Herbert L. Whitehead and Jennifer L. Whitehead - Page 28




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          vation of Mr. Smith at trial, including our observation of his              
          demeanor, we did not find him to be credible.  We also found his            
          testimony to be conclusory in certain material respects and                 
          irrelevant in certain other material respects.                              
               With respect to the testimony of Essie Whitehead, we found             
          her testimony to be inconsistent with certain of the parties’               
          stipulations of fact in this case.                                          
               Documentary Evidence                                                   
               The record contains a number of documents on which petition-           
          ers rely to establish their positions with respect to the issues            
          that remain in this case.  With respect to the constructive                 
          dividend issue, petitioners rely on, inter alia, copies of three            
          Burien Nissan stock certificates, i.e., stock certificates 4, 6,            
          and 9, which we found to be incomplete and questionable in                  
          certain material respects.  We found those copies to be incom-              
          plete in that there was no legend and no endorsement on the back            
          side of each of them, as required by the May 25, 1990 stock                 
          purchase agreement and the September 1, 1990 stockholders’                  
          agreement, respectively.  We found the copies of the three Burien           
          Nissan stock certificates in question to be questionable in that            
          the back side of the copy of stock certificate 9 was completely             
          blank,21 and the back side of each of the two copies of stock               


               21It appears that the back side of stock certificate 9 may             
          not have been copied.                                                       





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