Following all this, Peleg wrote to Don on September 25, 2019 (Appendix 37 to Peleg's affidavit, Appendix 24 to Don's affidavit):
"Changes the agreement that there is no conversion in the clause in question so that we can move forward, the sender, sign and sign and transfer"
There is no dispute that in the agreement that was sent by Peleg to discuss for signature, clause 3.1.2 was changed and the wording that was written in it is as follows:
- In case public registration (IPO)
- The finder will be entitled to 4.5% of the bridge loan and IPO transaction in 2 parts as follows:
- The finder will entitled to 2.25% right after the bridge loan will be deposited in full the finder will be obligate to invest back at lest 1.75% the same day to the bridge loan itself (same terms as the other investors meaning 20% discount). In case IPO will not occur, the company will buy back the stocks generated from the bridge loan the finder invested and the finder will reimburse the company with 1.75%. In case the raise will be higher it be reflected in the number accordingly.
- The finder will be entitled to additional 2.25% which will be paid from consultancy services during Q3 and Q4 2019. Final calculation base on the actual money raised will be done on this part.
Clause 3.1.4 is also included in this version of the agreement.
Subsequently, on September 25, 2019, the fourth agreement was signed.
Already at this stage, I find it necessary to emphasize that there is no dispute that Peleg (similar to the discussion before the signing of the third agreement) did not update Don regarding the addition of clause 3.1.4 to the wording of the amended agreement. According to Peleg, he was not required to do so, since the parties' agreement revolved around the second half of the commission, which did not exist in the second and third agreements, but only in the first agreement. According to Peleg, in accordance with this, the agreement to pay the second half of the commission constitutes an agreement to return to the first agreement, and therefore, according to him, Don agreed that the change would be made on top of the first agreement, which also includes clause 3.1.4. Thus, on page 220, Peleg testified in this regard: "I did not edit the third agreement, I extended the first agreement and changed the line and did not add 3.14, it existed... I don't need to draw his attention because that's what we talked about, to change it on the basis of the first agreement. It's in the texts as well."