Sharewell, Inc. - Page 13




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          that they had at all times intended to include a covenant not to            
          compete from Wagner as part of the buyout, and this testimony is            
          corroborated by a third party, their banker.  That the terms of             
          the Purchase Agreement were the product of mutual mistake is                
          further supported by circumstantial evidence, such as the                   
          insistence on covenants not to compete by a prospective purchaser           
          a few months prior to the transaction at issue and the parties’             
          execution of such a covenant some 12 days after the execution of            
          the Purchase Agreement.  The failure to include the covenant in             
          the first writing evidencing the agreement between petitioner and           
          Wagner, i.e., the Purchase Agreement, is consistent with the                
          informality with which other documentation of the transaction was           
          executed.  For example, the Loan Agreement was executed on                  
          December 12, the Purchase Agreement on December 20, and Wagner’s            
          Certificate of Participation on December 21.  Clearly, the                  
          Certificate of Participation functioned as security for the first           
          two documents, but was not executed until after they were, and              
          neither of the first two was made expressly conditional upon                
          execution of the third.  This pattern continued with respect to             
          the delay in executing the Noncompete Agreement, and we believe             
          merely reflects that the parties to the buyout, and their banker,           
          had had extensive prior dealings and trusted each other.                    
               These facts would constitute mutual mistake supporting the             
          reformation of a written contract under the standards of this               





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