Securities Registration: Employee Benefit Plan (s-8)
July 27 2020 - 6:23AM
Edgar (US Regulatory)
As filed with the Securities and Exchange
Commission on July 27, 2020
Registration No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Mesoblast
Limited
(Exact name of Registrant as specified
in its charter)
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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Mesoblast Limited
55 Collins Street, Level 38
Melbourne, VIC 3000
Australia
Telephone: +61 3 9639 6036
(Address of principal executive offices,
including zip code)
Employee Share Option Plan
(Full title of the plan)
Mesoblast Inc.
505 Fifth Avenue, Third Floor
New York, NY 10017
Telephone: (212) 880-2060
(Name, address and telephone number,
including area code, of agent for service)
Copies to:
Andrew S. Reilly
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Peter T. Howard
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Partner
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General Counsel and Corporate Executive
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Rimôn Law
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Mesoblast Limited
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Level 10, 20 Martin Place
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55 Collins Street, Level 38
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Sydney, NSW 2000
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Melbourne, VIC 3000
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Australia
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Australia
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Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated
filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act (Check
one).
Large accelerated filer
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☐
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Accelerated filer
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☒
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Non-accelerated filer
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☐
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Smaller reporting company
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☐
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Emerging growth company
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☐
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If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards
provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
CALCULATION OF REGISTRATION FEE
Title
of Securities to be Registered
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Amount to be
Registered (2)
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Proposed
Maximum
Offering Price
Per Share (3)
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Proposed
Maximum
Aggregate
Offering Price
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Amount of
Registration
Fee
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Ordinary Shares (1)
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15,000,000
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US$
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2.49
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US$
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37,350,000.00
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US$
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4,848.03
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(1)
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Ordinary
shares, without par value (the “Ordinary Shares”), of Mesoblast Limited (the “Registrant”) being registered
relate to the Registrant’s Employee Share Option Plan (the “Plan”). These Ordinary Shares may be represented
by the Registrant’s American Depositary Shares (“ADSs”), each of which represents five Ordinary Shares. ADSs,
evidenced by American Depositary Receipts (“ADRs”), each representing five Ordinary Shares of the Registrant, have
been registered under a separate registration statement on Form F-6 (File No. 333-207378).
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(2)
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Represents
the maximum number of Ordinary Shares underlying the options that the Registrant expects to be issued pursuant to the Plan. The
Plan does not include a limit on the number of options that may be issued pursuant to the Plan. Pursuant to Rule 416(a) under
the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement covers an indeterminable
number of additional securities as may be offered or issued as a result of the anti-dilution provisions of the Plan.
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(3)
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Estimated
in accordance with Rule 457(h) and Rule 457(c) solely for the purpose of calculating the registration fee on the basis of US$12.45,
the average of the high and low prices for the Registrant’s ADSs as reported on the NASDAQ Global Select Market on July
23, 2020, divided by five (the Ordinary Share-to-ADS ratio).
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This Registration Statement shall become effective immediately
upon filing as provided in Rule 462 under the Securities Act.
EXPLANATORY NOTE
REGISTRATION OF ADDITIONAL SECURITIES
This Registration Statement on Form S-8 (the “Registration
Statement”) registers an additional 15,000,000 Ordinary Shares of the Registrant that may be offered and sold under the Plan.
This Registration Statement relates solely to the registration of additional securities of the same class as other securities for
which one or more other registration statements filed on this form relating to the same employee share option plan are effective.
Pursuant to General Instruction E to Form S-8, the contents of the Registrant’s previously filed registration statement on
Form S-8 relating to the Plan (File No. 333-220988), filed with the Securities and Exchange Commission on October 17, 2017, including
any amendments thereto or filings incorporated therein, are hereby incorporated by reference herein to the extent not otherwise
amended or superseded by the contents hereof.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
The documents containing the information specified in Item 1
and Item 2 of Part I of Form S-8 are not filed with this Registration Statement in accordance with the provisions of Rule
428 under the Securities Act of 1933, as amended (the “Securities Act”) and the introductory note to Part I of Form
S-8. The documents containing the information specified in Part I of Form S-8 will be delivered to the participants in the equity
benefit plans covered by this Registration Statement as specified by Rule 428(b)(1) under the Securities Act. These documents and
the documents incorporated by reference pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute
the prospectus as required by Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant hereby incorporates by reference into this Registration
Statement the following documents previously filed with the Securities
and Exchange Commission (the “Commission”):
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the
Registrant’s Annual Report on Form 20-F for the year ended June 30, 2019, as filed with the Commission on September
9, 2019;
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the
Registrant’s all other reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (the
“Exchange Act”), since June 30, 2019 (other than information deemed to have been “furnished” rather
than “filed” in accordance with the SEC’s rules); and
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the
description of the Registrant’s Ordinary Shares contained in the Registrant’s Registration Statement on Form 8-A (File
No. 001-37626) filed with the Commission on November 9, 2015, pursuant to Section 12(b) of the Exchange Act, which
incorporates by reference the description of the Registrant’s Ordinary Shares set forth in the Registrant’s Registration
Statement on Form F-1 (Registration No. 333-207719), as amended, originally filed with the Commission on November 2,
2015, including any amendment or report filed for the purpose of updating such description.
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All
documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act on or after the date of
this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement that indicates
that all securities offered have been sold or that deregisters all securities then remaining unsold shall be deemed to be incorporated
by reference in this Registration Statement and to be part hereof from the date of filing of such documents; provided,
however, that documents or information deemed to have been furnished and not filed in accordance with the rules of the
Commission shall not be deemed incorporated by reference into this Registration Statement. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in any subsequently filed document which also is deemed
to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4.
Description of Securities.
Not
applicable.
Item 5.
Interests of Named Experts and Counsel.
Not
applicable.
Item 6.
Indemnification of Directors and Officers.
Except
as set forth below, there is no provision in any contract, arrangement or statute under which any director, secretary or other
officer of the Registrant is insured or indemnified in any manner against any liability which he/she may incur in his/her capacity
as such.
Under
our Constitution, to the extent permitted by the Australian Corporations Act 2001 (Cth) (“Corporations Act”) we may
indemnify or insure any person who is or has been our or any of our subsidiaries’ officer, which indemnity or insurance
policy may be in such terms as the directors approve and, in particular, may apply to acts or omissions prior to or after the
time of entering into the indemnity or policy. Under Australian law, an “officer” includes any director.
We
have entered into Deeds of Indemnity, Insurance and Access (“Indemnity Deeds”) with each director.
Under
the Indemnity Deeds, we have agreed to indemnify (to the maximum extent permitted under Australian law and subject to certain
specified exceptions) each director and certain of our officers against all liabilities incurred in their capacity as our or our
subsidiaries’ director or officer and any and all legal costs incurred by such director or officer in defending an action
for a liability incurred in their capacity as our or our subsidiaries’ director or officer. The Indemnity Deeds provide
that the indemnities are unlimited as to amount, continuous and irrevocable.
Separately,
we have obtained insurance for each of our directors, as required by the Indemnity Deeds, and each of our officers.
There
are certain provisions of the Australian Corporations Act that restrict the Registrant from indemnifying directors and certain
officers in certain circumstances. These are described below.
Australian
Law
Section 199A
of the Australian Corporations Act provides that a company or a related body corporate of a company must not indemnify a person
(whether by agreement or by making a payment and whether directly or through an interposed entity) against any of the following
liabilities incurred as an officer or auditor of the company:
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a
liability owed to the company or a related body corporate; or
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a
liability for a pecuniary penalty order or compensation order under specified provisions of the Australian Corporations Act; or
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a
liability that is owed to someone other than the company or a related body corporate and did not arise out of conduct in good
faith; or
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legal
costs incurred in defending an action for a liability incurred as an officer or auditor of the company if the costs are incurred:
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in
defending or resisting proceedings in which the person is found to have a liability for which they could not be indemnified as
set out above; or
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in
defending or resisting criminal proceedings in which the person is found guilty; or
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in
defending or resisting proceedings brought by the Australian Securities and Investments Commission (ASIC) or a liquidator for
a court order if the grounds for making the order are found by the court to have been established (this does not apply to costs
incurred in responding to actions taken by ASIC or a liquidator as part of an investigation before commencing proceedings for
the court order); or
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in
connection with proceedings for relief to the person under the Australian Corporations Act in which the court denies the relief.
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Section 199B
of the Australian Corporations Act provides that a company or a related body corporate must not pay, or agree to pay, a premium
for a contract insuring a person who is or has been an officer or auditor of the company against a liability (other than one for
legal costs) arising out of:
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conduct
involving a willful breach of duty in relation to the company; or
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a
contravention of the director, secretary, officer, or employee’s duties under the Australian Corporations Act not to improperly
use their position or make improper use of information obtained as a director, secretary, officer, or employee to gain an advantage
for themselves or someone else or cause detriment to the company.
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For
the purpose of Australian law as set out above, an “officer” of a company includes (but is not limited to):
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a
director or secretary;
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a
person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the company;
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a
person who has the capacity to significantly affect the company’s financial standing; and
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a
person in accordance with whose instructions or wishes the directors of the company are accustomed to act (excluding advice given
by the person in the proper performance of functions attaching to the person’s professional capacity or their business relationship
with the directors of the company).
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Item 7.
Exemption from Registration Claimed.
Not
applicable.
Item 8.
Exhibits
Item 9.
Undertakings.
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A.
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The
undersigned Registrant hereby undertakes:
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(1)
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To
file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
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(i)
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To
include any prospectus required by Section 10(a)(3) of the Securities Act;
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(ii)
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To reflect in the
prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in
the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum
aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration
statement; and
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(iii)
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To include any material
information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material
change to such information in the Registration Statement.
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Provided,
however, that paragraphs (A)(1)(i) and (A)(1)(ii) do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant
to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.
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(2)
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That,
for the purpose of determining any liability under the Securities Act, each such post-effective amendment 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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(3)
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To
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at
the termination of the offering.
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B.
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The
undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing
of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated
by reference in the Registration Statement 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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C.
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Insofar
as indemnification for liabilities arising under the Securities Act 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
Commission such indemnification is against public policy as expressed in the Securities 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 whether such indemnification by it is against public policy as expressed in the Securities Act and will
be governed by the final adjudication of such issue.
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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 S-8 and has duly caused this Registration Statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in Melbourne, Australia on the 27th day of July, 2020.
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Mesoblast Limited
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By:
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/s/
Silviu Itescu
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Silviu Itescu
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Chief Executive
Officer and Director
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POWER
OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Joseph Swedish, Dr. Silviu
Itescu, and Peter Howard, and each of them, as his true and lawful attorney in fact and agent with full power of substitution,
for him in any and all capacities, to sign any and all amendments to this Registration Statement on Form S-8 (including post-effective
amendments), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities
and Exchange Commission, granting unto said attorney in fact, proxy and agent full power and authority to do and perform each
and every act and thing requisite and necessary to be done in connection therewith, as fully for all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said attorney in fact, proxy and agent, or his substitute,
may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement on Form S-8 has been signed by the following persons
in the capacities and on the dates indicated.
Signature
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Title
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Date
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/s/ Joseph Swedish
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Chairman of the Board
of Directors
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July 27, 2020
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Joseph Swedish
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/s/ Silviu Itescu
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Managing Director
and Chief Executive Officer
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July 27, 2020
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Silviu Itescu
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(principal executive
officer)
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/s/ Josh Muntner
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Chief Financial Officer
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July 27, 2020
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Josh Muntner
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(principal financial
and accounting officer)
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/s/ William Burns
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Director
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July 27, 2020
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William Burns
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/s/ Donal O’Dwyer
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Director
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July 27, 2020
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Donal O’Dwyer
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/s/ Eric Rose
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Director
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July 27, 2020
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Eric Rose
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/s/ Shawn Cline Tomasello
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Director
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July 27, 2020
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Shawn Cline Tomasello
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/s/ Michael Spooner
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Director
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July 27, 2020
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Michael Spooner
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SIGNATURE
OF AUTHORIZED REPRESENTATIVE OF THE REGISTRANT
Under
the Securities Act of 1933, the undersigned, the duly authorized representative in the United States of Mesoblast Limited has
signed this Registration Statement in New York, New York, on July 27, 2020.
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Authorized U.S. Representative
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Mesoblast Inc.
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By:
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/s/
Josh Muntner
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Name: Josh Muntner
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Title: Chief
Financial Officer
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