Even in this notice – which indicates the negotiations that were conducted between the parties – there is no mention of the plaintiff's entitlement to a financial commission of 4.5% and in addition to that to options at the same rate. However, on the face of it, the proposals that are on the agenda are for a total commission of about 4% at most – nothing more. Moreover, since, as stated, Don did not agree to the proposal as embodied in the document of April 2, 2018, Don did not refer to the wording of this clause at all, but rather proposed three alternatives of his own. Support for this assertion can be found in Peleg's testimony, from line 17 on page 165 to line 2 on page 166, in which Peleg confirmed that none of the options offered by Don included both a monetary commission and a separate component of options in addition to the monetary commission, and certainly not a monetary consideration of 4.5% of the value of the offering, and in addition, options at the rate of 4.5%. Peleg further confirmed in his cross-examination that insofar as part of the offer included options in addition to the financial commission in the conversion to shares, it would have been expected that the offer would include a clause stating this when he replied: "Apparently yes, right. In the proposal, he did not offer it." (See p. 174, line 17).
- In response, in an e-mail message dated May 22, 2018, Peleg announced that he was accepting the third option in the changes. An examination of the proposed changes shows that the amount of the commission in the third offer was set at $230,000 (instead of $200,000 as written in Don's proposal) and there are changes as to the manner in which the option to purchase shares will be exercised. As for this notice, which was sent by Peleg, Peleg himself confirmed in the framework of his cross-examination that the offer has only two components of a commission – the sum of $230,000, most of which the plaintiff will invest back in the company by purchasing shares on the same day at a discount of 20% and another $230,000 that will be received as consulting fees in 2018 and which the company will also convert into shares (see page 172, lines 16-19, and yes, on page 173, line 4). Peleg further confirmed that apart from these two components, there is no reference in this notice to an additional consideration component of options (page 173, line 7).
- As can be seen from the continuation of the chain of events – the parties agreed on the last proposal – as expressed in a statement from Peleg to Davon dated May 22, 2018. Subsequently, clause 3.1.2 was added to the Agreement, which embodies this consent. There is no dispute that clause 3.1.2 was added to the draft agreement as sent by Peleg on April 1, 2018 – a draft to which Peleg had already added clause 3.1.3, but I am of the opinion that the passage, as detailed, clearly shows that the intention of the parties was limited to the fee as detailed in clause 3.1.2 and that this clause was intended to replace the mechanism written in clause 3.1.4 – about which there was no agreement as aforesaid and which Peleg should have deleted. In light of the addition of clause 3.1.2.
Subsequently, the first agreement was signed, which includes both clause 3.1.2 – in which the commission in the event of an IPO was regulated in detail, including the possibility of converting this commission into shares, and clause 3.1.4, which, in my view, was left in the agreement in error. I will note that this clause was also included in the second agreement, in which the commission was reduced, but I do not find it important to attribute importance, given that the second agreement was based on the first agreement, and therefore it is clear that insofar as the parties did not consider that clause 3.1.4 was not removed from the first agreement, they did not even notice it in the second agreement, whose sole purpose was to make a change in clause 3.1.2.
- Support for the fact that the parties did not negotiate and negotiate on the plaintiff's entitlement to receive a commission that includes entitlement to options to purchase the company's shares, in addition to the financial commission to which she was entitled, and all the more so they did not agree on the granting of such a commission, can also be found in the plaintiff's further conduct. This is particularly true in the plaintiff's failure to raise any demand for the options later on, and since the plaintiff in fact first raised a demand for such options, only in her demand letter from February 2020. In general, the plaintiff refrained from commenting on the notice she received from the company on November 16, 2018, which there is no dispute that Peleg signed – in which the commission to which the plaintiff is entitled under the CLA agreement is detailed and does not specify her entitlement to receive options to purchase the company's shares, as claimed by her. The plaintiff also refrained (through Peleg) from raising any claim regarding the company's prospectus, which was published on December 20, 2018, and which is indisputable and does not mention the plaintiff's entitlement to receive options to purchase shares, in addition to her right to convert into shares in the sum of $330,000 according to the CLA agreement. As part of his cross-examination, Peleg confirmed that he had received the prospectus before the IPO. Peleg also confirmed correspondence between him and an employee of Ananda (submitted and marked as 3), in which Peleg also confirmed that he had received the prospectus (see his testimony on page 179, lines 9-11), but according to Peleg, he did not read the prospectus (see his testimony on page 177, lines 17-22). On Peleg Eksha's latest claim – is it true? Is it conceivable that someone who is hired for the purpose of providing consulting services for an IPO and receives a total fee of $480,000 for this purpose, and yes, who has lent the company a sum of $100,000, will not read the company's prospectus before its IPO?! In addition, Peleg confirmed a correspondence between him and an employee of the company named Michael dated November 12, 2018 (filed and marked as /4) - two months before the initial offering, in which it was only an investment in the amount of $330,000 and there was no claim or demand regarding options.
Peleg further testified – and in this too strengthened the determination that the plaintiff did not raise any demand regarding her eligibility for options, prior to her letter of application from February 2020 – that there was no dispute regarding the options, since there was no discussion about it at all (see page 187, lines 5-6), i.e., confirmed that there was no discussion regarding the receipt of the options, and yes, confirmed that in the conversation of April 10, 2019, there was no discussion about the options. Additional support for this omission of the plaintiff can be found in the fact that even in the correspondence dated July 31, 2019, in which there was a discussion about the distribution of the payments, there was no discussion regarding options, and not even in the correspondence of September 8, 2019. Moreover, in the course of his cross-examination and as a summary of these omissions, Peleg confirmed (on page 183 of the transcript) that he had not previously approached the IPO with any demand regarding the options that he claimed the plaintiff was entitled to in addition to the financial commission (ibid., line 21) and also reiterated (on page 185, line 10) that there was no email or message regarding these options, at all times until his attorney contacted him in the warning letter.