The appellants further claim that the District Court ignored an e-mail sent by Mr. Bartlein to Kahane, from which it can be concluded that the consideration was split at the initiative of the acquiring company. The appellants' argument relates to an e-mail dated September 16,2014, which Mr. Bartline sent to Kahane (which was attached to Kahane's affidavit). In this e-mail, Mr. Bartline addressed the concern raised by Kahane that the non-compete agreement was too broad and might limit him in other business matters. In response to this concern, Mr. Bertelain, on behalf of the acquiring company, clarified that the purpose of the non-competition agreement is to ensure that Kahane will not compete with the acquiring company, and that Kahane is invited to propose an alternative wording that does not restrict him in other business matters, but that can prevent Kahane from competing with the acquiring company. In my view, the appellants are correct that this e-mail contains evidence that the acquiring company demanded a personal, unequivocal undertaking by Kahane not to compete with the acquiring company.
Additional evidence for the answer to the question of who initiated the splitting of the agreements is found in the two letters attached by the respondent on behalf of senior executives of the Thermo-Fisher company that acquired the acquiring company. As stated above, the District Court ruled that from these letters it appears that the splitting of the agreements was done at Kahane's request, and also ruled that these were documents from two different parties in a serious company that presumably would not have taken these official documents out of its hands without checking the reliability of their contents. This angered the appellants, who claimed that there was no reason to receive these letters without an affidavit and without testimony. On the other hand, the respondent argued that this evidence was admissible.
Indeed, the respondent is correct that the above evidence is admissible, since Regulation 10(b) 30Court Regulations (Income Tax Appeals), התשל"T-1978 states that: