In addition, the court emphasized that the consideration paid to Kahane was calculated as an arbitrary rate of 40% of the total payment paid by the acquiring company. This is evident from Kahane's own testimony. The court ruled that this is sufficient to show that the payment to Kahane was not paid according to the true economic value of the non-competition component, but rather for reasons of reducing the tax burden. The court further ruled that the appellants did not even provide a satisfactory explanation as to the manner in which the total amount of consideration was calculated.
Another indication of the authenticity of the non-competition clause, which the District Court discussed in its judgment, is found in the answer to the question of which party to the transaction had an interest in splitting the consideration. In this regard, the District Court ruled that in view of the fact that the payment to Kahane was derived retroactively and arbitrarily from the total consideration paid by the acquiring company, it cannot be said that the split of the consideration was in the interest of the acquiring company.
In this context, the court noted that although Ms. Baran noted in her affidavit that the acquiring company demanded that Kahane himself undertake a non-compete stipulation, separately from Eisenberg, she did not explain why the letter of personal guarantee, which Kahane was obligated to perform as part of the activity purchase agreement, was not sufficient to meet this need. In addition, in this matter as well, the District Court held, as already noted above, that the fact that Mr. Bertelain, who conducted the negotiations on behalf of the acquiring company, was not brought to testify, lies at the door of the appellants. In addition, the District Court ruled that support for the fact that Kahane initiated the split of the consideration can be found in two letters, which the respondent attached, on behalf of senior executives of the company "Thermo-Fischer" which acquired the acquiring company in 2016 (hereinafter: Thermo-Fischer), and that it appears that the split of the consideration was made at Kahane's request. The court emphasized 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 credibility of their contents. The court added that the appellants did not see fit to summon the authors of the following documents to testify"In order to confront them with the aforesaid.