Thus, Ms. Baran, who testified on behalf of the appellants, stated that the acquiring company demanded, as part of the transaction, that Kahane personally undertake not to compete with the acquiring company, and that the issue of non-competition on Kahane's part was an essential condition for the transaction as far as the acquiring company was concerned. The District Court, in its judgment, noted that Ms. Baran, who was part of the M&A team at the acquiring company, confirmed in her interrogation that the calculation of the split of the consideration was made by a team of which she was not a member, and therefore she is not a relevant witness in this matter. In my view, although Ms. Baran is not the relevant witness in the matter Calculating how the consideration will be splitThus, her testimony is indeed relevant to the question Whose initiative was there to split the agreements?. This is because both from Ms. Baran's affidavit and from her interrogation it emerges that although she has no personal knowledge as to the manner in which the considerations were calculated, she was a central factor in the negotiations, and therefore she is able to shed light on the question of who initiated Kahane's undertaking in the non-compete agreement. In this context, Ms. Baran stated that a negotiation meeting was held on February 26,2014, in which the only people who negotiated on behalf of the acquiring company were Mr. Bertelain and she, and she also confirmed in her interrogation that apart from this meeting, there were no other negotiation meetings in which she was not present. Therefore, I am of the opinion that Ms. Baran is a relevant witness in the matter of the question of who initiated the splitting of the agreements. In relation to this, Ms. Baran testified that it was the purchasing company that demanded that Kahane enter into a non-compete agreement as a condition for the entire transaction, and in my view, real weight should be given to this testimony.
At the same time, the District Court attributed to the appellants' duty the fact that they did not bring Mr. Bartline, with whom the negotiations were conducted, to testify, and who may have been able to shed light on the question of who initiated the splitting of the agreements. In this regard, the appellants claim that the court ignored the explanation provided by Kahane in his affidavit that Mr. Bartline was not brought to testify because he was fired from the acquiring company and by virtue of an agreement with it he was prevented from providing information about it. The respondent did not address this argument in his arguments. In this context, it should be added that Mr. Bartline is not a resident of Israel and therefore there is difficulty in compelling him to testify (see: Civil Appeal Authority 7998/18 Cohen N' Israel Electric Company Ltd."From, paragraphs 15-21 and the references there (5.3.2019)). Therefore, it seems that on this point the appellants are right - Since Kahane's explanation in his affidavit was not contradicted, I am of the opinion that there was no room to attribute to the appellants' duty not to bring Mr. Bartlein to testify.