Choate Construction Co. - Page 33

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            5.75 percent of the bonuses was paid to Dudley, Freese, and                                  
            Barrett and 82.75 percent was paid to Choate, which is about in                              
            proportion to their stock ownership.                                                         
                  We disagree.  We think a more likely view of this is that                              
            Choate's sale of his stock in petitioner to Dudley, Freese, and                              
            Barrett reflects Choate's assessment of their contribution to                                
            petitioner.  Likewise, petitioner probably paid them about that                              
            portion of the bonuses because Choate continued to have the same                             
            assessment of them.  We believe Choate set their bonuses based on                            
            his assessment of their work, not based on their stock ownership.                            
                  Choate credibly testified that the bonuses were for services                           
            rendered and were not based on stock ownership.3  He rejected a                              
            plan which Dudley, Freese, and Barrett suggested to him to split                             
            profits based on stock ownership and split the excess equally                                
            four ways after a certain target was achieved.                                               
                  Although Dudley and Freese testified that they believed that                           
            the bonuses were based on stock ownership, they also testified                               

                  3 Choate decided how much stock he would allow Dudley,                                 
            Freese, and Barrett to buy from him.                                                         














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Last modified: May 25, 2011