Regarding the deletion of clause 3.1.4, I will emphasize at this point that according to Peleg, the clause was fraudulently deleted, since Don did not inform him that he was deleting this clause, but rather presented him with a representation according to which all that has been changed in the agreement is the clause regarding the return of the commission in the event that the offering is not executed. There is substance to this argument. In this regard, in the framework of his affidavit, Don relates to this argument and admits – in practice – that no negotiations were conducted with regard to the deletion of this clause, but according to him, there was no need to negotiate with regard to the deletion of the clause, since this is a clause that remained incorrectly in the wording of the agreement, which was originally intended to serve as an agreement for the provision of finder services, and the commission component was changed, when it was agreed by the parties that the commission would be paid even in the event that there would be an offering. Don further argues that although Fayette drew his attention to the fact that the clause remained in the agreement and that it can be understood as a clause that grants Peleg the right to receive options, in addition to the possibility of converting the commission paid to him into options. However, according to Don, since it was never agreed to grant Peleg additional options in addition to the monetary commission and the right to convert, there was no need to negotiate the deletion of the clause and he deleted it following Feit's note (see paragraphs 46 and 47 of Don's affidavit). Don's words in his affidavit are supported by the correspondence between him and Peleg, from which it emerges – as detailed above – that Don does not inform Peleg regarding the deletion of this clause, but indeed – as claimed by Peleg – presents Peleg with a representation according to which the only clause in which a change has been made is the clause that relates to the return of the commission in the event that the IPO is not carried out (in this regard, see also Don's testimony in the framework of his confirmation of the aforesaid on page 80, lines 6-8). On page 81, lines 2-3 and on page 87, lines 16-19). Can Don's conduct be seen as fraudulent? - It is possible that this is a conclusion that could tarnish Don in a far-reaching way, but at least it can be determined at this stage that the change was made in a way that was hidden from Peleg's eyes.
- As mentioned, Peleg signed the third agreement on the day it was transferred to him by Don and returned to Don. Subsequently, the meeting of the board of directors approved the payment of a commission to the faction, and the commission was even paid (as detailed above in paragraph 19 of the judgment).
- the initial public offering and its documents;
On November 26, 2018, the company sent Peleg a notice (which was attached as Appendix 19 to Don's affidavit) in which Peleg was updated on the progress of the IPO proceedings, as stated in the content of the notice, following a notice sent to investors on November 15, 2018, that the intention was to raise between AUD 10 and AUD 12 million. As part of this announcement, the company informed Peleg that: