The Purchase Amount shall be automatically converted into 2,878,945 ordinary Shares, and the Company shall issue and akkot to you such Ordinary Shares, at a price per share or AUD 0.157, reflecting a preice per share equal to 80% of the price per share in the IPO"
It appears from the aforesaid that Peleg was informed that subject to the realization of the offering, his investment would be converted to 2,878,945 shares at a price of AUD 0.157 per share, which reflects 80% of the share price in the IPO (which was previously stated in this letter at AUD 0.20 per share) – i.e., according to this letter, Peleg's investment is in the amount of $330,000 (an amount obtained from multiplying the share value by the number of shares). This announcement does not mention any right to receive additional options to purchase the company's shares in an amount that constitutes the full financial commission, which Peleg claims amounts to $450,000. I will note that Peleg was asked to sign the document and return it signed, and there is no dispute that he did so.
- On December 20, 2018, the Company published a prospectus in advance of the IPO, this prospectus included details about the options that the Company had allocated or undertook to allocate (the prospectus was attached as Appendix 20 to Don's affidavit) - there is no dispute that even in this prospectus there is no detail regarding Peleg's right to receive options to purchase shares, in addition to the financial commission (which was converted into shares). There is also no dispute that this prospectus was also forwarded to Peleg (see correspondence that was submitted and marked as P/3 and Peleg's testimony on page 179, lines 9-11).
- On January 29, 2019, the company's public offering was successfully completed on the Australian Stock Exchange. As part of this offering, shares were allocated to Peleg, as mentioned in the notice of November 26, 2018 (as detailed in section 25 above). There is also no dispute – and at least no evidence was presented to me indicating otherwise – that Peleg did not raise any demand regarding his right to receive additional options to purchase the Company's shares based on the provisions of clause 3.1.3 of the first agreement or based on clause 3.1.4 of the second agreement.
I should note that prior to the IPO, there was a WhatsApp correspondence between Don and Peleg, in which Peleg wrote to Don on January 22, 2019: "We must lift you to your success" and in response Don wrote to Peleg: "Our success." (The correspondence was attached as Appendix 30 to Peleg's affidavit).
- the second offering;
In light of the success of the first offering, the company decided to examine the possibility of raising money through an additional offering. This IPO took place in May 2019. In the same offering, the company raised more than AUD 30 million, at a price of 80 cents per share (compared to 20 cents in the initial offering). The second dispute between the parties focuses on the question of whether Peleg is entitled to a commission in respect of this offering. Thus, Peleg argues that in practice the second offering involved Armada, through which the relationship was created and therefore he is entitled to a commission in accordance with the provisions of clause 3.1 of the agreement. The company and Dunn, on the other hand, claim that the IPO was led by the Australian company Morgans Corporate Limited (hereinafter: "Morgan Company"), which has no connection to Armada or to Patterson. Therefore, it was argued that Morgan is not a verified contact and Peleg is not entitled to any commission in respect of the second offering. In support of this claim, the company attached a copy of the notice to the public regarding the second offering, which indicates that Morgan led this offering (attached as Appendix 21 to Don's affidavit).
- the demand to pay the second half of the commission – and the quadruple meeting of September 24, 2019;
As for the payment of the second half of the commission, which appears in the first agreement but was deducted from the second agreement, Don claimed in his affidavit that the demand to pay the second half of the commission was raised by Peleg months after the second offering; that Peleg was not entitled to the payment of the second half (in view of the second agreement); and that he agreed to Solomon in the end. Peleg, on the other hand, claims that he raised the demand to pay the second half of the commission already after the initial offering. After examining the arguments, I found that Peleg's version was preferred in this regard – and accordingly the demand was raised as early as April 2019, and moreover, on the face of it, the very entitlement to payment of the second half of the commission was not in dispute between the parties in real time. This is because Don's claim is inconsistent with the factual body supported by the documents.