However, in practice, in order to effectively prevent competition from those who were engaged in marketing and providing services for the acquiring company on the eve of the engagement, it was not enough to restrict Eisenberg, but it was also required that Kahane, personally, not compete with the acquiring company. This is evident from the affidavit and testimony of Ms. Baran, who emphasized that the acquiring company demanded that Kahane also personally undertake not to compete with it, and that as far as the acquiring company was concerned, this was an essential condition for the entire transaction. This is also evident from the e-mail that Mr. Bertelain sent to Kahane on September 16,2014, in which he clarified that the non-competition agreement was intended to ensure that Kahane, personally, would not compete with the acquiring company. Moreover, this was also explicitly stipulated in the clause G To the preamble to the activity purchase agreement, according to which a fundamental condition and incentive for the acquiring company's willingness to enter into the activity purchase agreement is Kahane's engagement in the non-compete agreement:
"As a condition and material inducement to the willingness of the purchaser to enter into this Agreement, Kahana and the purchaser shall be required to execute and enter into that certain non-compete agreement between Kahana and Purchaser in the form attached hereto as Exhibit D (the "Kahana Non-Compete Agreement"); and Seller shall be required to uphuld its non compete, non solicit and confidentiality undertakings pursuant to Sections 4.8 and 4.9 hereunder."
(Emphasis added - 10:20).
In other words, from the perspective of the acquiring company, it was not enough for Eisenberg not to compete with it, but it was required that Kahane not compete with it as well, and therefore in fact Eisenberg was not in its hands "Provide" itself to the company that acquires the required result, i.e. - effective non-competition, and it was necessary that Kahane, personally, "Will provide" His commitment not to compete.
- I am of the opinion that since Eisenberg and the acquiring company were required to "provide" Kahane as well part of the contractual obligation, it is clear that there was a "real need" (and at least a real need from the perspective of the acquiring company as detailed below) in an agreement in which Kahane, personally, "provides" part of the consideration received by the acquiring company (his agreement not to compete).
To be precise, I do not mean that there was a real need specifically for the non-compete agreement in the format in which it was drafted, but rather that there was a real need for Kahane's consent, personally, not to compete with the acquiring company, in addition to the consent of the Eisenberg company, whether in a separate agreement or in any other way.