As filed with the Securities and Exchange Commission
on January 14, 2019
Registration No. 333-215204
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM F-1
ON
FORM F-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
IMMURON LIMITED
(Exact Name of Registrant as Specified in its Charter)
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Australia
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Not Applicable
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(State or Other Jurisdiction
of Incorporation or
Organization)
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(I.R.S. Employer
Identification No.)
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Level 3, 62 Lygon Street
Carlton South, Victoria, 3053, Australia
Tel: +61 (0) 398 245 254
(Address and telephone number of Registrant’s
principal executive offices)
Puglisi & Associates
850 Library Avenue
Suite 204, Newark, DE 19711
Tel: (302) 738-6680
Fax: (302) 738-7210
(Name, address and telephone number of agent for
service)
Copies of all Correspondence to:
Steven J. Glusband, Esq.
Carter Ledyard & Milburn LLP
2 Wall Street
New York, NY 10005
Tel: 212-238-8605
Fax: 212-732-3232
Approximate date of commencement of proposed sale
to the public
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From time to time after the effective date of this registration statement.
If the only securities being registered on this
form are being offered pursuant to dividend or interest reinvestment plans, please check the following box: ☐
If any of the securities being registered on this
form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, please check the
following box: ☒
If this form is filed to register additional securities
for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same offering. ☐
If this form is a post-effective amendment filed
pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number
of the earlier effective registration statement for the same offering. ☐
If this form is a post-effective amendment filed
pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number
of the earlier effective registration statement for the same offering. ☐
The Registrant hereby amends this registration
statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment
which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, as amended, or until the registration statement shall become effective on such date as the Commission,
acting pursuant to such Section 8(a), may determine.
EXPLANATORY NOTE
On December 21, 2016, we filed with the Securities
and Exchange Commission, or the SEC, a registration statement on Form F-1 (File No. 333-215204) (the “Registration Statement”
or the “Form F-1”), which was amended by pre-effective amendments filed on February 9, 2017, April 10, 2017, April
28, 2017, May 8, 2017, May 22, 2017, May 24, 2017, May 25, 2017 and May 26, 2017. The Registration Statement was declared effective
by the SEC on June 8, 2017. We also filed a registration statement on Form F-1 MEF with the SEC on June 8, 2017 (the Registration
Statement together with the Form F-1 MEF are also referred to as the “Registration Statement” and Form F-1”).
The Registration Statement related to our initial public offering whereby we offered and sold (i) 610,000 ADSs and (ii) 701,500
Warrants to purchase ADSs, all of the foregoing having been registered pursuant to the Registration Statement.
Among the purposes of this Post-Effective Amendment
on Form F-3, or, the “F-3 Post-Effective Amendment,” is to allow us to update the F-1 by including certain recent information
about our company as well as automatically incorporating by reference future filings made pursuant to the Securities Exchange Act
of 1934, as amended. This Post-Effective Amendment is also being filed to (i) convert the F-1 into a registration statement on
Form F-3, and (ii) to register only the exercise of the Warrants already issued and outstanding, consisting of an aggregate of
701,500 ADSs issuable upon exercise of the Warrants. No further offering will be made pursuant to this F-3 Post-Effective Amendment.
All filing fees payable in connection with the
registration of these securities were previously paid. This F-3 Post-Effective Amendment does not register any additional securities.
This F-3 Post-Effective Amendment is being filed in compliance with Section 10(a)(3) of the Securities Act of 1933, as amended.
The information contained in this prospectus
is not complete and may be changed. These securities may not be sold until the registration statement filed with the Securities
and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer
to buy these securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED JANUARY 14, 2019
PROSPECTUS
701,500 WARRANTS TO PURCHASE ORDINARY SHARES
We are offering 701,500 American
Depositary Shares (each, an “ADS” and, collectively the “ADSs”), each representing forty (40) of our ordinary
shares, or the “Ordinary Shares,” issuable upon the exercise of currently outstanding warrants, or the “Warrants,”
that we issued in connection with our initial public offering of our ADSs and Warrants. The Warrants have an initial per ADS exercise
price of $10.00, subject to adjustment. The Warrants will expire on June 13, 2022, five years from their date of issuance. No securities
are being offered pursuant to this prospectus other than the ADSs that will be issued upon exercise of those currently outstanding
Warrants. We will not receive any proceeds from the sale of those ADSs. To the extent any of the Warrants are exercised for cash,
if at all, we will receive the exercise price for those Warrants.
Our ADSs trade on
the NASDAQ Capital Market under the symbol “IMRN.” On January 11, 2019, the closing price of our ADSs on the NASDAQ
Capital Market was US$7.75 per ADS. The closing price of the Warrants on the NASDAQ Capital Market was US$1.61 on January 11,
2019. The ADSs and Warrants are sometimes referred to as the “securities.” Our Ordinary Shares are listed on the Australian
Stock Exchange under the symbol “IMC”. On January 11, 2019, the last reported sale price of the Ordinary Shares on
the Australian Stock Exchange was USD$0.195, based on a foreign exchange rate of AUD 1.00 to US$0.7220 as published by the Reserve
Bank of Australia on January 11, 2019.
We are an “emerging growth
company” as defined by the Jumpstart Our Business Startups Act of 2012 and as such, we have elected to comply with certain
reduced public company reporting requirements for this prospectus and future filings.
Investing in Securities
involves a high degree of risk. See “Risk Factors” beginning on page 5 of this prospectus for certain factors you should
consider before investing in the ADSs.
Neither the Securities
and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is January 14, 2019
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
We
have not authorized anyone to provide any information or to make any representations other than those contained in this prospectus
or in any free writing prospectus prepared by or on behalf of us or to which we have referred you. We take no responsibility for,
and can provide no assurance as to the reliability of, any other information that others may give you. This prospectus is an offer
to sell only the ADSs offered hereby, and only under the circumstances and in the jurisdictions where it is lawful to do so. The
information contained in this prospectus or in any applicable free writing prospectus is current only as of its date, regardless
of its time of delivery or any sale of the securities. Our business, financial condition, results of operations and prospects may
have changed since that date.
For
investors outside the United States: We have not done anything that would permit this offering or possession or distribution of
this prospectus in any jurisdiction where action for that purpose is required, other than in the case of the U.S. Persons outside
the U.S. who come into possession of this prospectus, who must inform themselves of, and observe any restrictions relating to,
the offering of the securities and the distribution of this prospectus outside the United States.
Unless we have indicated otherwise
or the context otherwise requires, references in this prospectus and any supplement to this prospectus to “the Company,”
“Immuron,” “we,” “us” and “our” refer to Immuron Limited, a company organized under
the laws of Australia, and its wholly owned subsidiaries. In this prospectus, all references to “U.S. dollars” or “US$”
are to the currency of the United States, and all references to “Australian dollars,” “A$” or “AUD$”
are to the currency of Australia.
Our consolidated financial statements incorporated
by reference into this prospectus are prepared in Australian dollars and in accordance with the International Financial Reporting
Standards, or IFRS, as issued by the International Accounting Standards Board, or IASB. Our consolidated financial statements incorporated
into this prospectus comply with IFRS.
SPECIAL NOTE ON FORWARD-LOOKING STATEMENTS
This prospectus, including
the information incorporated by reference into this prospectus, contains, and any prospectus supplement may contain, forward-looking
statements within the meaning of the federal securities laws. The use of the words “projects,” “expects,”
“may,” “plans” or “intends,” or words of similar import, identifies a statement as “forward-looking.”
The forward-looking statements included herein are based on current expectations that involve a number of risks and uncertainties.
These forward-looking statements are based on the assumption that the Company will not lose a significant customer or customers
or experience increased fluctuations of demand or rescheduling of purchase orders, that our markets will be maintained in a manner
consistent with our historical experience, that our products will remain accepted within their respective markets and will not
be replaced by new technology, that competitive conditions within our markets will not change materially or adversely, that we
will retain key technical and management personnel, that our forecasts will accurately anticipate market demand, and that there
will be no material adverse change in our operations or business. Assumptions relating to the foregoing involve judgments with
respect to, among other things, future economic, competitive and market conditions, and future business decisions, all of which
are difficult or impossible to predict accurately and many of which are beyond our control. In addition, our business and operations
are subject to substantial risks which increase the uncertainty inherent in the forward-looking statements. In light of the significant
uncertainties inherent in the forward-looking information included herein, the inclusion of such information should not be regarded
as a representation by us or any other person that our objectives or plans will be achieved. Factors that could cause actual results
to differ from our expectations or projections include the risks and uncertainties relating to our business as set forth under
the heading “Risk Factors” in our most recent Annual Report on Form 20-F filed with the SEC
and the risks relating
to our securities
described in this prospectus at “Risk Factors.” We caution you to carefully consider these risks
and not to place undue reliance on our forward-looking statements. Except as required by applicable law, including the securities
laws of the United States, we do not intend to update or revise any forward-looking statements, whether as a result of new information,
future events or otherwise, and we assume no responsibility for updating any forward-looking statements.
PROSPECTUS SUMMARY
You should read
the following summary together with the more detailed information about us, the ordinary shares that may be sold from time to time,
and our financial statements and the notes to them, all of which appear elsewhere in this prospectus or in the documents incorporated
by reference in this prospectus.
We are a
clinical-stage biopharmaceutical company with a proprietary technology platform focused on the development and
commercialization of a novel class of immunomodulator polyclonal antibodies that we believe can address significant unmet
medical needs. Our oral polyclonal antibodies offer targeted delivery within the gastrointestinal (GI) track but do not cross
into the bloodstream, potentially leading to much improved safety and tolerability, without sacrificing efficacy. We believe
that our innovative immunotherapeutic products have the potential to transform the existing treatment paradigms for gut
mediated diseases.
We currently market an OTC
product, Travelan, in Australia for prevention of Traveler's Diarrhea. We also market Travelan in the U.S. and Canada as a dietary
supplement for digestive tract protection. Travelan is based on the same platform as our immudolator product candidates and targets
13 strains of E-coli. Global sales for fiscal year 2018 were gross A$2 million (net: A$1.8 million). We recently began to market
Protectyn, a health product targeting pathogenic bacteria and the toxins they produce in the gut to prevent gut dysbiosis, in
Australia. Sales of Protectyn have not been material to date.
Our American Depositary Shares
(each, an “ADS” and, collectively the “ADSs”) and warrants (each, a “Warrant”) are listed
on the NASDAQ Capital Market under the symbols “IMRN” and “IMRNW,” respectively. Each ADS represents forty
(40) of our ordinary shares. Each Warrant has a per ADS exercise price of US$10.00 and expires five years from the date of issuance.
Our ordinary shares are also listed on the Australian Securities Exchange under the symbol “IMC.”
THE OFFERING
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ADSs being offered pursuant to exercise of Warrants
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701,500 ADSs issuable upon exercise of Warrants (1)
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ADSs to be outstanding if all of the Warrants are exercised
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701,500 ADSs representing 28,060,000 ordinary shares (2)
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Ordinary
shares to be outstanding if the Warrants are exercised in full
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171,275,706 shares
(3)
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NASDAQ Capital Market symbol
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“IMRN”
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Use of proceeds
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We will receive the exercise price of ADSs we issue to the holders of the Warrants upon their exercise, to the extent any of the Warrants are exercised, if at all. Such proceeds, if any, will be used for general corporate purposes.
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Risk factors
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Prospective investors should carefully consider the Risk Factors beginning on Page 5 and under similar headings in the other documents that are incorporated by reference into this prospectus for a discussion of certain factors that should be considered before buying the ordinary shares offered hereby.
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(1)
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As of January, 11, 2019.
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(2)
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Includes 333,381 ADSs that are currently issued and outstanding.
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(3)
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Excludes 46,059,286 ordinary shares underlying outstanding exercisable option and 4,763,000 ordinary
shares underlying underwriters’ warrants issued in connection with our IPO
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Corporate Information
We
were incorporated under the laws of the Commonwealth of Australia in 1994 and have been listed on the Australian Securities Exchange
(ASX) since April 30, 1999. Our principal executive office is located at Level 3, 62 Lygon Street, Carlton South, Victoria, Australia
3053 and our telephone number is +61 (0)3 9824 5254. Our website address is www.Immuron.com.au. The information on our website
is not incorporated by reference into this prospectus.
RISK FACTORS
Investing
in our ADSs pursuant to this prospectus may involve a high degree of risk. You should
carefully consider the important factors set forth under the heading “Risk Factors” in our most recent Annual Report
on Form 20-F filed with the SEC and incorporated herein by reference and the following risks relating to our securities described
below before investing in our ADSs issuable upon exercise of the Warrants. For further details, see the section entitled “Where You Can Find Additional Information”.
Any of the risk factors referred to above could
significantly and negatively affect our business, results of operations or financial condition, which may lower the trading price
of our ADSs. The risks referred to above are not the only ones that may exist. Additional risks not currently known by us or risks
that we deem immaterial may also impair our business operations. You may lose all or a part of your investment.
Risks Related to the Purchase of
Our Securities
The market price and trading
volume of our ADSs may be volatile and may be affected by economic conditions beyond our control.
The market price
of our ADSs may be highly volatile and subject to wide fluctuations. In addition, the trading volume of the ADSs may fluctuate and
cause significant price variations to occur. If the market price of the ADSs declines significantly, you may be unable to resell
your ADSs at or above the purchase price, if at all. We cannot assure you that the market price of the ADSs will not fluctuate or
significantly decline in the future.
Some specific factors
that could negatively affect the price of the ADSs or result in fluctuations in their price and trading volume include:
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actual or expected fluctuations in our operating results;
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changes in market valuations of similar companies;
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changes in our key personnel;
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changes in financial estimates or recommendations by securities analysts;
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trading prices of our ordinary shares on the ASX;
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changes in trading volume of ADSs on NASDAQ Capital Market, or NASDAQ, and of our ordinary shares
on the ASX;
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sales of the ADSs or ordinary shares by us, our executive officers or our shareholders in the
future; and
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conditions in the financial markets or changes in general economic conditions.
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The dual listing of our ordinary shares and
the ADSs may adversely affect the liquidity and value of the ADSs.
Our ordinary shares
are listed on the ASX. We cannot predict the effect of this dual listing on the value of our ordinary shares and ADSs. However,
the dual listing of our ordinary shares and ADSs may dilute the liquidity of these securities in one or both markets and may impair
the development of an active trading market for the ADSs in the U.S. The trading price of the ADSs could also be adversely affected
by trading in our ordinary shares on the ASX.
As a foreign private issuer, we
are permitted, and we expect to follow certain home country corporate governance practices in lieu of certain NASDAQ requirements
applicable to domestic issuers. This may afford less protection to holders of our ADSs.
As a foreign private
issuer whose shares are listed on the NASDAQ Capital Market, we are permitted to follow certain home country corporate governance
practices instead of certain requirements of the NASDAQ Stock Market Rules. Among other things, as a foreign private issuer we
have elected to follow home country practice with regard to the composition of the board of directors and the audit committee,
the financial expert, director nomination procedure, compensation of officers and quorum at shareholders’ meetings. In addition,
we may follow our home country law, instead of the NASDAQ Stock Market Rules, which require that we obtain shareholder approval
for certain dilutive events, such as for the establishment or amendment of certain equity based compensation plans, an issuance
that will result in a change of control of the company, certain transactions other than a public offering involving issuances of
a 20% or more interest in the company and certain acquisitions of the stock or assets of another company. Accordingly, our shareholders
may not be afforded the same protection as provided under NASDAQ’s corporate governance rules.
As a foreign private issuer, we
are permitted to file less information with the SEC than a company incorporated in the U.S. Accordingly, there may be less publicly
available information concerning us than there is for companies incorporated in the U.S.
As a foreign private
issuer, we are exempt from certain rules under the Exchange Act that impose disclosure requirements as well as procedural requirements
for proxy solicitations under Section 14 of the Exchange Act. In addition, our officers, directors and principal shareholders are
exempt from the reporting and “short-swing” profit recovery provisions of Section 16 of the Exchange Act. Moreover,
we are not required to file periodic reports and financial statements with the SEC as frequently or as promptly as a company that
files as a U.S. company whose securities are registered under the Exchange Act, nor are we required to comply with the SEC’s
Regulation FD, which restricts the selective disclosure of material non-public information. Accordingly, there may be less information
publicly available concerning us than there is for a company that files as a domestic issuer.
We are an emerging growth company
as defined in the JOBS Act and the reduced disclosure requirements applicable to emerging growth companies may make the ADSs less
attractive to investors and, as a result, adversely affect the price of the ADSs and result in a less active trading market for
the ADSs.
We are an emerging
growth company as defined in the JOBS Act, and we may take advantage of certain exemptions from various reporting requirements
that are applicable to other public companies that are not emerging growth companies. For example, we have elected to rely on an
exemption from the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act relating to internal control over
financial reporting, and we will not provide such an attestation from our auditors for so long as we qualify as an emerging growth
company.
We may avail ourselves
of these disclosure exemptions until we are no longer an emerging growth company. We cannot predict whether investors will find
the ADSs less attractive because of our reliance on some or all of these exemptions. If investors find the ADSs less attractive,
it may cause the trading price of the ADSs to decline and there may be a less active trading market for the ADSs.
We will cease to be an emerging growth
company upon the earliest of:
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the end of the fiscal year in which the fifth anniversary of completion
of our IPO occurs;
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the end of the first fiscal year in which the market value of our
ordinary shares held by non-affiliates exceeds US$700 million as of the end of the second quarter of such fiscal year;
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the end of the first fiscal year in which we have total annual gross
revenues of at least US$1.07 billion; and
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the date on which we have issued more than US$1 billion in non-convertible
debt securities in any rolling three-year period.
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Management has identified certain
matters involving our internal controls over our financial reporting that are material weaknesses under applicable standards.
Our management is responsible
for establishing and maintaining adequate internal control over financial reporting (as defined in Rule 13a015(f) of the Exchange
Act). We previously reported material weaknesses in our internal control over financial reporting surrounding our monitoring controls
when assessing certain significant transactions and properly performing certain reviews and monitoring controls in the preparation
of the financial statements in accordance with IFRS, as issued by IASB. Management has determined that, as at June 30, 2018, these material weaknesses in the Company’s
internal control over financial reporting related to the financial closing and reporting processes have not been remediated.
Management assessed the effectiveness
of our internal control over financial reporting as of June 30, 2018, utilizing the criteria described in Internal Control-Integrated
Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). Based on this evaluation
and the criteria issued by COSO, our management, with the participation of our Chief Executive Officer and Chief Financial Officer,
concluded that, as of June 30, 2018, our internal control over financial reporting was not effective because of the material weaknesses
described above.
Plan for Remediation of Material Weakness
Our Management is currently
addressing the material weaknesses in internal control over financial reporting and is committed to remediating it as expeditiously
as possible. Management intends to devote significant time and resources to the remediation effort. Management plans to take the
following steps to improve our internal control over financial reporting and to remediate the identified material weakness:
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Evaluate the staffing level and qualifications of finance department
personnel, and make changes as deemed appropriate;
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Evaluate the need to deploy additional software systems to assist
in automating and controlling certain processes within the finance function;
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Enhance our processes and procedures through expanded use of checklists
for key tasks to improve effectiveness and efficiency: and
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Evaluate the utilization of external resources, to provide greater
assurance that these resources are effectively managed, and deployed, and make changes as appropriate.
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Any future failure
to maintain such internal controls could adversely impact our ability to report our financial results on a timely and accurate
basis, which could result in our inability to satisfy our reporting obligations or result in material misstatements in our financial
statements. If our financial statements are not accurate, investors may not have a complete understanding of our operations or
may lose confidence in our reported financial information, which could result in a material adverse effect on our business or have
a negative effect on the trading price of our ordinary shares and ADSs.
ADS holders may be subject to additional
risks related to holding ADSs rather than ordinary shares.
ADS holders do not hold ordinary shares
directly and, as such, are subject to, among others, the following additional risks:
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As an ADS holder, we will not treat you as one of our shareholders
and you will not be able to exercise shareholder rights, except through the ADR depositary as permitted by the deposit agreement.
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D
istributions
on the ordinary shares represented by your ADSs will be paid to the ADR depositary, and before the ADR depositary makes a distribution
to you on behalf of your ADSs, any withholding taxes that must be paid will be deducted. Additionally, if the exchange rate fluctuates
during a time when the ADR depositary cannot convert the foreign currency, you may lose some or all of the value of the distribution.
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We and the ADR depositary may amend or terminate the deposit agreement
without the ADS holders’ consent in a manner that could prejudice ADS holders.
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You must act through the ADR depositary
to exercise your voting rights and, as a result, you may be unable to exercise your voting rights on a timely basis.
As a holder of
ADSs (and not the ordinary shares underlying your ADSs), we will not treat you as one of our shareholders, and you will not be able
to exercise shareholder rights. The ADR depositary will be the holder of the ordinary shares underlying your ADSs, and ADS holders
will be able to exercise voting rights with respect to the ordinary shares represented by the ADS only in accordance with the deposit
agreement relating to the ADSs. There are practical limitations on the ability of ADS holders to exercise their voting rights due
to the additional procedural steps involved in communicating with these holders. For example, holders of our ordinary shares will
receive notice of shareholders’ meetings by mail and will be able to exercise their voting rights by either attending the
shareholders meeting in person or voting by proxy. ADS holders, by comparison, will not receive notice directly from us. Instead,
in accordance with the deposit agreement, we will provide notice to the ADR depositary of any such shareholders meeting and details
concerning the matters to be voted upon at least 30 days in advance of the meeting date. If we so instruct, the ADR depositary
will mail to holders of ADSs the notice of the meeting and a statement as to the manner in which voting instructions may be given
by holders as soon as practicable after receiving notice from us of any such meeting. To exercise their voting rights, ADS holders
must then instruct the ADR depositary as to voting the ordinary shares represented by their ADSs. Due to these procedural steps
involving the ADR depositary, the process for exercising voting rights may take longer for ADS holders than for holders of ordinary
shares. The ordinary shares represented by ADSs for which the ADR depositary fails to receive timely voting instructions will not
be voted.
If we are classified as a “passive
foreign investment company,” then our U.S. shareholders could suffer adverse tax consequences as a result.
Generally, if,
for any taxable year, at least 75% of our gross income is passive income (including our pro rata share of the gross income of our
25% or more owned corporate subsidiaries) or at least 50% of the average quarterly value of our gross assets (including our pro
rata share of the gross assets of our 25% or more owned corporate subsidiaries) is attributable to assets that produce passive
income or are held for the production of passive income, including cash, we would be characterized as a passive foreign investment
company, or PFIC, for U.S. federal income tax purposes. For purposes of these tests, passive income includes dividends, interest,
and gains from the sale or exchange of investment property and rents and royalties other than rents and royalties which are received
from unrelated parties in connection with the active conduct of a trade or business. If we are characterized as a PFIC, a U.S.
holder of our ordinary shares or ADSs may suffer adverse tax consequences, including having gains recognized on the sale of our
ordinary shares or ADSs treated as ordinary income, rather than capital gain, the loss of the preferential rate applicable to dividends
received on our ordinary shares or ADSs by individuals who are U.S. holders, and having interest charges added to their tax on
distributions from us and on gains from the sale of our ordinary shares or ADSs. See “Taxation.”
U.S. Federal Income Tax Considerations—
Passive
Foreign Investment Company
Our
status as a PFIC may also depend, in part, on how quickly we utilize the cash proceeds from our IPO, in our business. Since PFIC
status depends on the composition of our income and the composition and value of our assets, which may be determined in large
part by reference to the market value of our ordinary shares or ADSs, which may be volatile, there can be no assurance that we
will not be a PFIC for any taxable year. While we expect that we were not a PFIC for our taxable year ended June 30, 2018, no
assurance of our PFIC status can be provided for such taxable year or future taxable years. Prospective U.S. investors should
discuss the issue of our possible status as a PFIC with their tax advisors.
Currency fluctuations may adversely
affect the price of our ordinary shares and ADSs
Our ordinary shares
are quoted in Australian dollars on the ASX and the ADSs are quoted in U.S. dollars on NASDAQ. Movements in the Australian dollar/U.S.
dollar exchange rate may adversely affect the U.S. dollar price of the ADSs. In the past year the Australian dollar has generally
weakened against the U.S. dollar. However, this trend may not continue and may be reversed. If the Australian dollar weakens against
the U.S. dollar, the U.S. dollar price of the ADSs could decline, even if the price of our ordinary shares in Australian dollars
increases or remains unchanged.
We have never declared or paid
dividends on our ordinary shares and we do not anticipate paying dividends in the foreseeable future.
We have never declared
or paid cash dividends on our ordinary shares. For the foreseeable future, we currently intend to retain all available funds and
any future earnings to support our operations and to finance the growth and development of our business. Any future determination
to declare cash dividends will be made at the discretion of our board of directors, subject to compliance with applicable laws
and covenants under current or future credit facilities, which may restrict or limit our ability to pay dividends, and will depend
on our financial condition, operating results, capital requirements, general business conditions and other factors that our board
of directors may deem relevant. We do not anticipate paying any cash dividends on our ordinary shares in the foreseeable future.
As a result, a return on your investment will only occur if our ADS price appreciates.
You may not receive distributions
on our ordinary shares represented by the ADSs or any value for such distribution if it is illegal or impractical to make them available
to holders of ADSs.
While we do not
anticipate paying any dividends on our ordinary shares in the foreseeable future, if such a dividend is declared, the depositary
for the ADSs has agreed to pay to you the cash dividends or other distributions it or the custodian receives on our ordinary shares
or other deposited securities after deducting its fees and expenses. You will receive these distributions in proportion to the
number of our ordinary shares your ADSs represent. However, in accordance with the limitations set forth in the deposit agreement,
it may be unlawful or impractical to make a distribution available to holders of ADSs. We have no obligation to take any other action
to permit the distribution of the ADSs, ordinary shares, rights or anything else to holders of the ADSs. This means that you may
not receive the distributions we make on our ordinary shares or any value from them if it is unlawful or impractical to make them
available to you. These restrictions may have a material adverse effect on the value of your ADSs.
Australian takeover laws may discourage
takeover offers being made for us or may discourage the acquisition of a significant position in our ordinary shares or ADSs.
We are incorporated
in Australia and are subject to the takeover laws of Australia. Among other things, we are subject to the Australian Corporations
Act 2001, or the Corporations Act. Subject to a range of exceptions, the Corporations Act prohibits the acquisition of a direct
or indirect interest in our issued voting shares if the acquisition of that interest will lead to a person’s voting power
in us increasing to more than 20%, or increasing from a starting point that is above 20% and below 90%. Australian takeover laws
may discourage takeover offers being made for us or may discourage the acquisition of a significant position in our ordinary shares.
This may have the ancillary effect of entrenching our board of directors and may deprive or limit our shareholders’ or ADS
holders’ opportunity to sell their ordinary shares or ADSs and may further restrict the ability of our shareholders and ADS
holders to obtain a premium from such transactions.
Our Constitution and Australian
laws and regulations applicable to us may adversely affect our ability to take actions that could be beneficial to our shareholders.
As an Australian
company, we are subject to different corporate requirements than a corporation organized under the laws of the states of the U.S.
Our Constitution, as well as the Australian Corporations Act, set forth various rights and obligations that are unique to us as
an Australian company. These requirements may operate differently than those of many U.S. companies.
You will have limited ability to
bring an action against us or against our directors and officers, or to enforce a judgment against us or them, because we are incorporated
in Australia and certain of our directors and officers reside outside the U.S.
We are incorporated
in Australia, the majority of our directors and officers at present reside outside the U.S. and substantially all of the assets
owned by those persons are located outside of the U.S. also. As a result, it may be impracticable or at least more expensive for
you to bring an action against us or against these individuals in Australia in the event that you believe that your rights have
been infringed under the applicable securities laws or otherwise.
You may be subject to limitations
on transfer of the ADSs.
The ADSs are only
transferable on the books of the depositary. However, the depositary may close its transfer books at any time or from time to time
when it deems expedient in connection with the performance of its duties. In addition, the depositary may refuse to deliver, transfer
or register transfers of ADSs generally when our books or the books of the depositary are closed, or at any time if we or the depositary
deem it advisable to do so because of any requirement of law or of any government or governmental body, or under any provision
of the Deposit Agreement, or for any other reason.
Australian companies may not be
able to initiate shareholder derivative actions, thereby depriving shareholders of the ability to protect their interests.
Australian companies
may not have standing to initiate a shareholder derivative action in a federal court of the U.S. The circumstances in which any
such action may be brought, and the procedures and defenses that may be available in respect to any such action, may result in
the rights of shareholders of an Australian company being more limited than those of shareholders of a company organized in the
U.S. Accordingly, shareholders may have fewer alternatives available to them if they believe that corporate wrongdoing has occurred.
Australian courts are also unlikely to recognize or enforce against us judgments of courts in the U.S. based on certain liability
provisions of U.S. securities law and to impose liabilities against us, in original actions brought in Australia, based on certain
liability provisions of U.S. securities laws that are penal in nature. There is no statutory recognition in Australia of judgments
obtained in the U.S., although the courts of Australia may recognize and enforce the non-penal judgment of a foreign court of competent
jurisdiction without retrial on the merits, upon being satisfied about all the relevant circumstances in which that judgment was
obtained.
Anti-takeover provisions in our
Constitution and our right to issue preference shares could make a third-party acquisition of us difficult.
Some provisions
of our Constitution may discourage, delay or prevent a change in control of our company or management that shareholders may consider
favorable, including provisions that only require one-third of our board of directors to be elected annually and authorize our
board of directors to issue an unlimited number of shares of capital stock and preference shares in one or more series and to designate
the price, rights, preferences, privileges and restrictions of such preference shares by amending the Constitution.
USE OF PROCEEDS
All
of the proceeds from the sale of any ordinary shares offered under this prospectus are for the account of the Selling Shareholders.
Accordingly, we will not receive any proceeds from the sales of these securities.
DIVIDEND POLICY
We have never declared or
paid any cash dividend on our ordinary shares. We currently intend to retain any future earnings and do not expect to pay any
dividends in the foreseeable future. Any further determination to pay dividends on our ordinary shares will be at the discretion
of our board of directors, subject to applicable laws, and will depend on our financial condition, results of operations, capital
requirements, general business conditions, and other factors that our board of directors considers relevant.
DESCRIPTION OF ORDINARY SHARES
General
The following description
of our ordinary shares is only a summary. We encourage you to read our Constitution, which is included as an exhibit to this registration
statement, of which this prospectus forms a part.
We 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 and the ASX Listing Rules. Our ordinary shares trade
on the ASX, and our ADSs and Warrants trade on NASDAQ.
The Australian law applicable
to our Constitution is not significantly different than a U.S. company’s charter documents except we do not have 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.”
Subject 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 shares and grant options or warrants on any terms, with the rights and restrictions and for the consideration
that our board of directors determine.
The 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 are summarized below. Each ordinary shareholder is entitled to receive notice of, and to be present, vote
and speak at, general meetings.
Our Constitution
Our 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 Immuron.
Our Constitution is subject to the terms of the ASX Listing Rules and the Corporations Act. It may be amended or repealed and replaced
by special resolution of shareholders, which is a resolution passed by at least 75% of the votes cast by shareholders entitled
to vote on the resolution.
Under 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. Our Constitution is filed as an exhibit to the registration statement, of which this prospectus forms a
part.
Interested Directors
A director may not vote in
respect of any contract or arrangement in which the director has, directly or indirectly, any material 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. However, that director may execute or otherwise act in respect of that contract or arrangement
notwithstanding any material personal interest.
Unless a relevant exception
applies, the Corporations Act requires our directors to provide disclosure of certain interests or conflicts of interests and prohibits
directors 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, the Corporations Act and the ASX Listing Rules require shareholder approval of any provision
of related party benefits to our directors.
Borrowing Powers Exercisable by
Directors
Pursuant to our Constitution,
the management and control of our business affairs are vested in 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 any uncalled capital, and may issue debentures or give any
other security for any of our debts, liabilities or obligations or of any other person, in each case, in the manner and on terms
it deems fit.
Retirement of Directors
Pursuant to our Constitution
and the ASX Listing Rules, there must be an election of Directors at each annual general meeting. The directors, other than the
managing director, who are to stand for election at each annual general meeting are: (i) any Director required to retire after
a period of 3 years in office, (ii) any Director appointed by the other Directors in the year preceding the annual general meeting,
(iii) any new directors, or (iv) if no person is standing for election for the aforementioned reasons then the director longest
in office since last being elected. A director, other than the director who is the Chief Executive Officer, must retire from office
at the conclusion of the third annual general meeting after which the director was elected. Retired directors are eligible for
a re-election to the board of directors unless disqualified from acting as a director under the Corporations Act or our Constitution.
Rights and Restrictions on Classes
of Shares
The rights attaching to our
ordinary shares are detailed in our Constitution. Our Constitution provides that our directors may issue shares with preferred,
deferred or other special rights, whether in relation to dividends, voting, return of share capital, or otherwise as our board
of directors may determine. Subject to any approval which is required from our shareholders under the Corporations Act and the
ASX Listing Rules (see “—Exemptions from Certain NASDAQ Corporate Governance Rules” and “—Change
of Control”), any rights and restrictions attached to a class of shares, we may issue further shares on such terms and conditions
as our board of directors resolve. Currently, our outstanding share capital consists of only one class of ordinary shares.
Dividend Rights
Our board of directors may
from time to time determine to pay dividends to shareholders. All dividends unclaimed for one year after having been declared may
be invested or otherwise made use of by our board of directors for our benefit until claimed or otherwise disposed of in accordance
with our Constitution.
Voting Rights
Under our Constitution, and
subject to any voting exclusions imposed under the ASX Listing Rules (which typically exclude parties from voting on resolutions
in which they have an interest), the rights and restrictions attaching to a class of shares, each shareholder has one vote on a
show of hands at a meeting of the shareholders unless a poll is demanded under the Constitution or the Corporations Act. On a poll
vote, each shareholder shall have one vote for each fully paid share and a fractional vote for each share held by that shareholder
that is not fully paid, such fraction being equivalent to the proportion of the amount that has been paid to such date on that
share. Shareholders may vote in person or by proxy, attorney or representative. Under Australian law, shareholders of a public
company are not permitted to approve corporate matters by written consent. Our Constitution does not provide for cumulative voting.
Note 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.
Right to Share in Our Profits
Pursuant to our Constitution,
our shareholders are entitled to participate in our profits only by payment of dividends. Our board of directors may from time
to time determine to pay dividends to the shareholders; however, no dividend is payable except in accordance with the thresholds
set out in the Corporations Act.
Rights to Share in the Surplus
in the Event of Liquidation
Our Constitution provides
for the right of shareholders to participate in a surplus in the event of our liquidation, subject to the rights attaching to a
class of shares.
No Redemption Provision for Ordinary
Shares
There are no redemption provisions
in our Constitution in relation to ordinary shares. Under our Constitution, any preference shares may be issued on the terms that
they are, or may at our option be, liable to be redeemed.
Variation or Cancellation of Share Rights
Subject to the terms of issue
of shares of that class, the rights attached to shares in a class of shares may only be varied or cancelled by a special resolution
of Immuron together with either:
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a special resolution passed at a separate general meeting of members holding shares in the class; or
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the written consent of members with at least 75% of the shares in the class.
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Directors May Make Calls
Our Constitution provides
that subject to the terms on which the shares have been issued directors may make calls on a shareholder for amounts unpaid on
shares held by that shareholder, other than monies payable at fixed times under the conditions of allotment. Shares represented
by the ADSs issued in this offering will be fully paid and will not be subject to calls by directors.
General Meetings of Shareholders
General meetings of shareholders
may be called by our board of directors. Except as permitted under the Corporations Act, shareholders may not convene a 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 or at least 100 shareholders who are entitled to vote at the general
meeting. Notice of the proposed meeting of our shareholders is required at least 28 clear days prior to such meeting under
the Corporations Act.
Foreign Ownership Regulation
There are no limitations on
the rights to own securities imposed by our Constitution. However, acquisitions and proposed acquisitions of securities in Australian
companies may be subject to review and approval by the Australian Federal Treasurer under the Foreign Acquisitions and Takeovers
Act 1975, or the FATA, which generally applies to acquisitions or proposed acquisitions:
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by a foreign person (as defined in the FATA) or associated foreign persons that would result in such persons having an interest in 20% or more of the issued shares of, or control of 20% or more of the voting power in, an Australian company; and
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by non-associated foreign persons that would result in such foreign person having an interest in 40% or more of the issued shares of, or control of 40% or more of the voting power in, an Australian company, where the Australian company is valued above the monetary threshold prescribed by FATA.
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However, no such review or
approval under the FATA is required if the foreign acquirer is a U.S. entity and the value of the target is less than AUD$1,094
million.
The Australian Federal Treasurer
may prevent a proposed acquisition in the above categories or impose conditions on such acquisition if the Treasurer is satisfied
that the acquisition would be contrary to the national interest. If a foreign person acquires shares or an interest in shares in
an Australian company in contravention of the FATA, the Australian Federal Treasurer may order the divestiture of such person’s
shares or interest in shares in that Australian company.
Ownership Threshold
There
are no provisions in our Constitution that require a shareholder to disclose ownership above a certain threshold. The Corporations
Act, however, requires a shareholder to notify us and the ASX once it, together with its associates, acquires a 5% interest in
our ordinary shares, at which point the shareholder will be considered to be a “substantial” shareholder. Further,
once a shareholder owns a 5% interest in us, such shareholder must notify us and the ASX of any increase or decrease of 1% or
more in its holding of our ordinary shares, and must also notify us and the ASX on its ceasing to be a “substantial”
shareholder. Upon becoming a U.S. public company, our shareholders become subject to disclosure requirements under U.S. securities
laws.
Issues of Shares and Change in Capital
Subject to our Constitution,
the Corporations Act, the ASX Listing Rules and any other applicable law, we may at any time issue shares and grant options or
warrants on any terms, with preferred, deferred or other special rights and restrictions and for the consideration and other terms
that the directors determine.
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 consolidate or divide our share capital into a larger or smaller number by resolution, reduce our share capital (provided
that the reduction is fair and reasonable to our shareholders as a whole and does not materially prejudice our ability to pay creditors)
or buy back our ordinary shares whether under an equal access buy-back or on a selective basis.
Change of Control
Takeovers of listed Australian
public companies, such as Immuron 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 Immuron increasing from 20% or below to more than 20% or increasing from a starting point that is above 20% and below
90%, subject to a range of exceptions.
Generally, a person will have
a relevant interest in securities if the person:
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is the holder of the securities;
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has power to exercise, or control the exercise of, a right to vote attached to the securities; or
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has 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.
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If, at a particular time, a person has
a relevant interest in issued securities and the person:
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has entered or enters into an agreement with another person with respect to the securities;
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has given or gives another person an enforceable right, or has been or is given an enforceable right by another person, in relation to the securities (whether the right is enforceable presently or in the future and whether or not on the fulfillment of a condition);
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has granted or grants an option to, or has been or is granted an option by, another person with respect to the securities; or
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the other person would have a relevant interest in the securities if the agreement were performed, the right enforced or the option exercised;
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the other person is taken to already have a relevant
interest in the securities.
There are a number of exceptions
to the above prohibition on acquiring a relevant interest in issued voting shares above 20%. In general terms, some of the more
significant exceptions include:
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when the acquisition results from the acceptance of an offer under a formal takeover bid;
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when the acquisition is conducted on market by or on behalf of the bidder under a takeover bid, the acquisition occurs during the bid period, the bid is for all the voting shares in a bid class and the bid is unconditional or only conditioned on prescribed matters set out in the Corporations Act;
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when shareholders of Immuron approve the takeover by resolution passed at general meeting;
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an acquisition by a person if, throughout the six months before the acquisition, that person or any other person has had voting power in Immuron of at least 19% and, as a result of the acquisition, none of the relevant persons would have voting power in Immuron more than three percentage points higher than they had six months before the acquisition;
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when the acquisition results from the issue of securities under a rights issue;
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when the acquisition results from the issue of securities under dividend reinvestment schemes;
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when the acquisition results from the issue of securities under underwriting arrangements;
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when the acquisition results from the issue of securities through operation of law;
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an acquisition that arises through the acquisition of a relevant interest in another listed company which is listed on a prescribed financial market or a financial market approved by ASIC;
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an acquisition arising from an auction of forfeited shares conducted on-market; or
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an acquisition arising through a compromise, arrangement, liquidation or buy-back.
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Breaches of the takeovers provisions of the Corporations Act are criminal offenses. ASIC and the Australian Takeover Panel have
a wide range of powers relating to breaches of takeover provisions, including the ability to make orders canceling contracts,
freezing transfers of, and rights attached to, securities, and forcing a party to dispose of securities. There are certain defenses
to breaches of the takeover provisions provided in the Corporations Act.
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Access to and Inspection of Documents
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Inspection of our records is governed by the Corporations Act. Any member of the public has the right to inspect or obtain copies
of our registers on the payment of a prescribed fee. Shareholders are not required to pay a fee for inspection of our 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.
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Exemptions from Certain NASDAQ Corporate Governance Rules
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The NASDAQ listing rules allow for a foreign private issuer, such as Immuron, to follow its home country practices in lieu of
certain of the NASDAQ’s corporate governance standards. We rely on exemptions from certain corporate governance standards
that are contrary to the laws, rules, regulations or generally accepted business practices in Australia. These exemptions being
sought are described below:
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We rely on an exemption from the independence requirements for a majority of our board of directors as prescribed by NASDAQ Listing Rules. The ASX Listing Rules do not require us to have a majority of independent directors although ASX Corporate Governance Principles and Recommendations do recommend a majority of independent directors. During fiscal 2018, we did not have a majority of directors who were “independent” as defined in the ASX Corporate Governance Principles and Recommendations, which definition differs from NASDAQ’s definition. Accordingly, because Australian law and generally accepted business practices in Australia regarding director independence differ to the independence requirements under NASDAQ Listing Rules, we seek to claim this exemption.
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We rely on an exemption from the requirement that our independent directors meet regularly in executive sessions under NASDAQ Listing Rules. The ASX Listing Rules and the Corporations Act do not require the independent directors of an Australian company to have such executive sessions and, accordingly, we seek to claim this exemption.
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We rely on an exemption from the requirement prescribed by NASDAQ Listing Rules that issuers obtain shareholder approval prior to the issuance of securities in connection with certain acquisitions, private placements of securities, or the establishment or amendment of certain stock option, purchase or other compensation plans. Applicable Australian law and the ASX Listing Rules differ from NASDAQ requirements, with the ASX Listing Rules providing generally for prior shareholder approval in numerous circumstances, including (i) issuance of equity securities exceeding 15% of our issued share capital in any 12-month period (but, in determining the 15% limit, securities issued under an exception to the rule or with shareholder approval are not counted), (ii) issuance of equity securities to related parties (as defined in the ASX Listing Rules) and (iii) issuances of securities to directors or their associates under an employee incentive plan. Due to differences between Australian law and rules and the NASDAQ shareholder approval requirements, we seek to claim this exemption.
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We rely on an exemption from the requirement that issuers must maintain charters for each of the following committees in compliance with NASDAQ Listing Rules: audit committee, nomination committee and compensation committee. In addition, we rely on an exemption from the requirement that issuers must maintain a code of conduct in compliance with NASDAQ Listing Rules. Applicable Australian law does not require the Company to maintain any charters for their committees nor does such law require the Company maintain a code of conduct.
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Ordinary Shares Eligible For Future Sale
Future sales of substantial
amounts of our ordinary shares or ADSs in the public market in the United States or in Australia, including ordinary shares issued
upon exercise of outstanding Warrants or options, or the possibility of such sales, could negatively affect the market price in
the United States of the ADSs and our ability to raise equity capital in the future.
DESCRIPTION OF AMERICAN DEPOSITARY SHARES
American Depositary Shares
The Bank of New York Mellon,
as depositary, will register and deliver American Depositary Shares, also referred to as ADSs. Each ADS will represent forty (40)
shares (or a right to receive forty (40) shares) deposited with the principal Melbourne, Victoria, Australia offices of Australia
and New Zealand Banking Group Ltd, Hongkong Bank of Australia and National Australia Bank Limited as custodian for the depositary.
Each ADS will also represent any other securities, cash or other property which may be held by the depositary. The depositary’s
office at which the ADSs will be administered is located at 101 Barclay Street, New York, New York 10286. The Bank of New York
Mellon’s principal executive office is located at 225 Liberty Street, New York, New York 10286.
You may hold ADSs either (A)
directly (i) by having an American Depositary Receipt, also referred to as an ADR, which is a certificate evidencing a specific
number of ADSs, registered in your name, or (ii) by having ADSs registered in your name in the Direct Registration System, or (B)
indirectly by holding a security entitlement in ADSs through your broker or other financial institution. If you hold ADSs directly,
you are a registered ADS holder, also referred to as an ADS holder. This description assumes you are an ADS holder. If you hold
the ADSs indirectly, you must rely on the procedures of your broker or other financial institution to assert the rights of ADS
holders described in this section. You should consult with your broker or financial institution to find out what those procedures
are.
The Direct Registration System,
also referred to as DRS, is a system administered by The Depository Trust Company, also referred to DTC, under which the depositary
may register the ownership of uncertificated ADSs, which ownership is confirmed by statements sent by the depositary to the registered
holders of uncertificated ADSs.
As an ADS holder, we will
not treat you as one of our shareholders and you will not have shareholder rights. Australian law governs shareholder rights. The
depositary will be the holder of the shares underlying your ADSs. As a registered holder of ADSs, you will have ADS holder rights.
A deposit agreement among us, the depositary, ADS holders and all other persons indirectly or beneficially holding ADSs sets out
ADS holder rights as well as the rights and obligations of the depositary. New York law governs the deposit agreement and the ADSs.
The following is a summary
of the material provisions of the deposit agreement. Because it is a summary, it does not contain all the information that may
be important to you. For more complete information, you should read the entire deposit agreement and the form of ADR which summarizes
certain terms of your ADSs. A copy of the deposit agreement is filed as an exhibit to the registration statement of which this
prospectus forms a part. You may also obtain a copy of the deposit agreement at the SEC’s Public Reference Room which is
located at 100 F Street, NE, Washington, DC 20549. You may obtain information on the operation of the Public Reference Room by
calling the SEC at 1-800-732-0330. You may also find the registration statement and the deposit agreement on the SEC’s website
at http://www.sec.gov.
Dividends and Other Distributions
How will you receive dividends and other distributions
on the shares?
The depositary has agreed
to pay to ADS holders the cash dividends or other distributions it or the custodian receives on shares or other deposited securities,
after deducting its fees and expenses. You will receive these distributions in proportion to the number of shares your ADSs represent.
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Cash.
The depositary will convert any cash dividend or other cash distribution we pay on the shares into U.S. dollars, if it can do so on a reasonable basis and can transfer the U.S. dollars to the United States. If that is not possible or if any government approval is needed and cannot be obtained, the deposit agreement allows the depositary to distribute the foreign currency only to those ADS holders to whom it is possible to do so. It will hold the foreign currency it cannot convert for the account of the ADS holders who have not been paid. It will not invest the foreign currency and it will not be liable for any interest.
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Before making a distribution, any withholding
taxes, or other governmental charges that must be paid will be deducted. It will distribute only whole U.S. dollars and cents and
will round fractional cents to the nearest whole cent. If the exchange rates fluctuate during a time when the depositary cannot
convert the foreign currency, you may lose some or all of the value of the distribution.
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Shares.
The depositary may distribute additional ADSs representing any shares we distribute as a dividend or free distribution. The depositary will only distribute whole ADSs. It will sell shares which would require it to deliver a fraction of an ADS (or ADSs representing those shares) and distribute the net proceeds in the same way as it does with cash. If the depositary does not distribute additional ADSs, the outstanding ADSs will also represent the new shares. The depositary may sell a portion of the distributed shares sufficient to pay its fees and expenses in connection with that distribution (or ADSs representing those shares).
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Rights to purchase additional shares.
If we offer holders of our securities any rights to subscribe for additional shares or any other rights, the depositary may make these rights available to ADS holders. If the depositary decides it is not legal and practical to make the rights available but that it is practical to sell the rights, the depositary will use reasonable efforts to sell the rights and distribute the proceeds in the same way as it does with cash. The depositary will allow rights that are not distributed or sold to lapse. In that case, you will receive no value for them.
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If the depositary makes rights available
to ADS holders, it will exercise the rights and purchase the shares on your behalf. The depositary will then deposit the shares
and deliver ADSs to the persons entitled to them. It will only exercise rights if you pay it the exercise price and any other charges
the rights require you to pay.
U.S. securities laws may restrict transfers
and cancellation of the ADSs represented by shares purchased upon exercise of rights. For example, you may not be able to trade
these ADSs freely in the United States. In this case, the depositary may deliver restricted depositary shares that have the same
terms as the ADSs described in this section except for changes needed to put the necessary restrictions in place.
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Other Distributions.
The depositary will send to ADS holders anything else we distribute on deposited securities by any means it thinks is legal, fair and practical. If it cannot make the distribution in that way, the depositary has a choice. It may decide to sell what we distributed and distribute the net proceeds, in the same way as it does with cash. Or, it may decide to hold what we distributed, in which case ADSs will also represent the newly distributed property. However, the depositary is not required to distribute any securities (other than ADSs) to ADS holders unless it receives satisfactory evidence from us that it is legal to make that distribution. The depositary may sell a portion of the distributed securities or property sufficient to pay its fees and expenses in connection with that distribution.
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The depositary is not responsible
if it decides that it is unlawful or impractical to make a distribution available to any ADS holders. We have no obligation to
register ADSs, shares, rights or other securities under the Securities Act. We also have no obligation to take any other action
to permit the distribution of ADSs, shares, rights or anything else to ADS holders. This means that you may not receive the distributions
we make on our shares or any value for them if it is illegal or impractical for us to make them available to you.
Deposit, Withdrawal and Cancellation
How are ADSs issued?
The depositary will deliver
ADSs if you or your broker deposits shares or evidence of rights to receive shares with the custodian. Upon payment of its fees
and expenses and of any taxes or charges, such as stamp taxes or stock transfer taxes or fees, the depositary will register the
appropriate number of ADSs in the names you request and will deliver the ADSs to or upon the order of the person or persons that
made the deposit.
How
can ADS holders withdraw the deposited securities?
You may surrender your ADSs
at the depositary’s office. Upon payment of its fees and expenses and of any taxes or charges, such as stamp taxes or stock
transfer taxes or fees, the depositary will deliver the shares and any other deposited securities underlying the ADSs to the ADS
holder or a person the ADS holder designates at the office of the custodian. Or, at your request, risk and expense, the depositary
will deliver the deposited securities at its office, if feasible.
How do ADS holders interchange
between certificated ADSs and uncertificated ADSs?
You may surrender your ADR
to the depositary for the purpose of exchanging your ADR for uncertificated ADSs. The depositary will cancel that ADR and will
send to the ADS holder a statement confirming that the ADS holder is the registered holder of uncertificated ADSs. Alternatively,
upon receipt by the depositary of a proper instruction from a registered holder of uncertificated ADSs requesting the exchange
of uncertificated ADSs for certificated ADSs, the depositary will execute and deliver to the ADS holder an ADR evidencing those
ADSs.
Voting Rights
How do you vote?
ADS holders may instruct the
depositary how to vote the number of deposited shares their ADSs represent. Otherwise, you won’t be able to exercise your
right to vote unless you withdraw the shares. However, you may not know about the meeting enough in advance to withdraw the shares.
The depositary will notify
ADS holders of shareholders’ meetings and arrange to deliver our voting materials to them if we ask it to. Those materials
will describe the matters to be voted on and explain how ADS holders may instruct the depositary how to vote. For instructions
to be valid, they much reach the depositary by a date set by the depositary.
The depositary will try, as
far as practical, subject to the laws of Australia and of our articles of association or similar documents, to vote or to have
its agents vote the shares or other deposited securities as instructed by ADS holders. The depositary will only vote or attempt
to vote as instructed.
We cannot assure you that
you will receive the voting materials in time to ensure that you can instruct the depositary to vote your shares. In addition,
the depositary and its agents are not responsible for failing to carry out voting instructions or for the manner of carrying out
voting instructions. This means that you may not be able to exercise your right to vote and there may be nothing you can do if
your shares are not voted as you requested.
In order to give you a reasonable
opportunity to instruct the Depositary as to the exercise of voting rights relating to Deposited Securities, if we request the
Depositary to act, we agree to give the Depositary notice of any such meeting and details concerning the matters to be voted upon
at least 30 days in advance of the meeting date.
Fees and Expenses
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Persons depositing or withdrawing shares or ADS holders must pay
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For
:
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$5.00 (or less) per 100 ADSs (or portion of 100 ADSs)
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Issuance of ADSs, including issuances resulting
from a distribution of shares or rights or other property
Cancellation of ADSs for the purpose of withdrawal,
including if the deposit agreement terminates
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$0.05 (or less) per ADS
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Any cash distribution to ADS holders
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A fee equivalent to the fee that would be payable if securities distributed to you had been shares and the shares had been deposited for issuance of ADSs
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Distribution of securities distributed to holders of deposited securities which are distributed by the depositary to ADS holders
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$0.05 (or less) per ADS per calendar year
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Depositary services
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Registration or transfer fees
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Transfer and registration of shares on our share register to or from the name of the depositary or its agent when you deposit or withdraw shares
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Expenses of the depositary
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Cable, telex and facsimile transmissions (when expressly provided in the deposit agreement) converting foreign currency to U.S. dollars
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Taxes and other governmental charges the depositary or the custodian has to pay on any ADSs or shares underlying ADSs, such as stock transfer taxes, stamp duty or withholding taxes
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As necessary
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Any charges incurred by the depositary or its agents for servicing the deposited securities
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As necessary
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The depositary collects its
fees for delivery and surrender of ADSs directly from investors depositing 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 may collect any of its fees by deduction from any cash distribution
payable to ADS holders that are obligated to pay those fees. The depositary may generally refuse to provide fee-attracting services
until its fees for those services are paid.
From time to time, the depositary
may make payments to us to reimburse us for costs and expenses generally arising out of establishment and maintenance of the ADS
program, waive fees and expenses for services provided to us by the depositary or share revenue from the fees collected from ADS
holders. In performing its duties under the deposit agreement, the depositary may use brokers, dealers, foreign currency dealers
or other service providers that are owned by or affiliated with the depositary and that may earn or share fees, spreads or commissions.
The depositary may convert
currency itself or through any of its affiliates and, in those cases, acts as principal for its own account and not as agent, advisor,
broker or fiduciary on behalf of any other person and earns revenue, including, without limitation, transaction spreads, that it
will retain for its own account. The revenue is based on, among other things, the difference between the exchange rate assigned
to the currency conversion made under the deposit agreement and the rate that the depositary or its affiliate receives when buying
or selling foreign currency for its own account. The depositary makes no representation that the exchange rate used or obtained
in any currency conversion under the deposit agreement will be the most favorable rate that could be obtained at the time or that
the method by which that rate will be determined will be the most favorable to ADS holders, subject to the depositary’s obligations
under the deposit agreement. The methodology used to determine exchange rates used in currency conversions is available upon request.
Payment of Taxes
You will be responsible for
any taxes or other governmental charges payable on your ADSs or on the deposited securities represented by any of your ADSs. The
depositary may refuse to register any transfer of your ADSs or allow you to withdraw the deposited securities represented by your
ADSs until such taxes or other charges are paid. It may apply payments owed to you or sell deposited securities represented by
your American Depositary Shares to pay any taxes owed and you will remain liable for any deficiency. If the depositary sells deposited
securities, it will, if appropriate, reduce the number of ADSs to reflect the sale and pay to ADS holders any proceeds, or send
to ADS holders any property, remaining after it has paid the taxes.
Reclassifications, Recapitalizations and Mergers
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If we:
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Then:
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● Change
the nominal or par value of our shares
● Reclassify,
split up or consolidate any of the deposited securities
● Distribute
securities on the shares that are not distributed to you
● Recapitalize,
reorganize, merge, liquidate, sell all or substantially all of our assets, or take any similar action
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The cash, shares or other securities received by
the depositary will become deposited securities. Each ADS will automatically represent its equal share of the new deposited securities.
The depositary may distribute new ADSs representing
the new deposited securities or ask you to surrender your outstanding ADRs in exchange for new ADRs identifying the new deposited
securities.
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Limitations
on Obligations and Liability
Limits
on Our Obligations and the Obligations of the Depositary; Limits on Liability to Holders of ADSs
The
deposit agreement expressly limits our obligations and the obligations of the depositary. It also limits our liability and the
liability of the depositary. We and the depositary:
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are
only obligated to take the actions specifically set forth in the deposit agreement without negligence or bad faith;
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are
not liable if we are or it is prevented or delayed by law or circumstances beyond our or its control from performing our or
its obligations under the deposit agreement;
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are
not liable if we or it exercises discretion permitted under the deposit agreement;
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are
not liable for the inability of any holder of ADSs to benefit from any distribution on deposited securities that is not made
available to holders of ADSs under the terms of the deposit agreement, or for any special, consequential or punitive damages
for any breach of the terms of the deposit agreement;
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have
no obligation to become involved in a lawsuit or other proceeding related to the ADSs or the deposit agreement on your behalf
or on behalf of any other person;
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are
not liable for the acts or omissions of any securities depository, clearing agency or settlement system; and
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may
rely upon any documents we believe or it believes in good faith to be genuine and to have been signed or presented by the
proper person.
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In
the deposit agreement, we and the depositary agree to indemnify each other under certain circumstances.
Requirements
for Depositary Actions
Before
the depositary will deliver or register a transfer of ADSs, make a distribution on ADSs, or permit withdrawal of shares, the depositary
may require:
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payment
of stock transfer or other taxes or other governmental charges and transfer or registration fees charged by third parties
for the transfer of any shares or other deposited securities;
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satisfactory
proof of the identity and genuineness of any signature or other information it deems necessary; and
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compliance
with regulations it may establish, from time to time, consistent with the deposit agreement, including presentation of transfer
documents.
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The
depositary may refuse to deliver ADSs or register transfers of ADSs when the transfer books of the depositary or our transfer
books are closed or at any time if the depositary or we think it advisable to do so.
Your
Right to Receive the Shares Underlying Your ADSs
ADS
holders have the right to cancel their ADSs and withdraw the underlying shares at any time except:
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when
temporary delays arise because: (i) the depositary has closed its transfer books or we have closed our transfer books; (ii)
the transfer of shares is blocked to permit voting at a shareholders’ meeting; or (iii) we are paying a dividend on our shares;
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when
you owe money to pay fees, taxes and similar charges; or
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when
it is necessary to prohibit withdrawals in order to comply with any laws or governmental regulations that apply to ADSs or
to the withdrawal of shares or other deposited securities.
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This
right of withdrawal may not be limited by any other provision of the deposit agreement.
Direct
Registration System
In
the deposit agreement, all parties to the deposit agreement acknowledge that the DRS and Profile Modification System, or Profile,
will apply to uncertificated ADSs upon acceptance thereof to DRS by DTC. DRS is the system administered by DTC under which the
depositary may register the ownership of uncertificated ADSs, which ownership will be confirmed by statements sent by the depositary
to the registered holders of uncertificated ADSs. Profile is a required feature of DRS that allows a DTC participant, claiming
to act on behalf of a registered holder of ADSs, to direct the depositary to register a transfer of those ADSs to DTC or its nominee
and to deliver those ADSs to the DTC account of that DTC participant without receipt by the depositary of prior authorization
from the ADS holder to register that transfer.
In
connection with and in accordance with the arrangements and procedures relating to DRS/Profile, the parties to the deposit agreement
understand that the depositary will not determine whether the DTC participant that is claiming to be acting on behalf of an ADS
holder in requesting registration of transfer and delivery described in the paragraph above has the actual authority to act on
behalf of the ADS holder (notwithstanding any requirements under the Uniform Commercial Code). In the deposit agreement, the parties
agree that the depositary’s reliance on and compliance with instructions received by the depositary through the DRS/Profile
System and in accordance with the deposit agreement will not constitute negligence or bad faith on the part of the depositary.
Shareholder
Communications; Inspection of Register of Holders of ADSs
The
depositary will make available for your inspection at its office all communications that it receives from us as a holder of deposited
securities that we make generally available to holders of deposited securities. The depositary will send you copies of those communications
if we ask it to. You have a right to inspect the register of holders of ADSs, but not for the purpose of contacting those holders
about a matter unrelated to our business or the ADSs.
DESCRIPTION
OF WARRANTS
The
following summary of certain terms of the Warrants is not complete and is subject to, and qualified in its entirety by the provisions
of the ADS Warrant Agent Agreement and Form of Global Warrant to Purchase ADSs, which are filed as exhibits to the registration
statement of which this prospectus is a part. Prospective investors should carefully review the terms set forth in the ADS Warrant
Agent Agreement and Form of Global Warrant to Purchase ADSs. Warrants issued in connection with this offering will be administered
by The Bank of New York Mellon as Warrant Agent.
●
Global Certificates, Book-entry Interests
. The Warrants will be represented by one or more global certificates
in registered form. The global certificate will be deposited with the Warrant Agent as custodian for DTC and registered in the
name of Cede & Co., as nominee of DTC. Ownership of interests in the global warrant certificate will be limited to persons
that have accounts with DTC or persons that have accounts with DTC participants. Book-entry interests in the Warrants will be
shown on, and transfers of such interests will be effected only through records maintained by DTC and its participants. So long
as the Warrants are held in global form, DTC will be considered the sole holder of the Warrants. Beneficial owners must rely on
the procedures of the participants through which they own book-entry interests to exercise their Warrants or transfer their Warrants.
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Exercisability
. The Warrants are exercisable immediately upon issuance and at any time up to the date
that is five years from the date of issuance. The Warrants will be exercisable, at the option of each holder, in whole or in part
by delivering to us a duly executed exercise notice accompanied by payment in full for the number of ADSs purchased upon such
exercise. The Company will pay the ADS issuance fee of US$ 0.05 per ADS and any other applicable charges and taxes in connection
with any such exercise.
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Maximum Percentage
. A holder of a Warrant shall not have the right to exercise such Warrant, to the extent
that after giving effect to such exercise, such person (together with such person’s affiliates and certain other persons),
would beneficially own in excess of 4.99% (the “Maximum Percentage”) of the ordinary shares outstanding immediately
after giving effect to such exercise. Subject to certain exceptions, “beneficial ownership” for purposes of determining
the Maximum Percentage is calculated in accordance with Section 13(d) of the Exchange Act and the regulations of the SEC thereunder.
Upon request by a Warrant holder, we will provide current information regarding the number of our outstanding ordinary shares.
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Exercise Price
. The initial exercise price per ADS purchasable upon exercise of the Warrants is $10.00.
The Warrants may not be exercised on a “cashless” or “net exercise” basis except in certain limited circumstances.
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Restrictive Legend Events
. We will notify the Warrant Agent and each holder if we are unable to deliver
ADSs via DTC transfer or otherwise (without restrictive legend), because (a) the SEC has issued a stop order with respect to the
registration statement relating to the ADSs, (b) the SEC otherwise has suspended or withdrawn the effectiveness of such registration
statement, either temporarily or permanently, (c) we have suspended or withdrawn the effectiveness of the registration statement,
either temporarily or permanently, or (d) otherwise (each a “Restrictive Legend Event”). If a Restrictive Legend Event
occurs after a Warrant holder has exercised a Warrant in accordance with its terms but prior to the delivery of the ADSs, or if
we do not cause the depositary to timely deliver ADSs to a Warrant holder upon exercise of the Warrants, we will be obligated
to pay a cash buy-in amount to the holder of the Warrants who did not receive ADSs upon such holder’s exercise of Warrants.
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Anti-Dilution Provisions
. The exercise price per Warrant and the numbers of Warrants shall be subject to adjustment
from time to time in accordance with the ASX Listing Rules upon the occurrence of certain stock dividends and distributions, stock
splits, stock subdivisions and combinations, reclassifications, rights issues, or similar events affecting our ADSs or ordinary
shares, or upon the occurrence of a change in ADS ratio.
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Transferability
. Subject to applicable laws, the Warrants may be transferred at the option of the holders upon
surrender of the Warrants to us together with the appropriate instruments of transfer.
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Warrant Agent and Exchange Listing
. The Warrants will be issued in registered form under an ADS Warrant Agent
Agreement between The Bank of New York Mellon, as warrant agent and us and listed on The NASDAQ Capital Market under the symbol
“IMRNW.”
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Rights as a Shareholder
. Except as otherwise provided in the ADS Warrant Agent Agreement or by virtue of such
holder’s ownership of ADSs or ordinary shares, the holder of Warrants does not have rights or privileges of a holder of
ADSs or ordinary shares, including any voting rights, until the holder exercises the Warrant.
PLAN
OF DISTRIBUTION
We
will deliver ADSs offered hereby upon exercise of the Warrants we issued in June 2017. As of the date of this prospectus, the
Warrants were exercisable for a total of up to 701,500 ADSs, which can be adjusted pursuant to the terms of the Warrants, and
no more of the Warrants will be issued. We will not issue fractional ADSs upon exercise of the Warrants. In order to exercise
any of the Warrants, the holder must deliver the information required in the Warrants, along with payment for the exercise price
of the ADSs to be purchased. We will then cause to be delivered ADSs.
TAXATION
Holders
of our ADSs should consult their own tax advisors as to the United States, Australian or other tax consequences of the purchase,
ownership and disposition of ADSs, including, in particular, the effect of any foreign, state or local taxes.
AUSTRALIAN
TAX CONSEQUENCES
In
this section we discuss the material Australian tax considerations that apply to non-Australian tax residents with respect to
the acquisition, ownership and disposal of the absolute beneficial ownership of ADSs, which are evidenced by ADRs. This discussion
is based upon existing Australian tax law as of the date of this prospectus, which is subject to change, possibly retrospectively.
This discussion does not address all aspects of Australian income tax law which may be important to particular investors in light
of their individual investment circumstances, such as ADSs or shares held by investors subject to special tax rules (for example,
financial institutions, insurance companies or tax exempt organizations). In addition, this summary does not discuss any foreign
or state tax considerations, other than stamp duty. Prospective investors are urged to consult their tax advisors regarding the
Australian and foreign income and other tax considerations of the purchase, ownership and disposition of the ADSs or shares.
Nature
of ADSs for Australian Taxation Purposes
Holders
of our ADSs are treated as the owners of the underlying ordinary shares for Australian income tax and capital gains tax purposes.
Therefore, dividends paid on the underlying ordinary shares will be treated for Australian tax purposes as if they were paid directly
to the owners of ADSs, and the disposal of ADSs will be treated for Australian tax purposes as the disposal of the underlying
ordinary shares. In the following analysis we discuss the application of the Australian income tax and capital gains tax rules
to non-Australian resident holders of ADSs.
Taxation
of Dividends
Australia
operates a dividend imputation system under which dividends may be declared to be ‘franked’ to the extent of tax paid
on company profits. Fully franked dividends are not subject to dividend withholding tax. Dividends that are not franked or are
partly franked and are paid to non-Australian resident shareholders are subject to dividend withholding tax, but only to the extent
the dividends are not franked.
Unfranked
dividends paid to a non-resident shareholder are subject to withholding tax at 30%, unless the shareholder is a resident of a
country with which Australia has a double taxation agreement. In accordance with the provisions of the Double Taxation Convention
between Australia and the U.S., the maximum rate of Australian tax on unfranked dividends to which a resident of the U.S. is beneficially
entitled is 15%, where the U.S. resident holds less than 10% of the voting rights in our company, or 5% where the U.S. resident
holds 10% or more of the voting rights in our company. The Double Taxation Convention between Australia and the U.S. does not
apply to limit the tax rate on dividends where the ADSs are effectively connected to a permanent establishment or a fixed base
carried on by the owner of the ADSs in Australia through which the shareholder carries on business or provides independent personal
services, respectively.
Tax
on Sales or Other Dispositions of Shares - Capital Gains Tax
Australian
capital gains derived by non-Australian residents in respect of the disposal of capital assets that are not taxable Australian
property will be disregarded. Non-Australian resident shareholders will not be subject to Australian capital gains tax on the
capital gain made on a disposal of our shares, unless they, together with associates, hold 10% or more of our issued capital,
tested either at the time of disposal or over any continuous 12 month period in the 24 months prior to disposal, and the value
of our shares at the time of disposal are wholly or principally attributable to Australian real property assets.
Australian
capital gains tax applies to net capital gains at a taxpayer’s marginal tax rate. Previously, certain shareholders, such
as individuals were entitled to a discount of 50% for capital gains on shares held for greater than 12 months. However, as part
of the 2012-2013 Federal Budget measures, the Australian Government announced changes to the application of the CGT discount for
foreign resident individuals on taxable Australian assets, including shares. These changes became effective on 29 June 2013.
The
effect of the change is to:
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Retain access to the
full CGT discount for discount capital gains of foreign resident individuals in respect of the increase in the value of a
CGT asset that occurred before 9 May 2013; and
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Remove the CGT discount
for discount capital gains for foreign resident individuals that arise after 8 May 2013.
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Foreign
residents will still have access to a discount on discount capital gains accrued prior to 8 May 2013 provided they choose to obtain
a market valuation for their assets as at that date.
Net
capital gains are calculated after reduction for capital losses, which may only be offset against capital gains.
Tax
on Sales or Other Dispositions of Shares - Shareholders Holding Shares on Revenue Account
Some
non-Australian resident shareholders may hold shares on revenue rather than on capital account, for example, share traders. These
shareholders may have the gains made on the sale or other disposal of the shares included in their assessable income under the
ordinary income provisions of the income tax law, if the gains are sourced in Australia.
Non-Australian
resident shareholders assessable under these ordinary income provisions in respect of gains made on shares held on revenue account
would be assessed for such gains at the Australian tax rates for non-Australian residents, which start at a marginal rate of 32.5%
for non-Australian resident individuals. Some relief from the Australian income tax may be available to such non-Australian resident
shareholders under the Double Taxation Convention between the U.S. and Australia, for example, because the shareholder does not
have a permanent establishment in Australia.
To
the extent an amount would be included in a non-Australian resident shareholder’s assessable income under both the capital
gains tax provisions and the ordinary income provisions, the capital gain amount would generally be reduced, so that the shareholder
would not be subject to double tax on any part of the income gain or capital gain.
Dual
Residency
If
a shareholder were a resident of both Australia and the U.S. under those countries’ domestic taxation laws, that shareholder
may be subject to tax as an Australian resident. If, however, the shareholder is determined to be a U.S. resident for the purposes
of the Double Taxation Convention between the U.S. and Australia, the Australian tax applicable would be limited by the Double
Taxation Convention. Shareholders should obtain specialist taxation advice in these circumstances.
Stamp
Duty
A
transfer of shares of a company listed on the ASX is not subject to Australian stamp duty except in some circumstances where one
person, or associated persons, acquires 90% or more of the shares.
Australian
Death Duty
Australia
does not have estate or death duties. No capital gains tax liability is realized upon the inheritance of a deceased person’s
shares. The disposal of inherited shares by beneficiaries, may, however, give rise to a capital gains tax liability.
Goods
and Services Tax
The
issue or transfer of shares will not incur Australian goods and services.
United
States Federal Income Tax Consequences
The
following is a summary of certain material U.S. federal income tax consequences that generally apply to U.S. Holders (as defined
below) who hold ADSs as capital assets. This summary is based on the U.S. Internal Revenue Code of 1986, as amended, or the Code,
Treasury regulations promulgated thereunder, judicial and administrative interpretations thereof, and the bilateral taxation convention
between Australia and the U.S., or the Tax Treaty, all as in effect on the date hereof and all of which are subject to change
either prospectively or retroactively. This summary does not discuss all the tax consequences that may be relevant to an investment
in ADSs by a U.S. Holder in light of such holder’s particular circumstances or to U.S. Holders subject to special rules,
including broker-dealers, financial institutions, certain insurance companies, investors liable for alternative minimum tax, tax-exempt
organizations, regulated investment companies, non-resident aliens of the U.S. or taxpayers whose functional currency is not the
U.S. dollar, persons who hold the ADSs through partnerships or other pass-through entities, persons who acquired their ADSs through
the exercise or cancellation of any employee stock options or otherwise as compensation for their services, investors that actually
or constructively own 10% or more of our shares by vote or value, and investors holding ADSs as part of a straddle or appreciated
financial position or as part of a hedging or conversion transaction.
If
a partnership or an entity treated as a partnership for U.S. federal income tax purposes owns ADSs, the U.S. federal income tax
treatment of a partner in such a partnership will generally depend upon the status of the partner and the activities of the partnership.
A partnership that owns ADSs and the partners in such partnership should consult their own tax advisors about the U.S. federal
income tax consequences of holding and disposing of ADSs.
This
summary does not address the effect of any U.S. federal taxation other than U.S. federal income taxation. In addition, this summary
does not include any discussion of U.S. federal estate and gift tax, state, local or foreign taxation. You are urged to consult
your tax advisors regarding the foreign and U.S. federal, state and local tax considerations of an investment in ADSs.
For
purposes of this summary, the term “U.S. Holder” means an individual who is a citizen or, for U.S. federal income
tax purposes, a resident of the U.S., a corporation or other entity taxable as a corporation created or organized in or under
the laws of the U.S. or any political subdivision thereof, an estate whose income is subject to U.S. federal income tax regardless
of its source, or a trust if (a) a court within the U.S. is able to exercise primary supervision over administration of the trust,
and one or more U.S. persons have the authority to control all substantial decisions of the trust or (b) it has a valid election
in effect under applicable U.S. Treasury regulations to be treated as a U.S. person.
Taxation
of Dividends
For
U.S. federal income tax purposes, U.S. Holders of ADSs will be treated as owning the underlying ordinary shares represented by
the ADSs held by them. Subject to the passive foreign investment company, or PFIC rules discussed below, the gross amount of any
distributions received with respect to the underlying ordinary shares represented by the ADSs, including the amount of any Australian
taxes withheld therefrom, will constitute dividends for U.S. federal income tax purposes, to the extent of our current and accumulated
earnings and profits, as determined under U.S. federal income tax principles. You will be required to include this amount of dividends
in gross income as ordinary income. Distributions in excess of our earnings and profits will be treated as a non-taxable return
of capital to the extent of your tax basis in the ADSs, and any amount in excess of your tax basis will be treated as gain from
the sale of ADSs. See “Disposition of ADSs” below for the discussion on the taxation of capital gains. Dividends will
not qualify for the dividends-received deduction generally available to corporations under Section 243 of the Code.
Dividends
that we pay in Australian dollars, including the amount of any Australian taxes withheld therefrom, will be included in your income
in a U.S. dollar amount calculated by reference to the exchange rate in effect on the day such dividends are received. A U.S.
Holder who receives payment in Australian dollars and converts Australian dollars into U.S. dollars at an exchange rate other
than the rate in effect on such day will likely have a foreign currency exchange gain or loss, which would be treated as U.S.-source
ordinary income or loss.
Subject
to complex limitations, any Australian withholding tax imposed on our dividends will be a foreign income tax eligible for credit
against a U.S. Holder’s U.S. federal income tax liability (or, alternatively, for deduction against income in determining
such tax liability). The limitations set forth in the Code include computational rules under which foreign tax credits allowable
with respect to specific classes of income cannot exceed the U.S. federal income taxes otherwise payable with respect to each
such class of income. Dividends generally will be treated as foreign-source passive category income or general category income
for U.S. foreign tax credit purposes, depending upon the holder’s circumstances. A U.S. Holder will be denied a foreign
tax credit with respect to Australian income tax withheld from dividends received with respect to the underlying ordinary shares
represented by the ADSs to the extent such U.S. Holder has not held the ADSs for at least 16 days of the 31-day period beginning
on the date that is 15 days before the ex-dividend date or to the extent such U.S. Holder is under an obligation to make related
payments with respect to substantially similar or related property. Any days during which a U.S. Holder has substantially diminished
its risk of loss on the ADSs are not counted toward meeting the 16-day holding period required by the statute. The rules relating
to the determination of the foreign tax credit are complex. You should consult with your own tax advisors to determine whether
and to what extent you would be entitled to this credit.
Subject
to certain limitations, “qualified dividend income” received by a non-corporate U.S. Holder will be subject to tax
at a reduced maximum tax rate of 20 percent. Distributions taxable as dividends generally qualify for the 20 percent rate provided
that either: (i) the issuer is entitled to benefits under the Tax Treaty or (ii) the ADSs are readily tradable on an established
securities market in the U.S. and certain other requirements are met. We believe that we are entitled to benefits under the Tax
Treaty and that the ADSs currently are readily tradable on an established securities market in the U.S. However, no assurance
can be given that the ADSs will remain readily tradable. Furthermore, the reduced rate does not apply to dividends received from
PFICs. The amount of foreign tax credit is limited in the case of foreign qualified dividend income. U.S. Holders of ADSs should
consult their own tax advisors regarding the effect of these rules in their particular circumstances.
Disposition
of ADSs
If
you sell or otherwise dispose of ADSs, you will recognize gain or loss for U.S. federal income tax purposes in an amount equal
to the difference between the amount realized on the sale or other disposition and your adjusted tax basis in the ADSs. Subject
to the PFIC rules discussed below, such gain or loss generally will be capital gain or loss and will be long-term capital gain
or loss if you have held the ADSs for more than one year at the time of the sale or other disposition. In general, any gain that
you recognize on the sale or other disposition of ADSs will be U.S.-source for purposes of the foreign tax credit limitation;
losses will generally be allocated against U.S.-source income. Deduction of capital losses is subject to certain limitations under
the Code.
In
the case of a cash basis U.S. Holder who receives Australian dollars in connection with the sale or disposition of ADSs, the amount
realized will be based on the U.S. dollar value of the Australian dollars received with respect to the ADSs as determined on the
settlement date of such exchange. A U.S. Holder who receives payment in Australian dollars and converts them into U.S. dollars
at a conversion rate other than the rate in effect on the settlement date may have a foreign currency exchange gain or loss that
would be treated as ordinary income or loss.
An
accrual basis U.S. Holder may elect the same treatment of foreign currency gain or loss required of cash basis taxpayers with
respect to a sale or disposition of ADSs, provided that the election is applied consistently from year to year. Such election
may not be changed without the consent of the Internal Revenue Service, or IRS. In the event that an accrual basis U.S. Holder
does not elect to be treated as a cash basis taxpayer (pursuant to the Treasury regulations applicable to foreign currency transactions),
such U.S. Holder may have a foreign currency gain or loss for U.S. federal income tax purposes because of differences between
the U.S. dollar value of the Australian dollars received prevailing on the trade date and the settlement date. Any such currency
gain or loss would be treated as ordinary income or loss and would be in addition to gain or loss, if any, recognized by such
U.S. Holder on the sale or other disposition of such ADSs.
Passive
Foreign Investment Companies
The
Code provides special, generally adverse, rules regarding certain distributions received by U.S. holders with respect to, and
sales, exchanges and other dispositions, including pledges, of, shares of stock of a PFIC. A foreign corporation will be a PFIC
for any taxable year if at least 75% of its gross income for the taxable year is passive income or at least 50% of its gross assets
during the taxable year, based on a quarterly average and generally by value, produce or are held for the production of passive
income. Passive income for this purpose generally includes, among other things, dividends, interest, rents, royalties, gains from
commodities and securities transactions and gains from the disposition of assets that produce or are held for the production of
passive income. In determining whether a foreign corporation is a PFIC, a pro-rata portion of the income and assets of each corporation
in which it owns, directly or indirectly, at least a 25% interest (by value) is taken into account.
Based
on our business results for the last fiscal year and the composition of our assets, we believe that we were not a PFIC for U.S.
federal income tax purposes for the taxable year ended June 30, 2018. However, the determination of PFIC status is a factual determination
that must be made annually at the close of each taxable year and therefore, there can be no certainty as to our PFIC status for
a taxable year until the close of that taxable year. Our PFIC status could change depending, among other things, upon a decrease
in the trading price of our ordinary shares or ADSs and how quickly we make use of the proceeds from the IPO, as well as changes
in the composition and relative values of our assets and the composition of our income. Moreover, the rules governing whether
certain assets are active or passive are complex and in some cases their application can be uncertain. If we were a PFIC in any
year during a U.S. holder’s holding period for the ordinary shares or ADSs, we generally would continue to be treated as
a PFIC for each subsequent year during which the U.S. holder owned the ordinary shares or ADSs.
If
we are a PFIC for any taxable year during which a U.S. holder holds ordinary shares or ADSs, any “excess distribution”
that the holder receives and any gain recognized from a sale or other disposition (including a pledge) of such ordinary shares
or ADSs will be subject to special tax rules, unless the holder makes a mark-to-market election or qualified electing fund election,
as discussed below. Any distribution in a taxable year that is greater than 125% of the average annual distribution received by
a U.S. holder during the shorter of the three preceding taxable years or such holder’s holding period for the ordinary shares
or ADSs will be treated as an excess distribution. Under these special tax rules:
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the
excess distribution or gain will be allocated ratably over the U.S. holder’s holding period for the ordinary shares
or ADSs;
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the
amount allocated to the current taxable year, and any taxable year prior to the first taxable year in which we were a PFIC
in the U.S. holder’s holding period, will be treated as ordinary income arising in the current taxable year; and
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the
amount allocated to each other year will be subject to income tax at the highest rate in effect for that year and applicable
to the U.S. holder and the interest charge generally applicable to underpayments of tax will be imposed on the resulting tax
attributable to each such year.
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If
we are a PFIC, the tax liability for amounts allocated to years prior to the year of disposition or excess distribution cannot
be offset by any net operating loss, and gains (but not losses) recognized on the transfer of the ordinary shares or ADSs cannot
be treated as capital gains, even if the ordinary shares or ADSs are held as capital assets. In addition, non-corporate U.S. holders
will not be eligible for reduced rates of taxation on any dividends that we pay if we are a PFIC for either the taxable year in
which the dividend is paid or the preceding year. Furthermore, unless otherwise provided by the U.S. Treasury Department, each
U.S. holder of a PFIC is required to file an annual report containing such information as the U.S. Treasury Department may require.
If
we are a PFIC for any taxable year during which any of our non-U.S. subsidiaries is also a PFIC, a U.S. holder of ordinary shares
or ADSs during such year would be treated as owning a proportionate amount (by value) of the shares of the lower-tier PFIC for
purposes of the application of these rules to such subsidiary. You should consult your tax advisors regarding the tax consequences
if the PFIC rules apply to any of our subsidiaries.
In
certain circumstances, in lieu of being subject to the special tax rules discussed above, you may make an election to include
gain on the stock of a PFIC as ordinary income under a mark-to-market method, provided that such stock is regularly traded on
a qualified exchange. Under current law, the mark-to-market election may be available to U.S. holders of ADSs if the ADSs are
listed on NASDAQ, which constitutes a qualified exchange, although there can be no assurance that the ADSs will be “regularly
traded” for purposes of the mark-to-market election. It should also be noted that it is intended that only the ADSs and
not the ordinary shares will be listed on NASDAQ. While we would expect the Australian Stock Exchange, on which the ordinary shares
are listed, to be considered a qualified exchange, no assurance can be given as to whether the Australian Stock Exchange is a
qualified exchange, or that the ordinary shares would be traded in sufficient frequency to be considered regularly traded for
these purposes. Additionally, because a mark-to-market election cannot be made for equity interests in any lower-tier PFIC that
we may own, a U.S. holder that makes a mark-to-mark election with respect to us may continue to be subject to the PFIC rules with
respect to any indirect investments held by us that are treated as an equity interest in a PFIC for U.S. federal income tax purposes.
If you make an effective mark-to-market election, you will include in each year that we are a PFIC as ordinary income the excess
of the fair market value of your ordinary shares or ADSs at the end of your taxable year over your adjusted tax basis in the ordinary
shares or ADSs. You will be entitled to deduct as an ordinary loss in each such year the excess of your adjusted tax basis in
the ordinary shares or ADSs over their fair market value at the end of the year, but only to the extent of the net amount previously
included in income as a result of the mark-to-market election. If you make an effective mark-to-market election, any gain you
recognize upon the sale or other disposition of your ordinary shares or ADSs in a year that we are a PFIC will be treated as ordinary
income and any loss will be treated as ordinary loss, but only to the extent of the net amount previously included in income as
a result of the mark-to-market election. Any gain or loss you recognize upon the sale or other disposition of your ordinary shares
or ADSs in a year when we are not a PFIC will be a capital gain or loss. See “
Disposition of ADSs”
above for
the treatment of capital gains and losses.
Your
adjusted tax basis in the ordinary shares or ADSs will be increased by the amount of any income inclusion and decreased by the
amount of any deductions under the mark-to-market rules. If you make a mark-to-market election, it will be effective for the taxable
year for which the election is made and all subsequent taxable years unless the ordinary shares or ADSs are no longer regularly
traded on a qualified exchange or the IRS consents to the revocation of the election. You are urged to consult your tax advisors
about the availability of the mark-to-market election, and whether making the election would be advisable in your particular circumstances.
In the case of a valid mark-to-market election, any distributions we make would generally be subject to the rules discussed above
under “—
Taxation of Dividends
,” except the reduced rates of taxation on any dividends received from us
would not apply if we are a PFIC.
Alternatively,
you can sometimes avoid the PFIC rules described above by electing to treat us as a “qualified electing fund” under
Section 1295 of the Code. However, this option will not be available to you because we do not intend to comply with the requirements
necessary to permit you to make this election.
U.S.
holders are urged to contact their own tax advisors regarding the determination of whether we are a PFIC and the tax consequences
of such status.
Additional
Tax on Investment Income
U.S.
Holders that are individuals, estates, or trusts and whose income exceeds certain thresholds will be subject to a 3.8% Medicare
contribution tax on net investment income, which will include dividends on and capital gains from the sale or other taxable disposition
of ADSs, subject to certain limitations and exceptions.
Backup
Withholding and Information Reporting
Payments
in respect of ADSs may be subject to information reporting to the IRS and to U.S. backup withholding tax at a rate equal to the
fourth lowest income tax rate applicable to individuals (which, under current law, is 28%). Backup withholding will not apply,
however, if you (i) are a corporation or come within certain exempt categories and demonstrate the fact when so required or (ii)
furnish a correct taxpayer identification number and make any other required certification.
Backup
withholding is not an additional tax. Amounts withheld under the backup withholding rules may be credited against a U.S. Holder’s
U.S. tax liability. A U.S. Holder may obtain a refund of any excess amounts withheld under the backup withholding rules by filing
the appropriate claim for refund with the IRS, which is generally an annual income tax return.
U.S.
individuals who hold certain specified foreign financial assets, including stock in a foreign corporation, with values in excess
of certain thresholds are required to file IRS Form 8938 with their U.S. federal income tax return. Such form requires disclosure
of information concerning such foreign assets, including their value. Failure to file the form when required is subject to penalties.
An exemption from reporting applies to foreign assets held through a U.S. financial institution, generally including a non-U.S.
branch or subsidiary of a U.S. institution and a U.S. branch of a non-U.S. institution. Investors are encouraged to consult with
their own tax advisors regarding the possible application of this disclosure requirement to their investment in our ADSs.
LEGAL
MATTERS
The
validity of the ordinary shares represented by the ADSs and the Warrants to be issued in this offering will be passed upon for
us by Francis Abourizk Lightowlers, our Australian counsel. Certain matters as to U.S. federal law and New York state law will
be passed upon for us by Carter Ledyard & Milburn LLP, our U.S. counsel.
EXPERTS
The
consolidated financial statements as of and for the year ended June 30, 2018 incorporated by reference in this prospectus and
elsewhere in the registration statement, have been so incorporated by reference in reliance upon the report of Grant Thornton
Audit Pty Ltd., independent registered public accounting firm, upon the authority of said firm as experts in accounting and auditing.
The consolidated financial statements as of June 30, 2017 and for the years ended June 30, 2017 and 2016 incorporated by reference
in this prospectus and elsewhere in the registration statement, have been so included in reliance upon the report of Marcum LLP,
independent registered public accounting firm, upon the authority of said firm as experts in accounting and auditing.
OFFERING
EXPENSES
We
estimate the following expenses in connection with this prospectus:
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SEC Registration Fee
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A$
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Legal fees and expenses
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7,510
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Accountants’ fees and expenses
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31,170
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Miscellaneous
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Nil
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Total
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$
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38,680
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ENFORCEABILITY
OF CIVIL LIABILITIES
We
are a public limited company incorporated under the laws of Australia. Certain of our directors are non-residents of the United
States and substantially all of their assets are located outside the United States. As a result, it may not be possible for you
to:
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effect
service of process within the United States upon our non-U.S. resident directors or on
us;
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enforce
in U.S. courts judgments obtained against our non-U.S. resident directors or us in the
United States courts in any action, including actions under the civil liability provisions
of U.S. securities laws;
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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
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bring
an original action in an Australian court to enforce liabilities against our non-U.S.
resident directors or us based solely upon U.S. securities laws.
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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 securities laws.
The
disclosure in this section is not based on the opinion of counsel.
We
have appointed Delaney Corporate Services Ltd. at 99 Washington Avenue, Suite 805A, Albany, New York 12210, 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.
ENFORCEABILITY
OF CIVIL LIABILITIES AND
AGENT FOR SERVICE OF PROCESS IN THE UNITED STATES
We
are incorporated in Australia, most of our executive officers and directors and the Australian experts named herein are non-residents
of the United States, and a substantial portion of our assets and the assets of such persons are located outside the United States.
For further information regarding enforceability of civil liabilities against us and certain other persons, see the risk factor
that begins with “Service and enforcement of legal process” under the heading “Risk Factors.” We have
appointed Puglisi and Associates as our agent for service of process in the United States.
We
are a “foreign private issuer” as defined in Rule 3b-4 under the Securities Exchange Act of 1934, or the Exchange
Act. As a result, our proxy solicitations are not subject to the disclosure and procedural requirements of Regulation 14A
under the Exchange Act and transactions in our equity securities by our officers and directors are exempt from Section 16 of
the Exchange Act. In addition, we are not required under the Exchange Act to file periodic reports and financial statements
as frequently or as promptly as U.S. companies whose securities are registered under the Exchange Act. We publish annually an
annual report filed on Form 20-F containing financial statements that have been examined and reported on, with an opinion
expressed by, a qualified independent auditor or certified public accountant. We prepare our annual financial statements in
Australian Dollars and in accordance with International Financial Reporting Standards as issued by the International
Accounting Standards Board. If there is any inconsistency between the information in this prospectus and any prospectus
supplement, you should rely on the information in the prospectus supplement as relevant. You should read this prospectus and
any prospectus supplement together with the additional information described under the headings “Where You Can Find
Additional Information” and “Incorporation of Documents by Reference.” The registration statement
containing this prospectus, including the exhibits to the registration statement, provides additional information about us
and the securities offered under this prospectus. The registration statement, including the exhibits, can be read at the
SEC’s website or at the SEC’s offices mentioned under “Where You Can Find Additional Information” and
“Incorporation of Documents by Reference.”
WHERE
YOU CAN FIND ADDITIONAL INFORMATION
We
have filed with the SEC a registration statement on Form F-3, including relevant exhibits and schedules, under the
Securities Act with respect to the ADSs to be sold in this offering. This prospectus, which constitutes a part of the
registration statement, summarizes material provisions of contracts and other documents that we refer to in this prospectus.
Since this prospectus does not contain all of the information contained in the registration statement, you should read the
registration statement and its exhibits and schedules for further information with respect to us and our ordinary shares
represented by ADSs. Statements contained in this prospectus regarding the contents of any agreement, contract or other
document referred to are not necessarily complete and reference is made in each instance to the copy of the contract or
document filed as an exhibit to the registration statement. 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. Please visit the SEC’s website at www.sec.gov for further information on the SEC’s
public reference room.
INCORPORATION
OF DOCUMENTS BY REFERENCE
This
prospectus is part of the registration statement, but the registration statement includes and incorporates by reference additional
information and exhibits. The Securities and Exchange Commission permits us to “incorporate by reference” the information
contained in documents we file with the Securities and Exchange Commission, which means that we can disclose important information
to you by referring you to those documents rather than by including them in this prospectus. Information that is incorporated
by reference is considered to be part of this prospectus and you should read it with the same care that you read this prospectus.
Information that we file later with the Securities and Exchange Commission will automatically update and supersede the information
that is either contained, or incorporated by reference, in this prospectus, and will be considered to be a part of this prospectus
from the date those documents are filed. We have filed with the Securities and Exchange Commission, and incorporate by reference
in this prospectus:
Our
annual report on Form 20-F for the year ended June 30, 2018, filed with the SEC on October 31, 2018;
Our
Form 6-Ks filed with the SEC on November 9, 2018 , November 19, 2018 (2 filings), November 27, 2018 and January 3, 2019;
and
The
description of the ADSs and ordinary shares contained in our Form 8-A filed with the SEC on May 25, 2017.
We
will provide to each person, including any beneficial owner, to whom this prospectus is delivered, a copy of any or all the information
that has been incorporated by reference in this prospectus but not delivered with this prospectus (and any exhibits specifically
incorporated in such information), at no cost, upon written or oral request to us at the following address:
Immuron
Limited
Level 3
62 Lygon Street
Carlton South, Victoria Australia 3053
Attn:
Chief Financial Officer
You
may also obtain information about us by visiting our website at
www.immuron.com.au
. Information contained in our website
is not part of this prospectus.
You
should rely only on the information contained or incorporated in this prospectus or any supplement. We have not authorized anyone
else to provide you with different information. You should not rely on any other representations. Our affairs may change after
this prospectus or any supplement is distributed. You should not assume that the information in this prospectus or any supplement
is accurate as of any date other than the date on the front of those documents. You should read all information supplementing
this prospectus.
PART
II — INFORMATION NOT REQUIRED IN PROSPECTUS
Item
8. Indemnification of Directors and Officers.
Australian
law.
Australian law provides that a company or a related body corporate of the company may provide
for indemnification of officers and directors, except to the extent of any of the following liabilities incurred as an officer
or director of the company:
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a
liability owed to the company or a related body corporate of the company;
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a
liability for a pecuniary penalty order made under section 1317G or a compensation order under section 961M, 1317H,
1317HA or 1317HB of the Australian Corporations Act 2001;
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a
liability that is owed to someone other than the company or a related body corporate of the company and did not arise out
of conduct in good faith;
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legal
costs incurred in defending an action for a liability incurred as an officer or director of the company if the costs are incurred:
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in
defending or resisting proceedings in which the officer or director is found to have a liability for which they cannot be indemnified
as set out above;
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in
defending or resisting criminal proceedings in which the officer or director is found guilty;
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in
defending or resisting proceedings brought by the Australian Securities & Investments Commission or a liquidator
for a court order if the grounds for making the order are found by the court to have been established (except costs incurred
in responding to actions taken by the Australian Securities & Investments Commission or a liquidator as part of an
investigation before commencing proceedings for a court order); or
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in
connection with proceedings for relief to the officer or a director under the Corporations Act, in which the court denies
the relief.
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Constitution.
Our
Constitution provides, except to the extent prohibited by the law and the Corporations Act, for the indemnification of every person
who is or has been an officer or a director of the company against liability (other than legal costs that are unreasonable) incurred
by that person as an officer or director. This includes any liability incurred by that person in their capacity as an officer
or director of a subsidiary of the company where the company requested that person to accept that appointment.
Indemnification
Agreements.
Pursuant to Deeds of Access, Insurance and Indemnity, the form of which is filed as Exhibit 10.9
to this registration statement, we have agreed to indemnify our directors against certain liabilities and expenses incurred by
such persons in connection with claims made by reason of their being such a director.
SEC
Position.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted
to directors, officers or persons controlling us pursuant to the foregoing provisions, we have been informed that in the opinion
of the SEC such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
Pursuant
to the underwriting agreement for this offering, the form of which is filed as Exhibit 1.1 to this registration statement,
the underwriters will agree to indemnify our directors and officers and persons controlling us, within the meaning of the Securities
Act, against certain liabilities that might arise out of or are based upon certain information furnished to us by any such underwriter.
Item
9. Exhibits and Financial Statement Schedules.
EXHIBIT
INDEX
* Previously filed
Item
9. Undertakings.
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(a)
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The
undersigned Registrant hereby undertakes to provide to the underwriters at the closing specified in the underwriting agreements,
certificates in such denominations and registered in such names as required by the underwriters to permit prompt delivery
to each purchaser.
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(b)
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Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and
is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment
by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with
the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the question of whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
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(c)
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The
undersigned Registrant hereby undertakes that:
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(1)
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For
purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus
filed as part of this Registration Statement in reliance upon Rule 430A and contained in a form of prospectus filed by the
Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
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(2)
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For
the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form
of prospectus shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form F-3 and has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in United States of America, on January 14, 2019.
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IMMURON LIMITED
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By:
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/s/ Gary S. Jacob
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Gary S. Jacob,
Chief Executive Officer
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POWER
OF ATTORNEY
Each
person whose signature appears below does hereby constitute and appoint Gary Jacob and Phillip Hains and each of them singly (with
full power to act alone), as his true and lawful attorneys-in-fact and agents, each with full power of substitution and re-substitution,
for him and in his name, place and stead, in any and all capacities, in connection with this registration statement, including
to sign and file in the name and on behalf of the undersigned as director or officer of the registrant, any and all amendments
and supplements (and any and all prospectus supplements, stickers and post-effective amendments) to this registration statement
with all exhibits thereto, and sign any registration statement for the same offering covered by this registration statement that
is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and all post-effective
amendments thereto and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities
and Exchange Commission, and any applicable securities exchange, securities self-regulatory body or other regulatory entity, granting
unto said attorneys-in-fact and agents, and each of them (with full power to act alone) full power and authority to do and perform
each and every act and thing requisite and necessary to be done in connection therewith and in and about the premises, as fully
to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, or any of them, or their or his substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities
and on the dates indicated.
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Signature
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Title
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Date
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/s/
Roger Aston
Name:
Roger Aston
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Non-Executive Chairman
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January 14, 2019
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/s/
Gary Jacob
Name:
Gary Jacob
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Chief Executive Officer
(principal executive officer)
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January 14, 2019
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/s/
Jerry Kanellos
Name:
Jerry Kanellos
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Chief Operating Officer
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January 14, 2019
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/s/
Phillip Hains
Name:
Phillip Hains
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Chief Financial Officer
and Secretary
(principal financial officer and principal accounting officer)
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January 14, 2019
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/s/
Stephen Anastasiou
Name:
Stephen Anastasiou
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Director
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January 14, 2019
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/s/
Daniel Pollock
Name:
Daniel Pollock
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Director
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January 14, 2019
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/s/
Peter Anastasiou
Name:
Peter Anastasiou
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Executive Vice Chairman
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January 14, 2019
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/s/
Richard J. Berman
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Director
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January 14, 2019
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Name: Richard J. Berman
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/s/
Ravi Savariryan
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Director
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January 14, 2019
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Name: Ravi Savariryan
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SIGNATURE
OF AUTHORIZED REPRESENTATIVE IN THE UNITED STATES
Pursuant
to the Securities Act of 1933, as amended, the undersigned, the duly authorized representative in the United States of Immuron
Limited, has signed this registration statement or amendment thereto in Newark, Delaware on January 14, 2019.
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Authorized U.S. Representative
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By:
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/s/ Donald
J. Puglisi
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Managing Director
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Puglisi & Associates
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