited through (x) electronic transfer of such Shares to the account maintained by the Custodian for such purpose at
any electronic clearing system or centralized securities depository applicable for the Shares, (y) evidence satisfactory to the Custodian
of irrevocable instructions to cause such Shares to be transferred to such account or (z) delivery of the certificates representing such
Shares. If use of any book entry system at any electronic clearing system or centralized securities depository applicable for the Shares
is discontinued at any time for any reason, the Company shall make other book-entry arrangements (if any) that it determines, after consultation
with the Depositary, are reasonable.
In its capacity as Depositary, the Depositary
shall not lend Shares or ADSs.”
SECTION 2.05. Paragraph (7) contained
in the form of ADR attached as Exhibit A to the Deposit Agreement and all outstanding ADRs is replaced in its entirety with the
following:
"(7) Charges of Depositary.
(a) Rights of the Depositary. The Depositary
may charge, and collect from, (i) each person to whom ADSs are issued, including, without limitation, issuances against deposits of Shares,
issuances in respect of Share Distributions, Rights and Other Distributions (as such terms are defined in paragraph (10) (Distributions
on Deposited Securities)), issuances pursuant to a stock dividend or stock split declared by the Company, or issuances pursuant to
a merger, exchange of securities or any other transaction or event affecting the ADSs or the Deposited Securities, and (ii) each person
surrendering ADSs for withdrawal of Deposited Securities or whose ADSs are cancelled or reduced for any other reason, a fee of up to U.S.$5.00
for each 100 ADSs (or portion thereof) issued, delivered, reduced, cancelled or surrendered, or upon which a Share Distribution or elective
distribution is made or offered (as the case may be). The Depositary may sell (by public or private sale) sufficient securities and property
received in respect of Share Distributions, Rights and Other Distributions prior to such deposit to pay such charge.
(b) Additional
Fees, Charges and Expenses by the Depositary. The following additional fees, charges and expenses shall also be incurred by the Holders,
the Beneficial Owners, by any party depositing or withdrawing Shares or by any party surrendering ADSs and/or to whom ADSs are issued
(including, without limitation, issuances pursuant to a stock dividend or stock split declared by the Company or an exchange of stock
regarding the ADSs or the Deposited Securities or a distribution of ADSs pursuant to paragraph (10) (Distributions on Deposited Securities)),
whichever is applicable:
| (i) | a fee of up to U.S.$0.05 per ADS held for any Cash distribution made, or for any elective cash/stock
dividend offered, pursuant to the Deposit Agreement, |
| (ii) | a fee of up to U.S.$0.05 per ADS held for the direct or indirect distribution of securities (other than
ADSs or rights to purchase additional ADSs pursuant to paragraph (10) hereof) or the net cash proceeds from the public or private sale
of any such securities, regardless of whether any such distribution and/or sale is made by, for, or received from, or (in each case) on
behalf of, the Depositary, the Company and/or any third party (which fee may be assessed against Holders as of a record date set by the
Depositary), |
| (iii) | an aggregate fee of up to U.S.$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 as of the record date or record dates set by the Depositary during each calendar year 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),
and |
| (iv) | an amount for the reimbursement of such charges and expenses as are incurred by the Depositary and/or
any of its agents (including, without limitation, the Custodian, as well as charges 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 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 charges and expenses may 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
or expense from one or more cash dividends or other cash distributions). |
(c) Other
Obligations, Fees, Charges and Expenses. The Company will pay all other fees, charges and expenses of the Depositary and any agent
of the Depositary (except the Custodian) pursuant to agreements from time to time between the Company and the Depositary, except:
| (i) | stock transfer or other taxes and other governmental charges (which are payable by Holders or persons
depositing Shares); |
| (ii) | a transaction fee per cancellation request (including any cancellation request made through SWIFT, facsimile
transmission or any other method of communication) as disclosed on the "Disclosures" page (or successor page) of www.adr.com
(as updated by the Depositary from time to time, "ADR.com") and any applicable delivery expenses (which are payable by such
persons or Holders); and |
| (iii) | transfer or registration expenses for the registration or transfer of Deposited Securities on any applicable
register in connection with the deposit or withdrawal of Deposited Securities (which are payable by persons depositing Shares or Holders
withdrawing Deposited Securities). |
(d) Foreign
Exchange Related Matters. To facilitate the administration of various depositary receipt transactions, including disbursement of dividends
or other cash distributions and other corporate actions, the Depositary may engage the foreign exchange desk within JPMorgan Chase Bank,
N.A. (the "Bank") and/or its affiliates in order to enter into spot foreign exchange transactions to convert foreign currency
into U.S. dollars ("FX Transactions"). For certain currencies, FX Transactions are entered into with the Bank or an affiliate,
as the case may be, acting in a principal capacity. For other currencies, FX Transactions are routed directly to and managed by an unaffiliated
local custodian (or other third-party local liquidity provider), and neither the Bank nor any of its affiliates is a party to such FX
Transactions.
The foreign exchange rate applied to an FX
Transaction will be either (i) a published benchmark rate, or (ii) a rate determined by a third-party local liquidity provider, in each
case plus or minus a spread, as applicable. The Depositary will disclose which foreign exchange rate and spread, if any, apply to such
currency on the "Disclosures" page (or successor page) of ADR.com. Such applicable foreign exchange rate and spread may (and
neither the Depositary, the Bank nor any of their affiliates is under any obligation to ensure that such rate does not) differ from rates
and spreads at which comparable transactions are entered into with other customers or the range of foreign exchange rates and spreads
at which the Bank or any of its affiliates enters into foreign exchange transactions in the relevant currency pair on the date of the
FX Transaction. Additionally, the timing of execution of an FX Transaction varies according to local market dynamics, which may include
regulatory requirements, market hours and liquidity in the foreign exchange market or other factors. Furthermore, the Bank and its affiliates
may manage the associated risks of their position in the market in a manner they deem appropriate without regard to the impact of such
activities on the Company, the Depositary, Holders or Beneficial Owners. The spread applied does not reflect any gains or losses that
may be earned or incurred by the Bank and its affiliates as a result of risk management or other hedging related activity.
Notwithstanding the foregoing, to the extent
the Company provides U.S. dollars to the Depositary, neither the Bank nor any of its affiliates will execute an FX Transaction as set
forth herein. In such case, the Depositary will distribute the U.S. dollars received from the Company. Further details relating to the
applicable foreign exchange rate, the applicable spread and the execution of FX Transactions will be provided by the Depositary on ADR.com.
The Company, Holders and Beneficial Owners each acknowledge and agree that the terms applicable to FX Transactions disclosed from time
to time on ADR.com will apply to any FX Transaction executed pursuant to the Deposit Agreement.
(e) The
right of the Depositary to charge and receive payment of fees, charges and expenses as provided above shall survive the termination of
the Deposit Agreement. Upon the resignation or removal of the Depositary, such right shall extend for those fees, charges and expenses
incurred prior to the effectiveness of such resignation or removal.
(f) Disclosure
of Potential Depositary Payments. The Depositary anticipates reimbursing the Company for certain expenses incurred by the Company
that are related to the establishment and maintenance of the ADR program upon such terms and conditions as the Company and the Depositary
may agree from time to time. The Depositary may make available to the Company 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 the Company and the Depositary may agree from time to time.
(g) The
Depositary may agree to reduce or waive certain fees, charges and expenses provided herein and in the Deposit Agreement, including, without
limitation, those described in this paragraph (7) that would normally be charged on ADSs issued to or at the direction of, or otherwise
held by, the Company and/or certain Holders and Beneficial Owners and holders and beneficial owners of Shares of the Company."
SECTION 2.06. The last sentence of the
“[FORM OF FACE OF ADR]” immediately following the signature block of the Depositary contained in the form of ADR attached
as Exhibit A to the Deposit Agreement and all outstanding ADRs is deleted and replaced with the following sentence:
“The Depositary's office is located at
383 Madison Avenue, Floor 11, New York, New York 10179.”
SECTION 2.07. The "Table
of Contents" of the Deposit Agreement and all references to the applicable paragraph headings contained in the Deposit Agreement
and the form of ADR attached as Exhibit A to the Deposit Agreement are updated and amended to reflect the amendments set forth in this
Article II and the page references included in the "Table of Contents" of the Deposit Agreement are updated and amended to reflect
the same.
SECTION 2.08. The form of ADR
attached as Exhibit A to the Deposit Agreement and all ADRs issued prior to or subsequent to the Effective Time hereof (including,
without limitation, the terms of each ADS issued prior to or subsequent to the Effective Time) are amended and restated to reflect the
amendments set forth in this Article II and read as set forth in Exhibit A attached hereto.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Representations and Warranties.
The Company represents and warrants to, and agrees with, the Depositary, that:
(a) This Amendment, when executed and delivered
by the Company, will be duly and validly authorized, executed and delivered by the Company, and it and the Deposit Agreement as amended
hereby constitute the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their respective
terms, subject to bankruptcy, insolvency, fraudulent transfer, moratorium and similar laws of general applicability relating to or affecting
creditors’ rights and to general equity principles; and
(b) In order to ensure the legality, validity,
enforceability or admissibility into evidence of this Amendment and the Deposit Agreement as amended hereby, neither of such agreements
need to be filed or recorded with any court or other authority in Australia, nor does any stamp or similar tax or governmental charge
need to be paid in Australia on or in respect of such agreements and documents.
ARTICLE IV
MISCELLANEOUS
SECTION 4.01. Effective Time. The ADR Ratio Change
and this Amendment shall be effective as of the Effective Time, as of the date set forth above, provided that any amendment contained
herein (other than the ADR Ratio Change which shall be effective as of the Effective Time) 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 or other such expenses), or that shall otherwise prejudice any substantial existing right of Holders, shall become effective 30
days after notice of such amendment shall have been given to the Holders. After the Effective Time, each Holder and beneficial owner shall,
in all respect be deemed, by continuing to hold ADSs, to have consented and agreed to this Amendment and to be subject to and bound by
all of the terms and conditions of the Deposit Agreement, as amended by this Amendment.
SECTION 4.02. Ratification; Rights and Obligations; Conflicts.
By executing this Amendment, the parties hereto ratify and confirm the terms of the Deposit Agreement, as modified by the terms of this
Amendment. Other than set forth herein, nothing in this Amendment shall affect any of the respective rights and obligations of any of
the parties hereto under the Deposit Agreement. If there shall be any conflict in the terms and conditions of the Deposit Agreement and
the terms and conditions of this Amendment, the terms and conditions of this Amendment shall control and be binding.
SECTION 4.03. Outstanding ADRs. As of the Effective
Time, ADRs issued prior to or subsequent to the Effective Time (including, without limitation, the terms of each ADS issued prior to or
subsequent to the Effective Time), which do not reflect the amendments and changes to the form of ADR effected hereby, are hereby deemed
amended to reflect such changes to the form of ADR effected hereto and to conform to the form of ADR set forth in Exhibit A attached
hereto, and do not need to be called in for exchange and may remain outstanding until such time as the Holders thereof choose to surrender
them for any reason under the Deposit Agreement.
SECTION 4.04. Indemnification and Exoneration.
The indemnification provisions contained in Section 15 of the Deposit Agreement and the exoneration provisions contained in paragraph
(14) of the form of ADR attached as Exhibit A to the Deposit Agreement are each incorporated herein by this reference and are deemed
to be a part hereof and applicable hereto as if directly set forth herein, and such provisions shall apply to any and all losses, liabilities,
expenses and/or damages the Depositary and/or Custodian incur or suffer in connection with, as a result or by reason of, the terms of
this Amendment and the transactions contemplated herein.
SECTION 4.05. Governing Law. This This Amendment
shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to the application
of the conflict of law principles thereof.
SECTION 4.06. Incorporation by Reference. The
provisions of Sections 16 through 18 of the Deposit Agreement are each incorporated herein by this reference and are deemed to be a part
hereof and applicable hereto as if directly set forth herein.
SECTION 4.07. Counterparts. This Amendment may
be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original and all of which shall constitute
the same instrument. Delivery of an executed signature page of this Amendment by facsimile or other electronic transmission (including
“.pdf”, “.tif” or similar format) shall be effective as delivery of a manually executed counterpart hereof.
[Signature page follows.]
IN WITNESS WHEREOF, MESOBLAST LIMITED and JPMORGAN
CHASE BANK, N.A. have duly executed this Amendment No. 1 to Amended and Restated Deposit Agreement as of the day and year first above
set forth and all holders of ADRs shall become parties hereto.
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JPMORGAN CHASE BANK, N.A. |
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[Signature Page to Amendment No. 1 to Amended
and Restated Deposit Agreement.]
EXHIBIT A
TO
AMENDMENT NO. 1 TO AMENDED AND RESTATED DEPOSIT AGREEMENT
ANNEXED TO AND INCORPORATED IN
DEPOSIT AGREEMENT
[FORM OF FACE OF ADR]
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No. of ADSs: |
| Number |
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Each ADS represents
Ten (10) Shares |
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CUSIP: |
AMERICAN DEPOSITARY RECEIPT
evidencing
AMERICAN DEPOSITARY SHARES
representing
ORDINARY SHARES
of
MESOBLAST LIMITED
(Incorporated under the laws of the Commonwealth
of Australia)
JPMORGAN CHASE BANK, N.A., a national banking association
organized under the laws of the United States of America, as depositary hereunder (the "Depositary"), hereby certifies that
________________________________ is the registered owner (a "Holder") of ________________________________ American Depositary
Shares ("ADSs"), each (subject to paragraph (13)) representing ten (10) ordinary shares (including the rights to receive
Shares described in paragraph (1), "Shares" and, together with any other securities, cash or property from time to time held
by the Depositary in respect or in lieu of deposited Shares, the "Deposited Securities"), of Mesoblast Limited, a corporation
organized under the laws of the Commonwealth of Australia (the "Company"), deposited under the Amended and Restated Deposit
Agreement dated as of October 19, 2015 (as amended from time to time, the "Deposit Agreement") among the Company, the Depositary
and all Holders from time to time of American Depositary Receipts issued thereunder ("ADRs"), each of whom by accepting an ADR
becomes a party thereto. The Deposit Agreement and this ADR (which includes the provisions set forth on the reverse hereof)
shall be governed by and construed in accordance with the laws of the State of New York.
(1) Issuance of ADSs. This
ADR is one of the ADRs issued under the Deposit Agreement. Subject to the other provisions hereof, the Depositary may so issue ADRs for
delivery at the Transfer Office (as hereinafter defined) only against deposit of: (i) Shares in a form satisfactory to the Custodian;
or (ii) rights to receive Shares from the Company or any registrar, transfer agent, clearing agent or other entity recording Share
ownership or transactions. At the request, risk and expense of the person depositing Shares or rights to receive Shares, the Depositary
may accept such Shares and/or deposits for forwarding to the Custodian and may deliver ADRs at a place other than its office. Shares or
evidence of rights to receive Shares may be deposited through (x) electronic transfer of such Shares to the account maintained by
the Custodian for such purpose at any electronic clearing system or centralized securities depository applicable for the Shares, (y) evidence
satisfactory to the Custodian of irrevocable instructions to cause such Shares to be transferred to such account or (z) delivery
of the certificates representing such Shares. If use of any book entry system at any electronic clearing system or centralized securities
depository applicable for the Shares is discontinued at any time for any reason, the Company shall make other book-entry arrangements
(if any) that it determines, after consultation with the Depositary, are reasonable.
In its capacity as Depositary, the Depositary shall
not lend Shares or ADSs.
Every person depositing Shares under the Deposit
Agreement represents and warrants that (a) such Shares are duly authorized, validly issued and outstanding, fully paid, nonassessable
and legally obtained by such person (b) all pre-emptive and comparable rights, if any, with respect to such Shares have been validly
waived or exercised, (c) the person making such deposit is duly authorized so to do, (d) the Shares presented for deposit are
free and clear of any lien, encumbrance, security interest, charge, mortgage or adverse claim and (e) such Shares (A) are not
"restricted securities" as such term is defined in Rule 144 under the Securities Act of 1933 ("Restricted Securities")
unless at the time of deposit the requirements of paragraphs (c), (e), (f) and (h) of Rule 144 shall not apply and such
Shares may be freely transferred and may otherwise be offered and sold freely in the United States or (B) have been registered under
the Securities Act of 1933. To the extent the person depositing Shares is an "affiliate" of the Company as such term is defined
in Rule 144, the person also represents and warrants that upon the sale of the ADSs, all of the provisions of Rule 144 which
enable the Shares to be freely sold (in the form of ADSs) will be fully complied with and, as a result thereof, all of the ADSs issued
in respect of such Shares will not be on the sale thereof, Restricted Securities. Such representations and warranties shall
survive the deposit and withdrawal of Shares and the issuance and cancellation of ADSs in respect thereof and the transfer of such ADSs. The
Depositary may refuse to accept for such deposit any Shares identified by the Company in order to facilitate compliance with the requirements
of the Securities Act of 1933 or the Rules made thereunder
(2) Withdrawal of Deposited Securities. Subject
to paragraphs (4) and (5), upon surrender of (i) a certificated ADR in a form satisfactory to the Depositary at the Transfer
Office or (ii) proper instructions and documentation in the case of a Direct Registration ADR, the Holder hereof is entitled to delivery
from the Custodian's office of the Deposited Securities at the time represented by the ADSs evidenced by this ADR, provided that the Depositary
may deliver Shares prior to the receipt of ADSs for withdrawal of Deposited Securities, including ADSs which were issued under (1) above
but for which Shares may not have been received (until such ADSs are actually deposited, "Pre-released Shares") only if all
the conditions in (1) above related to such Pre-Release are satisfied). At the request, risk and expense of
the Holder hereof, the Depositary may deliver such Deposited Securities at such other place as may have been requested by the Holder. Notwithstanding
any other provision of the Deposit Agreement or this ADR, the withdrawal of Deposited Securities may be restricted only for the reasons
set forth in General Instruction I.A.(1) of Form F-6 (as such instructions may be amended from time to time) under the Securities
Act of 1933.
(3) Transfers of ADRs. The
Depositary or its agent will keep, at a designated transfer office (the "Transfer Office"), (a) a register (the "ADR
Register") for the registration, registration of transfer, combination and split-up of ADRs, and, in the case of Direct Registration
ADRs, shall include the Direct Registration System, which at all reasonable times will be open for inspection by Holders and the Company
for the purpose of communicating with Holders in the interest of the business of the Company or a matter relating to the Deposit Agreement
and (b) facilities for the delivery and receipt of ADRs. The term ADR Register includes the Direct Registration System. Title
to this ADR (and to the Deposited Securities represented by the ADSs evidenced hereby), when properly endorsed (in the case of ADRs in
certificated form) or upon delivery to the Depositary of proper instruments of transfer, is transferable by delivery with the
same effect as in the case of negotiable instruments under the laws of the State of New York; provided that the Depositary, notwithstanding
any notice to the contrary, may treat the person in whose name this ADR is registered on the ADR Register as the absolute owner hereof
for all purposes and neither the Depositary nor the Company will have any obligation or be subject to any liability under the Deposit
Agreement to any holder of an ADR, unless such holder is the Holder thereof. Subject to paragraphs (4) and (5), this ADR
is transferable on the ADR Register and may be split into other ADRs or combined with other ADRs into one ADR, evidencing the aggregate
number of ADSs surrendered for split-up or combination, by the Holder hereof or by duly authorized attorney upon surrender of this ADR
at the Transfer Office properly endorsed (in the case of ADRs in certificated form) or upon delivery to the Depositary of proper
instruments of transfer and duly stamped as may be required by applicable law; provided that the Depositary may close the ADR Register
at any time or from time to time when deemed expedient by it or, in the case of the issuance portion of the ADR Register, when reasonably
requested by the Company solely in order to enable the Company to comply with applicable law. At the request of a Holder, the
Depositary shall, for the purpose of substituting a certificated ADR with a Direct Registration ADR, or vice versa, execute and deliver
a certificated ADR or a Direct Registration ADR, as the case may be, for any authorized number of ADSs requested, evidencing the same
aggregate number of ADSs as those evidenced by the certificated ADR or Direct Registration ADR, as the case may be, substituted.
(4) Certain Limitations. Prior
to the issue, registration, registration of transfer, split-up or combination of any ADR, the delivery of any distribution in respect
thereof, or, subject to the last sentence of paragraph (2), the withdrawal of any Deposited Securities, and from time to time in the case
of clause (b)(ii) of this paragraph (4), the Company, the Depositary or the Custodian may require: (a) 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 Shares or other Deposited Securities upon any applicable register and (iii) any
applicable charges as provided in paragraph (7) of this ADR; (b) 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 this ADR, as it may deem necessary or proper; and
(c) compliance with such regulations as the Depositary may establish consistent with the Deposit Agreement. The issuance
of ADRs, the acceptance of deposits of Shares, the registration, registration of transfer, split-up or combination of ADRs or, subject
to the last sentence of paragraph (2), the withdrawal of Deposited Securities 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.
(5) Taxes. If any
tax 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 this ADR, any Deposited Securities represented by the ADSs evidenced hereby or any distribution thereon, such
tax or other governmental charge shall be paid by the Holder hereof to the Depositary and by holding or having held an ADR the Holder
and all prior Holders hereof, jointly and severally, agree to indemnify, defend and save harmless each of the Depositary and its agents
in respect thereof. The Depositary may refuse to effect any registration, registration of transfer, split-up or combination
hereof or, subject to the last sentence of paragraph (2), any withdrawal of such Deposited Securities until such payment is made. The
Depositary may also deduct from any distributions on or in respect of Deposited Securities, or may sell by public or private sale for
the account of the Holder hereof any part or all of such Deposited Securities (after attempting by reasonable means to notify the Holder
hereof prior to such sale), and may apply such deduction or the proceeds of any such sale in payment of such tax or other governmental
charge, the Holder hereof remaining liable for any deficiency, and shall reduce the number of ADSs evidenced hereby to reflect any such
sales of Shares. In connection with any distribution to Holders, the Company will remit to the appropriate governmental authority or agency
all amounts (if any) required to be withheld and owing to such authority or agency by the Company; and the Depositary and the Custodian
will remit to the appropriate governmental authority or agency all amounts (if any) required to be withheld and owing to such authority
or agency by the Depositary or the Custodian. The Depositary will forward to the Company such information from its transfer records maintained
by it in its capacity as depositary hereunder as the Company may reasonably request to enable the Company to file any necessary reports
with governmental authorities or agencies. If the Depositary determines that any distribution in property other than cash (including
Shares or rights) on Deposited Securities is subject to any tax that the Depositary or the Custodian is obligated to withhold, the Depositary
may dispose of all or a portion of such property in such amounts and in such manner as the Depositary deems necessary and practicable
to pay such taxes, by public or private sale, and the Depositary shall distribute the net proceeds of any such sale or the balance of
any such property after deduction of such taxes to the Holders entitled thereto. Each Holder of an ADR or an interest therein agrees to
indemnify the Depositary, the Company, the Custodian and any of 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.
(6) Disclosure of Interests. 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 Shares and other securities and may provide for blocking transfer, voting or other rights to
enforce such disclosure or limits, Holders and all persons holding ADRs agree to comply with all such disclosure requirements and ownership
limitations and to comply with any reasonable Company instructions in respect thereof. The Company reserves the right to instruct Holders
to deliver their ADSs for cancellation and withdrawal of the Deposited Securities so as to permit the Company to deal directly with the
Holder thereof as a holder of Shares and Holders agree to comply with such instructions. The Depositary agrees to cooperate
with the Company in its efforts to inform Holders of the Company's exercise of its rights under this paragraph and agrees to consult with,
and provide reasonable assistance without risk, liability or expense on the part of the Depositary, to the Company on the manner or manners
in which it may enforce such rights with respect to any Holder.
(7) Charges of Depositary.
(a) Rights of the Depositary. The
Depositary may charge, and collect from, (i) each person to whom ADSs are issued, including, without limitation, issuances against
deposits of Shares, issuances in respect of Share Distributions, Rights and Other Distributions (as such terms are defined in paragraph
(10) (Distributions on Deposited Securities)), issuances pursuant to a stock dividend or stock split declared by the Company, or
issuances pursuant to a merger, exchange of securities or any other transaction or event affecting the ADSs or the Deposited Securities,
and (ii) each person surrendering ADSs for withdrawal of Deposited Securities or whose ADSs are cancelled or reduced for any other
reason, a fee of up to U.S.$5.00 for each 100 ADSs (or portion thereof) issued, delivered, reduced, cancelled or surrendered, or upon
which a Share Distribution or elective distribution is made or offered (as the case may be). The Depositary may sell (by public or private
sale) sufficient securities and property received in respect of Share Distributions, Rights and Other Distributions prior to such deposit
to pay such charge.
(b) Additional Fees, Charges and Expenses
by the Depositary. The following additional fees, charges and expenses shall also be incurred by the Holders, the beneficial owners,
by any party depositing or withdrawing Shares or by any party surrendering ADSs and/or to whom ADSs are issued (including, without limitation,
issuances pursuant to a stock dividend or stock split declared by the Company or an exchange of stock regarding the ADSs or the Deposited
Securities or a distribution of ADSs pursuant to paragraph (10) (Distributions on Deposited Securities)), whichever is applicable:
| (i) | a fee of up to U.S.$0.05 per ADS held for any Cash distribution made, or for any elective cash/stock dividend offered, pursuant to
the Deposit Agreement, |
| (ii) | a fee of up to U.S.$0.05 per ADS held for the direct or indirect distribution of securities (other than ADSs or rights to purchase
additional ADSs pursuant to paragraph (10) hereof) or the net cash proceeds from the public or private sale of any such securities, regardless
of whether any such distribution and/or sale is made by, for, or received from, or (in each case) on behalf of, the Depositary, the Company
and/or any third party (which fee may be assessed against Holders as of a record date set by the Depositary), |
| (iii) | an aggregate fee of up to U.S.$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 as of the record
date or record dates set by the Depositary during each calendar year 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), and |
| (iv) | an amount for the reimbursement of such charges and expenses as are incurred by the Depositary and/or any of its agents (including,
without limitation, the Custodian, as well as charges 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 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 charges
and expenses may 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 or expense from one or more cash
dividends or other cash distributions). |
(c) Other Obligations, Fees, Charges and
Expenses. The Company will pay all other fees, charges and expenses of the Depositary and any agent of the Depositary (except the
Custodian) pursuant to agreements from time to time between the Company and the Depositary, except:
| (i) | stock transfer or other taxes and other governmental charges (which are payable by Holders or persons depositing Shares); |
| (ii) | a transaction fee per cancellation request (including any cancellation request made through SWIFT, facsimile transmission or any other
method of communication) as disclosed on the "Disclosures" page (or successor page) of www.adr.com (as updated by the Depositary
from time to time, "ADR.com") and any applicable delivery expenses (which are payable by such persons or Holders); and |
| (iii) | transfer or registration expenses for the registration or transfer of Deposited Securities on any applicable register in connection
with the deposit or withdrawal of Deposited Securities (which are payable by persons depositing Shares or Holders withdrawing Deposited
Securities). |
(d) Foreign Exchange Related Matters.
To facilitate the administration of various depositary receipt transactions, including disbursement of dividends or other cash distributions
and other corporate actions, the Depositary may engage the foreign exchange desk within JPMorgan Chase Bank, N.A. (the "Bank")
and/or its affiliates in order to enter into spot foreign exchange transactions to convert foreign currency into U.S. dollars ("FX
Transactions"). For certain currencies, FX Transactions are entered into with the Bank or an affiliate, as the case may be, acting
in a principal capacity. For other currencies, FX Transactions are routed directly to and managed by an unaffiliated local custodian (or
other third-party local liquidity provider), and neither the Bank nor any of its affiliates is a party to such FX Transactions.
The foreign exchange rate applied to an FX Transaction
will be either (i) a published benchmark rate, or (ii) a rate determined by a third-party local liquidity provider, in each
case plus or minus a spread, as applicable. The Depositary will disclose which foreign exchange rate and spread, if any, apply to such
currency on the "Disclosures" page (or successor page) of ADR.com. Such applicable foreign exchange rate and spread may
(and neither the Depositary, the Bank nor any of their affiliates is under any obligation to ensure that such rate does not) differ from
rates and spreads at which comparable transactions are entered into with other customers or the range of foreign exchange rates and spreads
at which the Bank or any of its affiliates enters into foreign exchange transactions in the relevant currency pair on the date of the
FX Transaction. Additionally, the timing of execution of an FX Transaction varies according to local market dynamics, which may include
regulatory requirements, market hours and liquidity in the foreign exchange market or other factors. Furthermore, the Bank and its affiliates
may manage the associated risks of their position in the market in a manner they deem appropriate without regard to the impact of such
activities on the Company, the Depositary, Holders or beneficial owners. The spread applied does not reflect any gains or losses that
may be earned or incurred by the Bank and its affiliates as a result of risk management or other hedging related activity.
Notwithstanding the foregoing, to the extent the
Company provides U.S. dollars to the Depositary, neither the Bank nor any of its affiliates will execute an FX Transaction as set forth
herein. In such case, the Depositary will distribute the U.S. dollars received from the Company.
Further details relating to the applicable foreign
exchange rate, the applicable spread and the execution of FX Transactions will be provided by the Depositary on ADR.com. The Company,
Holders and beneficial owners each acknowledge and agree that the terms applicable to FX Transactions disclosed from time to time on ADR.com
will apply to any FX Transaction executed pursuant to the Deposit Agreement.
(e) The right of the Depositary to charge and
receive payment of fees, charges and expenses as provided above shall survive the termination of the Deposit Agreement. Upon the resignation
or removal of the Depositary, such right shall extend for those fees, charges and expenses incurred prior to the effectiveness of such
resignation or removal.
(f) Disclosure of Potential Depositary Payments.
The Depositary anticipates reimbursing the Company for certain expenses incurred by the Company that are related to the establishment
and maintenance of the ADR program upon such terms and conditions as the Company and the Depositary may agree from time to time. The Depositary
may make available to the Company 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 the Company and the Depositary may agree from time to time.
(g) The Depositary may agree to reduce or waive
certain fees, charges and expenses provided herein and in the Deposit Agreement, including, without limitation, those described in this
paragraph (7) that would normally be charged on ADSs issued to or at the direction of, or otherwise held by, the Company and/or certain
Holders and beneficial owners and holders and beneficial owners of Shares of the Company.
(8) Available Information. The
Deposit Agreement, the provisions of or governing Deposited Securities and any written communications from the Company, 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, are available for inspection by Holders at the offices of the Depositary and the Custodian and at the Transfer Office. The
Depositary will distribute copies of such communications (or English translations or summaries thereof) to Holders when furnished by the
Company. As of the date of the Deposit Agreement the Company publishes information in English required to maintain the exemption from
registration under Rule 12g3-2(b) under the Securities Exchange Act of 1934 on its Internet Web site (www.mesoblast.com) or
through an electronic information delivery system generally available to the public in its primary trading market. The Company represents
that as of the date of the Deposit Agreement, the statements in the previous sentence of this paragraph (8) with respect to the exemption
from registration under Rule 12g3-2(b) under the Securities Exchange Act of 1934, as amended, are true and correct. The
Company agrees to promptly notify the Depositary in the event of any change in the truth of any such statements and at such time as the
last sentence of this paragraph is applicable. At such time as the Company becomes subject to the periodic reporting requirements
of the Securities Exchange Act of 1934, the Company shall file certain reports with the United States Securities and Exchange Commission
(the "Commission") which may be inspected and copied through the Commission’s EDGAR system or at public reference facilities
maintained by the Commission located at the date hereof at 100 F Street, NE, Washington, DC 20549. The Depositary does not
assume any duty to determine if the Company is complying with the requirements of the Securities Exchange Act of 1934 or to take any action
if the Company is not complying with those requirements.
(9) Execution. This
ADR shall not be valid for any purpose unless executed by the Depositary by the manual or facsimile signature of a duly authorized officer
of the Depositary.
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JPMORGAN CHASE BANK, N.A., as Depositary |
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By |
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Authorized Officer |
The Depositary's office is located at 383 Madison
Avenue, Floor 11, New York, New York 10179.
[FORM OF REVERSE OF ADR]
(10) Distributions on Deposited Securities. Subject
to paragraphs (4) and (5), to the extent practicable, the Depositary will distribute as soon as reasonably practicable to each Holder
entitled thereto on the record date set by the Depositary therefor at such Holder's address shown on the ADR Register, in proportion to
the number of Deposited Securities (on which the following distributions on Deposited Securities are received by the Custodian) represented
by ADSs evidenced by such Holder's ADRs: (a) Cash. Any U.S. dollars available to the Depositary resulting
from a cash dividend or other cash distribution or the net proceeds of sales of any other distribution or portion thereof authorized in
this paragraph (10) ("Cash"), 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 Holders, and (iii) deduction
of the Depositary's and/or its agents' fees and expenses in (1) converting any foreign currency to U.S. dollars by sale or in such
other manner as the Depositary may determine 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. (b) Shares. (i) Additional ADRs
evidencing whole ADSs representing any Shares available to the Depositary resulting from a dividend or free distribution on Deposited
Securities consisting of Shares (a "Share Distribution") and (ii) U.S. dollars available to it resulting from the net proceeds
of sales of Shares received in a Share Distribution, which Shares would give rise to fractional ADSs if additional ADRs were issued therefor,
as in the case of Cash. (c) Rights. (i) Warrants or other instruments in the discretion of the Depositary
representing rights to acquire additional ADRs in respect of any rights to subscribe for additional Shares or rights of any nature available
to the Depositary as a result of a distribution on Deposited Securities ("Rights"), to the extent that the Company timely furnishes
to the Depositary evidence satisfactory to the Depositary that the Depositary may lawfully distribute the same (the Company has no obligation
to so furnish such evidence), or (ii) to the extent the Company does not so furnish such evidence and sales of Rights are practicable,
any U.S. dollars available to the Depositary from the net proceeds of sales of Rights as in the case of Cash, or (iii) to the extent
the Company does not so furnish such evidence and such sales cannot practicably be accomplished by reason of the nontransferability of
the Rights, limited markets therefor, their short duration or otherwise, nothing (and any Rights may lapse). (d) Other
Distributions. (i) Securities or property available to the Depositary resulting from any distribution on Deposited
Securities other than Cash, Share Distributions and Rights ("Other Distributions"), by any means that the Depositary
may deem equitable and practicable, or (ii) to the extent the Depositary deems distribution of such securities or property not to
be equitable and practicable, any U.S. dollars available to the Depositary from the net proceeds of sales of Other Distributions as in
the case of Cash. The Depositary reserves the right to 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 hereunder. 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 contemplated above and/or under
paragraph (7) hereof. Any U.S. dollars available 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. All purchases and sales of securities will be handled by the Depositary in accordance with its then current policies,
which are currently set forth in the "Depositary Receipt Sale and Purchase of Security" section of https://www.adr.com/Investors/FindOutAboutDRs,
the location and contents of which the Depositary shall be solely responsible for.
(11) Record Dates. The
Depositary may, after consultation with the Company if practicable, fix a record date (which, to the extent applicable, shall be as near
as practicable to any corresponding record date set by the Company) for the determination of the Holders who shall be responsible for
the fee assessed by the Depositary for administration of the ADR program and for any expenses provided for in paragraph (7) hereof
as well as for the determination of the Holders who shall be entitled to receive any distribution on or in respect of Deposited Securities,
to give instructions for the exercise of any voting rights, to receive any notice or to act in respect of other matters and only such
Holders shall be so entitled or obligated.
(12) Voting of Deposited Securities. As
soon as practicable after receipt from the Company of notice of any meeting or solicitation of consents or proxies of holders of Shares
or other Deposited Securities, the Depositary shall distribute to Holders a notice stating (a) such information as is contained in
such notice and any solicitation materials, (b) that each Holder on the record date set by the Depositary therefor will, subject
to any applicable provisions of Australian law, be entitled to instruct the Depositary as to the exercise of the voting rights, if any,
pertaining to the Deposited Securities represented by the ADSs evidenced by such Holder's ADRs and (c) the manner in which such instructions
may be given, including instructions to give a discretionary proxy to a person designated by the Company. Upon actual receipt
by the ADR department of the Depositary of instructions of a Holder on such record date in the manner and on or before the time established
by the Depositary for such purpose, the Depositary shall endeavor insofar as practicable and permitted under the provisions of or governing
Deposited Securities to vote or cause to be voted the Deposited Securities represented by the ADSs evidenced by such Holder's ADRs in
accordance with such instructions. The Depositary will not itself exercise any voting discretion in respect of any Deposited
Securities. There is no guarantee that Holders generally or any Holder in particular will receive the notice described above
with sufficient time to enable such Holder to return any voting instructions to the Depositary in a timely manner. 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 Holders
a notice that provides Holders with, or otherwise publicizes to 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 and/or a contact for requesting
copies of the materials). Holders are strongly encouraged to forward their voting instructions as soon as possible. Voting
instructions will not be deemed 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 JPMorgan Chase Bank, N.A., as Depositary, prior to such time.
(13) Changes Affecting Deposited
Securities. Subject to paragraphs (4) and (5), the Depositary may, in its discretion, and shall if reasonably requested
by the Company, amend this ADR or distribute additional or amended ADRs (with or without calling this ADR for exchange) or cash, securities
or property on the record date set by the Depositary therefor to reflect any change in par value, split-up, consolidation, cancellation
or other reclassification of Deposited Securities, any Share Distribution or Other Distribution not distributed to Holders or any cash,
securities or property available to the Depositary in respect of Deposited Securities from (and the Depositary is hereby authorized to
surrender any Deposited Securities to any person and, irrespective of whether such Deposited Securities are surrendered or otherwise cancelled
by operation of law, rule, regulation or otherwise, to sell by public or private sale any property received in connection with) any recapitalization,
reorganization, merger, consolidation, liquidation, receivership, bankruptcy or sale of all or substantially all the assets of the Company,
and to the extent the Depositary does not so amend this ADR or make a distribution to Holders to reflect any of the foregoing, or the
net proceeds thereof, whatever cash, securities or property results from any of the foregoing shall constitute Deposited Securities and
each ADS evidenced by this ADR shall automatically represent its pro rata interest in the Deposited Securities as then constituted. Promptly
upon the occurrence of any of the aforementioned changes affecting Deposited Securities, the Company shall notify the Depositary
in writing of such occurrence and as soon as practicable after receipt of such notice from the Company, may instruct the Depositary to
give notice thereof, at the Company's expense, to Holders in accordance with the provisions hereof. Upon receipt of such instruction,
the Depositary shall give notice to the Holders in accordance with the terms thereof, as soon as reasonably practicable.
(14) Exoneration. The
Depositary, the Company, their agents and each of them shall: (a) incur no liability (i) if any present or future law, rule,
regulation, fiat, order or decree of the United States, the Commonwealth of Australia or any other country, or of any governmental
or regulatory authority or any securities exchange or market or automated quotation system, the provisions of or governing any Deposited
Securities, any present or future provision of the Company's charter, any act of God, war, terrorism, nationalization or other circumstance
beyond its 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 this ADR provides shall be done or performed by it or them (including, without limitation, voting
pursuant to paragraph (12) hereof), or (ii) by reason of any exercise or failure to exercise any discretion given it in the Deposit
Agreement or this ADR (including, without limitation, any failure to determine that any distribution or action may be lawful or reasonably
practicable); (b) assume no liability except to perform its obligations to the extent they are specifically set forth in this ADR
and the Deposit Agreement without gross negligence or willful misconduct; (c) in the case of the Depositary and its agents, be under
no obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of any Deposited Securities or this ADR;
(d) in the case of the Company and its agents hereunder be under no obligation to appear in, prosecute or defend any action, suit
or other proceeding in respect of any Deposited Securities or this ADR, which in its opinion may involve it in expense or liability, unless
indemnity satisfactory to it against all expense (including fees and disbursements of counsel) and liability be furnished as often as
may be required; or (e) not be liable for any action or inaction by it in reliance upon the advice of or information from legal counsel,
accountants, any person presenting Shares for deposit, any Holder, or any other person believed by it to be competent to give such advice
or information. 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. 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. 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. Notwithstanding anything to the contrary contained
in the Deposit Agreement (including the ADRs), subject to the penultimate sentence of this paragraph (14), 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 Custodian has (i) 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, its agents and the Company may rely
and shall be protected in acting upon any written notice, request, direction, instruction or document believed by them to be genuine and
to have been signed, presented or given by the proper party or parties. The Depositary shall be under no obligation to inform Holders
or any other holders of an interest in any ADSs about the requirements of Australian law, rules or regulations or any changes therein
or thereto. The Depositary and its agents will not 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 the Company or its counsel in respect of any approval or license required for any currency conversion, transfer or distribution.
The Depositary and its agents may own and deal in any class of securities of the Company and its affiliates and in ADRs. Notwithstanding
anything to the contrary set forth in the Deposit Agreement or an ADR, 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 Holder or Holders, any
ADR or ADRs or otherwise related hereto or thereto 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. None
of the Depositary, the Custodian or the Company shall be liable for the failure by any Holder or beneficial owner 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. The Depositary and the
Company shall not incur any liability for any tax consequences that may be incurred by Holders and beneficial owners on account of their
ownership of the ADRs or ADSs. The Depositary shall not incur any liability for the content of any information submitted to it by or on
behalf of the Company for distribution to the 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 the Company. 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. By holding an ADS or an interest therein, Holders and owners of ADSs each irrevocably
agree that any legal suit, action or proceeding against or involving the Company or the Depositary, arising out of or based upon the Deposit
Agreement or the transactions contemplated hereby, may only be instituted in a state or federal court in New York, New York, and by holding
an ADS or an interest therein each irrevocably waives any objection which it may now or hereafter 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. The Company has
agreed to indemnify the Depositary and its agents under certain circumstances and the Depositary has agreed to indemnify the Company under
certain circumstances. Neither the Company nor the Depositary nor any of their respective agents shall be liable to Holders
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. No disclaimer of liability under the Securities Act of 1933 is intended by any provision hereof.
(15) Resignation and Removal of Depositary;
the Custodian. The Depositary may resign as Depositary by written notice of its election so to do delivered to the Company, such resignation
to take effect upon the appointment of a successor depositary and its acceptance of such appointment as provided in the Deposit Agreement.
The Depositary may at any time be removed by the Company by no less than 90 days prior written notice of such removal, to become
effective upon the later of (i) the 90th day after delivery of the notice to the Depositary and (ii) the appointment of a successor
depositary and its acceptance of such appointment as provided in the Deposit Agreement. The Depositary may appoint substitute or additional
Custodians and the term "Custodian" refers to each Custodian or all Custodians as the context requires.
(16) Amendment. Subject
to the last sentence of paragraph (2), the ADRs and the Deposit Agreement may be amended by the Company and the Depositary, provided
that 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 that shall otherwise
prejudice any substantial existing right of Holders, shall become effective 30 days after notice of such amendment shall have been given
to the Holders. Every Holder of an ADR at the time any amendment to the Deposit Agreement so becomes effective shall be deemed,
by continuing to hold such ADR, to consent and agree to such amendment and to be bound by the Deposit Agreement as amended thereby. In
no event shall any amendment impair the right of the Holder of any ADR to surrender such ADR and receive the Deposited Securities represented
thereby, except in order to comply with mandatory provisions of applicable law. Any amendments or supplements which (i) are reasonably
necessary (as agreed by the Company and the Depositary) in order for (a) the ADSs to be registered on Form F-6 under the Securities
Act of 1933 or (b) the ADSs or Shares to be traded solely in electronic book-entry form and (ii) do not in either such case
impose or increase any fees or charges to be borne by Holders, shall be deemed not to prejudice any substantial rights of Holders.
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, the Company 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. Such
amendment or supplement to the Deposit Agreement in such circumstances may become effective before a notice of such amendment or supplement
is given to Holders or within any other period of time as required for compliance. Notice of any amendment to the Deposit Agreement
or form of ADRs shall not need to describe in detail the specific amendments effectuated thereby, and failure to describe the specific
amendments in any such notice shall not render such notice invalid, provided, however, that, in each such case, the notice given to the
Holders identifies a means for Holders to retrieve or receive the text of such amendment (i.e., upon retrieval from the Commission's,
the Depositary's or the Company's website or upon request from the Depositary).
(17) Termination. The
Depositary may, and shall at the written direction of the Company, terminate the Deposit Agreement and this ADR by mailing notice of such
termination to the Holders 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 hereunder, notice of such termination by the Depositary shall not be provided to Holders unless
a successor depositary shall not be operating hereunder within 45 days of the date of such resignation, or (ii) been removed as Depositary
hereunder, notice of such termination by the Depositary shall not be provided to Holders unless a successor depositary shall not be operating
hereunder on the 90th day after the Company's notice of removal was first provided to the Depositary. After the date
so fixed for termination, the Depositary and its agents will perform no further acts under the Deposit Agreement and this ADR, except
to receive and hold (or sell) distributions on Deposited Securities and deliver Deposited Securities being withdrawn. As soon
as practicable after the expiration of six months from the date so fixed for termination, the Depositary shall sell the Deposited Securities
and shall thereafter (as long as it may lawfully do so) hold in a segregated account the net proceeds of such sales, together with any
other cash then held by it under the Deposit Agreement, without liability for interest, in trust for the pro rata benefit of the
Holders of ADRs not theretofore surrendered. After making such sale, the Depositary shall be discharged from all obligations
in respect of the Deposit Agreement and this ADR, except to account for such net proceeds and other cash. After the date so
fixed for termination, the Company shall be discharged from all obligations under the Deposit Agreement except for its obligations to
the Depositary and its agents.
(18) Appointment. Each
Holder 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 shall be deemed for all purposes to (a) be a party to and bound by the terms of the
Deposit Agreement and the applicable ADR(s), and (b) 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(s), to adopt any and all
procedures necessary to comply with applicable law 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(s), the taking of such actions to be the conclusive
determinant of the necessity and appropriateness thereof.
(19) Waiver. EACH PARTY TO THE
DEPOSIT AGREEMENT (INCLUDING, FOR AVOIDANCE OF DOUBT, EACH HOLDER AND BENEFICIAL OWNER AND/OR HOLDER OF INTERESTS IN ADRS AND/OR ADSs)
HEREBY 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 THE COMPANY DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE SHARES OR OTHER
DEPOSITED SECURITIES, THE ADSs OR THE ADRs, THE DEPOSIT AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREIN OR THEREIN, OR THE BREACH HEREOF
OR THEREOF (WHETHER BASED ON CONTRACT, TORT, COMMON LAW OR ANY OTHER THEORY).
(20) Elective Distributions in Cash or Shares. Whenever
the Company intends to distribute a dividend payable at the election of the holders of Shares in cash or in additional Shares, the Company
shall give notice thereof to the Depositary at least 30 days prior to the proposed distribution stating whether or not it wishes such
elective distribution to be made available to Holders. Upon receipt of notice indicating that the Company wishes such elective
distribution to be made available to Holders, the Depositary shall consult with the Company to determine, and the Company shall assist
the Depositary in its determination, whether it is lawful and reasonably practicable to make such elective distribution available to the
Holders. The Depositary shall make such elective distribution available to Holders only if (i) the Company shall have
timely requested that the elective distribution is available to 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
Section 14 of the Deposit Agreement. If the above conditions are not satisfied, the Depositary shall, to the extent permitted by
law, distribute to the Holders, on the basis of the same determination as is made in the local market in respect of the Shares for which
no election is made, either (x) cash or (y) additional ADSs representing such additional Shares. If the above conditions
are satisfied, the Depositary shall establish a record date and establish procedures to enable Holders to elect the receipt of the proposed
dividend in cash or in additional ADSs. The Company shall assist the Depositary in establishing such procedures to the extent
necessary. Nothing herein shall obligate the Depositary to make available to Holders a method to receive the elective dividend
in Shares (rather than ADSs). There can be no assurance that Holders generally, or any Holder in particular, will be given
the opportunity to receive elective distributions on the same terms and conditions as the holders of Shares.
Exhibit (e)
Rule 466 Certification
The depositary, JPMorgan Chase Bank, N.A., represents and certifies
the following:
| |
i. |
That it previously had filed a registration statement on Form F-6 (File No. 333-207378), which the U.S. Securities and Exchange Commission declared effective, with terms of deposit identical to the terms of deposit of this Post-Effective Amendment No. 3 to Form F-6 Registration Statement; and |
| |
ii. |
That its ability to designate the date and time of effectiveness under Rule 466 has not been suspended. |
| |
JPMORGAN CHASE BANK, N.A. |
| |
|
| |
By: |
/s/ Lisa M. Hayes |
| |
|
Name: |
Lisa M. Hayes |
| |
|
Title: |
Vice President |
Mesoblast (NASDAQ:MESO)
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