Zeiger claimed in his testimony that despite what he wrote to Nahum, he did not intend to agree or close with him. In support of this, he further claimed that the purchase of equipment from another supplier required the approval of Mualem, Harel's CEO, and therefore he could not "close" with Nahum without such approval (p. 5344, paras. 16-20, pp. 5377, 21-24; Zeiger's claim that he did not even inform Gilad of things that are hidden from his own words, p. 5364, paras. 10-11). These arguments are also inconsistent with the clear statements that Zeiger wrote, several times, in real time, which attest to his agreement, as Nahum also understood. On the legal level, the claim that the approval of another party in the company is required does not detract from Zeiger's personal responsibility for a restrictive arrangement to which he was a party (see and compare: the Nehoshtan case at paragraph 8; the Matzerplas case at paragraph 15) and does not detract from the application of the theory of organs and the responsibility of Harel, even if we assume that this is an alleged deviation from authorization (see paragraph 18 above).
Zeiger sought circumstantial support for his claim that he did not agree to an arrangement with Nahum by acting – so he claims – immediately after the email correspondence ended in order to bring about the splitting of the purchase demand. Zeiger claimed in his testimony that immediately after the end of the correspondence, he (Zeiger) traveled with Gilad to Elta, to meet with Shkedi, and told him that the procurement for the MPR project should be split into two separate transactions, one for X servers and the other for Unix servers, as indeed happened in practice (p. 5364, paras. 7-14, p. 6055, paras. 29-31, p. 6056, paras. 24-27, p. 6057, paras. 3-17). From this, Zeiger sought to conclude that he had not agreed to an arrangement with Nahum. But this is a subdued version. Zeiger did not raise it even by hint in his interrogation of the Authority (see also: p. 6060, paras. 29-30). This is an argument intended to support his version and which should have been raised in the investigation, which took place a very short time (about three months) after the events. In particular, in light of the questions that were asked both in relation to the fact that at the end of the day the procurement was split (P/218, paras. 166-169) and in relation to the actions he took after the end of the correspondence with Nahum (P/218, paras. 632-634). It also appears that the version was not presented to Shkedi at all in his interrogation (and see the accuser's argument, p. 6982, paras. 1-2, which was not contradicted). Therefore, this version of Zeiger should not be accepted. Moreover, even if Zeiger acted at some point with ELTA in order to split the acquisition, this did not indicate that he was not a party to the arrangement with Nahum or that he did not agree to the arrangement. Even if Zeiger thought that splitting the procurement would be more worthwhile for Harel – who would be in an advantageous position to win X servers and receive the full profit from their sale (without sharing with Triple C in accordance with the arrangement – this does not change the conclusion that emerges from the evidence regarding the arrangement that was made in relation to the combined procurement demand, which was on the agenda at the time, and in case it would remain in place (and see Zeiger's testimony that he raised the problem with Shkedi the combined vehicle requirement even when he learned of the demand and Shkedi told him that the project's demand was to a consolidated response, p. 5339, paras. 8-16, which at least raises uncertainty regarding the possibility that Elta will indeed split the procurement).
- In view of the aforementioned rule, the claims that Zeiger did not agree to the arrangement should be rejected. In any event, we should recall that even if Zeiger's internal intention was different from the clear agreement he expressed towards Nahum – and we saw above that at the time Nahum understood that Zeiger agreed and that an agreement had been reached between the parties – apparent consent is sufficient for the offense to crystallize (see paragraph 11 above).
- Triple C and Nahum added in their summaries that no "arrangement" was made between Zeiger and Nahum. Beyond the arguments discussed and rejected above, it was argued that the conduct between Zeiger and Nahum was nothing more than "preliminary investigation", "preliminary examinations", and "preparation" for the purpose of examining the possibility of cooperating in a transaction for combined procurement to the extent that the CBM was carried out (e.g., paragraphs 126(3), 128, 165, 199 of Triple C summaries, see also: para. 771 of Harel's summaries); It was further argued that the parties did not have actual information regarding the content of the procurement and the financial scope, and that therefore there was no element of an "arrangement" that required a "sufficiently detailed" agreement that the parties could act in accordance with (e.g., paragraphs 126(3), 133, 198-201 of Triple C summaries, see also: para. 762 of Harel's summaries); Subsequently, it was argued – similar to the arguments raised by Zeiger and Harel – that no agreement was reached between the parties and that Zeiger did not agree to an arrangement (paras. 202-215 of Triple C summaries, with reference, inter alia, to excerpts from Zeiger's testimony quoted above, as well as to Nahum's words in his interrogation, for example, P/237, para. 774, "I did not close with Zeiger").
The arguments are to be rejected.