eTaZY Be S © we 2a awa u 2 B 14 15 16 7 18 19 20 a 22 23 24 25 26 rte 28 F024 e © 12024 Jon H. Freis, Esq. [CSB # 204708) LAW OFFICES OF JON H. FREIS ILED 120 El Camino Drive, Suite 204 suger ‘Court of California Beverly Hills, CA 90312 UM as Anreles Telephone: (310) 276-1218 DEC 09 2014 Facsimile: (310) 276-1961 e-mail: jon@jhflaw.net ‘Shei R. Attomeys for Plaintiff mle ga one MAX BAER PRODUCTIONS, LTD. 0-20 Vou C Boanzice SUPERIOR COURT OF THE STATE OF CALIFORNIA. COUNTY OF LOS ANGELES caseno; BC566214 (Unlimited Civil Case) COMPLAINT FOR DAMAGES FOR: MAX BAER PRODUCTIONS, LTD., a California Corporation Plaintiff, 1. BREACH OF CONTRACT; 2. TORTIOUS INTERFERENCE CBS BROADCASTING, INC., a New York ) WITH PROSPECTIVE Corporation; DOES | through 30, inclusive, ) ECONOMIC ADVANTAGE; ) vs. ) 2 ) ) ) ) ) ) Defendants. 3. CONSTRUCTIVE FRAUD; ) ) 4. DECLARATORY RELIEF COMES NOW Plaintiff MAX BAER PRODUCTIONS, LTD., for causes of action against Defendants, CBS BROADCASTING, INC., a New York Corporation; DOES 1 through 30, inclusive, and each of them, alleges as follows: GENERAL ALLEGATIONS Eunanava BBAr3034 Bid 3104 Basaron pee 119 a HgBD Boos 1. Atall times material to the allegations contained in this Comysi S PRODUCTIONS, LTD. was and is a corporation duly formed and in goo vizesedh aor she a SH br 60%: eapeape California and doing business in Los Angeles County. 2. Atal times material to the allegations contained in this Complaint, Defeiglant CBS 05 ‘York and gu BROADCASTING, INC., was and is a Corporation formed under the laws of the State of 88 le Wa 00"0: 09°: ona ors -l ‘COMPLAINT FOR DAMAGESconducts business in the State of California and County of Los Angeles. 3. That the true names or capacities, whether individual, corporate, associate or otherwise of Defendant DOES 1 through 30, inclusive, are unknown to Plaintiff, who therefore sues said Defendants by such fictitious names. Plaintiff is informed and believes and thereon alleges that each of the Defendant designated herein as a DOE is legally responsible in some manner for the events and happenings herein referred to, and legally caused injury and damages proximately thereby to Plaintiff asherein alleged., and/or received property from Plaintiff that was not paid forby the named Defendant. 4, That at all times herein mentioned, each of the Defendant was the co-conspirator, agent, partner, and employee of each of the remaining Defendant, and was at al times acting within the purpose and scope of said conspiracy, agency and employment, and each defendant has ratified and approved the acts of the remaining Defendant, ‘THE BEVERLY HILLBILLIES SERIES AND THE LICENSING AGREEMENT 5. TheBeverly Hillbillies (the“Series”) is an American sitcom originally broadcast for ninel seasons on CBS from September 26, 1962 to March 23, 1971, starring Buddy Ebsen, Irene Ryan, Donna Douglas, and Max Baer, Jr. (a principal of Plaintiff). The Series is about a poor backwoods family transplanted to Beverly Hills, California, after striking oil on their land. ‘The Series paved the way for later culture-conflict programs such as Greenacres, Petticoat Junction, Gomer Pyle and Hee-Haw. Panned by many entertainment critics of its time, it quickly became a tremendous ratings success for ‘most of its nine-year run on CBS. 6. The Series is ranked among the top twenty most watched programs on television for eight of its nine seasons, twice ranking as the number one series of the year, with eight of the top 20 shows ofall time and the highest ranking half-hour episode in the history of television. The ongoing popularity of the Series spawned a 1993 film remake by 20th Century Fox. 7. Upon information and belief, Defendant CBS BROADCASTING, Inc. was and currently is the owner of the Series and was the owner at all relevant times. Plaintiff's principal Max Baer, Jr. was one of the stars on the Series playing Jethro Bodine. 8. On January 8, 1991, Plaintiff and Defendants entered into a written agreement, a true and 2. COMPLAINT FOR DAMAGES12 13 14 15 16 7 18 19 20 21 2 2B 24 25 26 rte 28 correct copy of which is attached hereto as Exhibit “A” and incorporated herein by this reference, for Defendants to license to Plaintiff certain rights to the Series (the “Licensing Agreement”). Pursuant to the Licensing Agreement, Defendants assigned, transferred and conveyed to Plaintiff, throughout the world, whatever rights Defendants had to utilize the title of the Series, the names and/or likeness of the characters created for and used in the Series, the names and/or likeneness of the performers as they appeared in the Series, and any other elements created for and used in the Series (collectively referred to as the “Series Elements”). Under the Licensing Agreement, the right to use the Series Elements was conveyed to Plaintiff for the following uses: i) operation of one or more lawfilly licensed and authorized casinos, including the operation of a hotel adjacent to or as part of any such gambling casinos; ii) operation of one or more restaurants; ii) sale of food and beverage items; iv) operation of a hotel which is not part of a gambling casino; and v) operation of a recreational vehicle park, which may or may not be located adjacent to a casino, In 2000 and 2011, the Parties amended the Licensing Agreement to clarify Plaintiff's licensing rights. True and correct copies of the amendments to the Licensing Agreement are attached hereto as Exhibit “B” and incorporated herein by this reference. 9. The Licensing Agreement provided for a seven year “Commencement Period” for Plaintiff to commence use and exploitation of the rights, otherwise the rights would revert back to CBS. The Licensing Agreement also provided for an extension of the Commencement Period for an additional seven year period by payment of certain monies to CBS. Within the initial Commencement Period, Plaintiff duly paid to CBS the sums required to extend the Commencement Period for the additional seven years. During the extended. Commencement Period, Plaintiff duly commenced the use and exploitation of the rights assigned by opening a casino in September of 2004. As a result of Plaintiff's timely commencement of the use and exploitation of the rights, all of the rights assigned to Plaintiff are ‘exclusive and shall be and are in perpetuity. With the rights assigned being worth millions of dollars to Plaintiff, Plaintiff has expended in excess ofa million dollars to develop its use of the Series Elements in connection with proposed restaurants across the country, casinos, slot machines, and merchandising. ‘As a result of CBS’s breaches of the Licensing Agreement as hereinafter alleged, Plaintiff has suffered a substantial diminution in the value of its rights because the title has been clouded. 10. Inconnection with Plaintiff's actual exploitation and use of the Series Elements, Plaintiff 3. ‘COMPLAINT FOR DAMAGESzt ® e has duly paid to CBS all licensing fees required under the Licensing Agreement, including royalties based on the square footage of a casino and royalties based upon the sales of Barbeque Sauces, revenue from slot machines, and internet gaming. CBS has accepted such payments. In short, Plaintiff has complied with all covenants and conditions required under the Licensing Agreement. ‘THIRD PARTY INFRINGEMENT AND THE “SECRET” SETTLEMENT AGREEMENT BETWEEN CBS AND JETHRO’S BBQ 11, Pursuant to the Licensing Agreement, CBS has an obligation to take legal action to prevent and/or stop the unauthorized use or infringement by third parties of any rights assigned, transferred or conveyed to Plaintiff. 12, At some time unknown to Plaintiff, a third party opened a Jethro’s Barbeque restaurant chain in Des Moines, lowa (“Jethros's BBQ”). Jethro’s BBQ capitalized upon and exploited virtually every unique element of the Series, including the story, the characters names, and the appearance of the characters as they appeared on the Series by inextricably incorporating the elements into their menus, their food, how they prepare the food, the decor, their logos, artwork, website, public interviews, and advertising. Jethro’s BBQ did so without the knowledge or consent of CBS or Plaintiff. By utilizing thie Series elements, Jethro’s BBQ was able to expand rapidly and currently has at least five (5) restaurants with plans to open more. 13. Since 2008, CBS has been aware of Jethro’s BBQ and its unauthorized use of the Series elements. Instead of notifying Plaintiff who-had the rights with the possibility of making a licensing agreement, ot at worst, making Jethro’s BBQ cease and desist, CBS instead entered into a “secret” settlement agreement with Jethro’s BBQ without the knowledge or consent of Plaintiff. As of today, the secret settlement allows Jethro’s BBQ to continue using elements strikingly similar to and confusing with the Series Elements and only required minor changes to menu items, advertising, and artwork. As a result of the “secret” settlement agreement, today, Jethro’s BBQ uses characters and stories that are confusingly similar to the Series. 14, _ CBS refused to notify Plaintiff prior to entering into the “secret” settlement agreement. CBS misrepresented to Jethro’s BBQ that they had the capacity to.enter into the settlement agreement, 4 COMPLAINT FOR DAMAGESSoe axaawneun aL 12 13 14 15 16 7 18 19 20 21 22 pa 24 25 26 rTOAT+ EO 27 28 when, in fact, the rights to develop restaurants using the Series rested with Plaintiff exclusively. CBS did not disclose the “secret” settlement agreement to Plaintiff in 2013, when Plaintiff first discovered the existence of Jethro’s BBQand even then, CBS falsely claimed that the agreement was “confidential”, when, in fact, it was not confidential as to CBS even though CBS had no right to even enter into the “secret” settlement agreement without the approval of Plaintiff. Moreover, even if it was proper for CBSto enter into the “secret” settlement agreement (which it was not), CBS failed to undertake enforcement of Jethro's compliance with the minimal requirements thereof. CBS has not provided Plaintiff the full correspondence between Jethro’s BBQ and CBS. The secret settlement agreement provides for a full release of Jethro's BBQ and no payment of any damages or any other compensation to Plaintiff for Jethro’s BBQ's infringements. In doing these things, CBS has destroyed any opportunity for Plantiffto derive licensing fees from Jethro’s BBQ's use and has diminished the value of Plaintiff's once valuable rights by clouding Plaintiff’ ttle FIRST CAUSE OF ACTION FOR BREACH OF CONTRACT (Against CBS BROADCASTING, INC., a New York Corporation and DOES inclusive) 15. Plaintiff realleges cach and every allegation contained in paragraphs | through 14, inclusive, of this complaint as if fully set forth. 16. Plaintiff has performed all conditions, covenants and promises required on its part to be performed pursuant to the Licensing Agreement, except for those that have been prevented or excused by the actions and conduct of Defendants, and each of them 17. Under the Licensing Agreement, CBS is obligated to take any and all actions at law or in equity to stop the unauthorized use or infringement by third parties, at CBS’ sole expense. In addition, like every contract, the Licensing Agreement includes an implied covenant of good faith and fair dealing which requires that Defendant will-deal fairly and in good faith with Plaintiff and not do anything to deprive Plaintiff of the benefits of the agreement. 18, "Defendant CBS has breached the Licensing Agreement, including the applicable express provisions, and the implied covenant of good faith and fair dealing by, among other things: i) CBS 5. ‘COMPLAINT FOR DAMAGES EoS cw aa it 12 13 14 15 16 7 18 19 20 21 25 26 27 28 refusal to notify Plaintiff of the infringement prior to any settlement agreement; ii) failing to take legal action at law or in equity to halt Jethro’s BBQ's infringement if Plaintiff so desired; iii) entering into the “secret” settlement agreement with Jethro’s BBQ that releases Jethro’s without fully stopping the infringement and lax enforcement of Jethro’s compliance with the minimal requirements of the secret” settlement agreement, which they had no right to enter into; and iv) CBS’ refusal to cooperate and provide information to Plaintiff regarding the “secret” settlement agreement which they had no right to make. 19. As the result of Defendant CBS’s conduct as herein alleged, Plaintiff has suffered damages in an amount that is presently unascertainable, but subject to proof at time of trial 20. The Licensing Agreement contains provisions for the prevailing party to be entitled to attorney's fees in conjunction to any dispute arising thereunder. That Plaintiff did retain attorneys, and is entitled to attorney's fees according to proof. SECOND CAUSE OF ACTION FOR TORTIOUS INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE (Against CBS BROADCASTING, INC., a New York Corporation and DOES 1-30, inclusive) 21. Plaintiff realleges each and every allegation contained in paragraphs 1 through 20, inclusive, ofthis complaint as if fully st forth 22. By virtue of the Licensing Agreement, the economic relationship bore the probability of past, present and future economic benefit to Plaintiff and CBS in the form of revenues and profits from the operation of casinos, restaurants, and the sale of merchandise, including the possibility of “sub- licensing” these rights for others to operate such businesses and for Plaintiff and CBS to derive substantial royalties therefrom. 23. CBS knowingly interfered with Plaintiff's prospective economic advantage by, among other things: i) CBS refusal to notify Plaintiff of the infringement prior to any settlement agreement; failing to take legal action at law or in equity to halt Jethro’s BBQ's infringement if Plaintiff so desired; iii) entering into a “secret” settlement agreement with Jethro’s BBQ that releases Jethro’s without fully stopping the infringement and lax enforcement of Jethro’s compliance with the minimal requirements -6- ‘COMPLAINT FOR DAMAGESof the “secret” settlement agreement, which they had no right to enter into; and iv) CBS’ refusal to cooperate and provide information to Plaintiff regarding the “secret” settlement agreement which they had no right to make. 24. In fact, as a result of the conduct alleged herein, Plaintiff has been deprived of the possibility of entering into a licensing agreement with Jethro’s BBQ and deriving income therefrom and such conduct has substantially diminished the value of Plaintiff's rights not only in fowa but throughout the world by clouding Plaintif’s ttle. 25. As the result of Defendant CBS's conduct as herein alleged, Plaintiff has suffered damages in an amount that is presently unascertainable, but subject to proof at time of trial. 26. Defendant's conduct and interference as heretofore alleged was done intentionally, knowingly, willfully, maliciously, oppressively and in conscious disregard of Plaintiffs rights, Plaintiff is, therefore, entitled to punitive and exemplary damages from said Defendants, and each of them in an amount to be proven at the time of trial THIRD CAUSE OF ACTION FOR CONSTRUCTIVE FRAUD (Against CBS BROADCASTING, INC., a New York Corporation and DOES 1-30, inclusive) 27. Plaintiff realleges each and every allegation contained in paragraphs 1 through 26, inclusive, of this complaint as if fully set forth. 28. By virtue of the Licensing Agreement, the relationship of the parties was fiduciary in nature. CBS owed Plaintiff duties of utmost fidelity, loyalty, and honesty, and to avoid acts or failures to act that benefit CBS to the detriment and/or damage of Plaintiffs prospective rights under the Licensing Agreement. 29. CBS breached its duties to Plaintiff by, among other things: i) entering into a “secret “ settlement agreement with Jethro's BBQ that releases Jethro's without fully stopping the infringement; ii) failing to enforce Jethro's BBQ's compliance with even the minimal requirements of the “secret” settlement agreement; iii) CBS refusal to notify Plaintiff of the infringement or the “secret” settlement agreement; iv) CBS' refusal to cooperate and provide all of the information to Plaintiff regarding the 2 ‘COMPLAINT FOR DAMAGES“secret” settlement agreement negotiations; and v) repeatedly promising to Plaintiff that it would take action to halt the infringement of Jethro’s BBQ, when there was apparently no intention to do so. 30. As the result of Defendant CBS’s conduct as herein alleged, Plaintiff has suffered damages in an amount that is presently unascertainable, but subject to proof at time of trial. 31, Defendant's conduct, interference, and cover-up as heretofore alleged was done intentionally, knowingly, willfully, maliciously, oppressively and in conscious disregard of Plaintiff's rights. Plaintiffis, therefore, entitled to punitive and exemplary damages from said Defendants, and each of them in an amount to be proven at the time of trial. FOURTH CAUSE OF ACTION FOR DECLARATORY RELIEF (Against CBS BROADCASTING, INC., a New York Corporation and DOES 1-30, inclusive) 32, Plaintiff hereby incorporates by reference paragraphs 1 through 31, inclusive of the Complaint all as though fully set forth herein and made a part hereof by incorporation. 33. A controversy has arisen by and between Plaintiff, and the respective Defendants with respect to the rights of the Plaintiff pursuant to the Licensing Agreement. 34. Plaintiffs informed and believes and based thereon alleges that Defendants contend that some or all of Plaintiff's rights under the Licensing Agreement lapsed, including the right to use the Series Elements in connection with restaurants. 35. Plaintiff contends that all of the rights granted to Plaintiff under the Licensing Agreement were granted to Plaintiff in perpetuity and that none of the rights have lapsed, 36. A judicial controversy therefore exists between Plaintiff and Defendants, Plaintiff is therefore entitled to have this court decide the respective rights, duties, and obligations of the parties herein, with respect to their rights and liabilities under the Licensing Agreement. 37. Plaintiff believes that this declaration is both necessary and appropriate at this time, in order that Plaintiff may determine his rights and duties with regard to the subject matter of this litigation. W 7] 8. ‘COMPLAINT FOR DAMAGES10 u 12 B 14 16 17 18 19 20 a 26 27 28 PRAYER FOR RELIEF WHEREFORE, Plaintiff prays for judgment against defendants, and each of them, as follows: 1 2. For compensatory damages against CBS in an amount to be proven at trial ; For punitive and exemplary damages in an amount which will be shown according to proof at the time of trial; For a declaratory judgment setting forth the respective rights and obligations of the parties with respect to the Licensing Agreement; For prejudgment interest; For costs of suit, including reasonable attorney's fees; For such other and further relief deemed just and proper. DATED: December 8, 2014 LAW OFFICES OF JON H. FREIS By mye Jon H. ;, Esq. Attomeys for Plaintiff 9 COMPLAINT FOR DAMAGES_ EXHIBIT AFaz EMEN’ Agreement. entered into as of the 8th day of January, 1991, by and between CBS ENTERTAINMENT, a Division of CBS In¢., a New York corporation ("CBS"), 7800 Beverly Boulevard, Los Angeles, California 90036 and MAX BAER PRODUCTIONS, a California Corporation ("Baer"), 10433 Wilshire Boulevard, Los Angeles, California 90024. In consideration of the mutual covenants herein contained, the parties hereto have agreed and do agree as follows: 1. Relevant Agreements. (a) This agreement, and all of the provisions thereof, is specifically made subject to the following agreements: (4) Production Agreement dated as-of October 10, 1961, as amended, by and between Filmways TV. Productions, Inc. (*Filmways") and CBS (the “Filmways Production Agreement"), respecting production of and ownership of certain rights in the television series . entitled THE BEVERLY HILLBILLIES (the “Series"). (ii) Merchandising Agreement dated as of December 31, 1970, by and between CBS and VIACOM ENTERPRISES, 2 Division of Viacom International, Inc. ("Viacom") (the “viacom Merchandising Agreement"), pursuant to which CBS assigned, transferred, and conveyed to Viacom, on 3 "quitclaim" basis, whatever rights CBS then may have had to exercise "merchandising rights” (as defined in Paragraph 4 of the Viacom Merchandising Agreement), throughout the world, with respect to certain Tlicensed elements"’(as defined in paragraph l{a) of the Viacom Merchandising Agreement) in certain television program series (the titles of which are set forth in Exhibit "A" attached to the Viacom Merchandising Agreement), including the Series. (b) Baer acknowledges that prior to the execution of this agreement, CBS has furnished Baer with copies of both the Filmways Production Agreement .and the Viacom Merchandising Agreement. 2. Assignment of Rights. (@) CBS hereby assigns, transfers, and conveys to Baer, throughout the world, during the term of this agreement, whatever rights CBS may have to utilize the title of the Series, the names and/or likenesses of the characters created for and used in the Series, the names and/or likenesses of the 9/27/91, PMISC/276 Ekperformers as they appeared in the Series in their respective roles, the "Clampett truck" and the "Clampett dog", and any other elements created for and used in the Series (all of the foregoing of which are sometimes hereinafter referred to as the "Series Elements"), in connection with the following use: (i) operation of one or more lawfully licensed and authorized gambling casinos, including the opeation of a hotel adjacent to or as part of any such gambling casino; (4i) operation of one or more restaurants; (iii) sale of food and beverage items, including, but not limited to, fast food services, packaged foods, bottled foods, and alcoholic and non-alcoholic beverages, which sale of such items need not be part of Baer's operation of any restaurant; (iv) operation of a hotel which is not part of a gambling casino; and (v) operation of a recreational vehicle park, why may or may not be located adjacent to a gambling casino and/or operated as part of a gambling casino. (b) ‘Baer hereby accepts the assignment, transfer, and conveyance referred to in subparagraph 2(a) above. ({c) The assignment, transfer, and conveyance of the rights described in this subparagraph (a) is specifically deemed to consist of a quitclaim of whatever rights CBS may have in the Series Elements respecting the uses described in subdivisions (i) through (v) of subparagraph 2(a) above, and CBS makes no express or implied warranty, representation, or covenant of any kind whatsoever (except as otherwise expressly set forth herein) with respect to any rights in the Series Elements that CBS may have. (d) All food and beverage items produced, marketed, advertised, sold, or distributed by Baer hereunder pursuant to the license granted pursuant to subdivision (a)(iii) above are hereinafter referred to as "Licensed Products”, (e) Any rights not specifically assigned, transferred, or conveyed to Baer hereunder are reserved by CBS. 3. _ Exclusivity. The rights assigned, transferred, and conveyed to Baer for the uses of the Series Elements described in subdivisions 2(a)(i) and 2(a)(ii) above shall be exclusive to Baer during the Commencement Period (as defined in paragraph 9/27/91 PMISC/2764 below), as the same may be extended, and throughout the term of this agreement. The rights assigned, transferred, and conveyed to Baer for the uses of the Series Elements described in subdivision (iii) above shall be non-exclusive to Baer during the Commencement Period, as the same may be extended, and throughout the term of this agreement; provided, however, that with respect to each Licensed Product, the rights assigned, transferred, and conveyed shall become exclusive to Baer Commencing on the date the individualized Licensed Product is first offered for sale by Baer. 4. mmencem £ £_Righ’ ny: (a). Commencement Period. Baer shall have a period of seven (7) years from and after the date first above written within which to commence use and exploitation of the rights assigned, transferred, and conveyed to Baer pursuant. to Paragraph_2 above (the "Commencement Period". In the event Baer f2ils to commence use and exploitation of such rights prior to the expiration of the Commencement Period, then the assignment, transfer, and conveyance of such rights shall be deemed to have been automatically revoked. (b) Extension of Commencement Period. Notwith- standing subparagraph (a) of this paragraph 4, Baer shall have the right to extend the Commencement Period for an additional Period of seven (7) years by payment to CBS of the following: (i) with respect to the rights assigned, transferred, and conveyed respecting use of the Series Elements in connection with the operation of a gambling casino (as provided in subdivision 2(e)(i) above), the sum of $10,000; and (ii) with respect to the rights assigned, transferred, and conveyed respecting use of the Series Elements in connection with the operation of a restaurant (as provided in subdivision 2(a)(ii) above) and/or the license granted respecting food and beverage items (as provided in subdivision 2(a) (iii) above), the sum of $5,000. 5. Term. Subject to paragraphs 4 and 14 hereof, the term of this agreement shall be in perpetuity. 6 Approvals. (a) Prior to Baer’s manufacture, distribution, marketing, and/or sale of any proposed Licensed Product, Baer shall furnish to CBS, at no cost to CBS, a sample of the Proposed Licensed Product for CBS's approval. CBS shall have a 9/27/91 PMISC/276period of twenty-one (21) days following CBS's receipt of such Sample to either ‘approve or disapprove same. CBS's failure to act within such period of time shall constitute CBS's approval of ‘same. Baer shall not materially depart from the design and appearance of any Licensed Product approved by CBS without the prior written permission of CBS. Baer's failure to comply with the provisions of this paragraph 6 shell constitute a meterial breach of this agreement by Baer and CBS shall have the right to terminate this agreement by written notice to Baer, as hereinafter provided. Following CBS's approval of a Licensed Product and Beer's manufacture thereof, Baer shall provide CBS, at no cost to CBS, one (1) dozen additional samples of the Licensed Product. (b) Baer shall submit all artwork, photographs, and jayouts proposed for use as part of a Licensed Product and ai] Promotion, packaging, advertising, and point of purchase material to CBS for final approval by CBS. CBS shall have a period of twenty-one (21) days following CBS's receipt of any Such material to either approve or disapprove same. CBS's feilure to act within such period of time shall constitute CBS's approval of same and the cost of any changes requested by CBS thereafter shall be borne by CBS. 7. Compensation. (2) Basic Compensation. For all rights assigned, transferred, and conveyed by CBS to Baer herein, Baer shali pay to CBS the following: (i) with respect to Baer's exercise of the rights assigned, transferred, and conveyed respecting use of the Series Elements in connection with the operation of a gambling casino (as provided in subdivision 2(a)(i) above), Baer shall pay to CBS, in advance on an annual basis commencing on the date that Baer is granted a gambling license, a sum determined by multiplying $1.00 (the “Rate") by the square footage of casino space; provided, however, that the Rate shall be subject to ten percent (10%) cumulative annual increases; provided further, that the Rate shall not exceed $1.50. (ii) with respect to Baer's exercise of the rights assigned, transferred, and conveyed respecting use of the Series Elements in connection with the operation of a restaurant (as provided in subdivision 2(a)(ii) above), Baer shall pay to CBS: A. a sum equal to one percent (1%) of one hundred percent of Baer's gross sales from the sale of food and non-alcoholic beverages; and 9/27/91 PMISC/276B. a sum equal to two percent (2%) of one hundred percent of Baer's gross sales from the sale of alcoholic beverages. (iii) with respect to Baer's exercise of the rights assigned, transferred, and conveyed respecting use of the Series Elements in connection with the sale of food and beverage items incident to the operation of any restaurant, including, but not limited to, fast food services, packaged foods, bottled foods, and alcoholic and non-alcoholic beverages, Baer shall pay to CBS: A. a sum equal to one percent (1%) of one hundred percent of Baer's gross sales from the sale of food and non-alcoholic beverages; and B. a sum equal to two percent (2%) of one hundred percent of Baer's gross sales from the sale of alcoholic beverages. (iv) with respect to Baer’s exercise of the rights assigned, transferred, and conveyed respecting use of the Series Elements in connection with the operation of a hotel and/or a recreational vehicle park, as provided in subdivisions 2(a)(iv) and 2(a)(v) above, CBS and Baer shall negotiate in good faith respecting the compensation applicable thereto. (b) n= Adv: . Upon execution of this agreement, Baer shall pay to CBS a non-refundable advance in the amount of $15,000, which advance shall be applicable against 211 compensation payable pursuant to this paragraph 7, as follows: $10,000 shall be applicable against compensation payable pursuant to subdivision 7(a)(i) above; and $5,000 shall be applicable against compensation payable pursuant to subdivisions 7(a)(ii) and 7(a)(iii) above. (c) Definition of “Gross Sales". For purposes of this paragraph 7, the term “gross sales" shall be defined as the gross receipts received by Baer (or any affiliated entity, agent, representative, or designee) from the exercise of the rights assigned, transferred, and conveyed hereunder. (a) Payment of Compensation. With respect to compensation payable pursuant to subdivision 7(a)(i) above, Baer shall make payment in advance, on a quarterly basis. With respect to compensation payable pursuant to subdivisions 7(2)(ii) and 7(a)(iii) above, Baer shall submit calendar quarterly statements to CBS within thirty (30) days after the end of the applicable calendar quarter, and the applicable 9/27/91 PMISC/276compensation shall be due and payable concurrently therewith. Such quarterly statements shall include for each Licensed Product sold by Baer hereunder, the following: a description of the proguct; the unit price; the quantity sold; the sales volume (in dollars); and the compensation payable. (e) Inspection of Baex's Records. Upon not less than five (5) days‘ prior notice to Baer, during normal business hours at Beer's place of business, CBS shall have the right to examine and copy Baer's books. and records concerning: (i) any documents relating to the square footage of any gambling casino; (ii) sales of food and beverage items relating to the operation of a restaurant; and (iii) and sale of any Licensed Products. Baer shall be obligated to maintain such books and records for a minimum period of two (2) years following the end of each calendar year of the term of this agreement. CBS's right of inspection shall be restricted to not more than twice in each calendar year. 8. OW an ification - Baer. Baer warrants and represents that Baer is free to enter into and fully perform this agreement and that Baer shall have obtained all rights and licenses, including without limitation governmental approvals and authorizations, necessary and/or required to exploit any of the rights assigned, transferred, and conveyed by CBS to Baer hereunder. Baer agrees to indemnify and hold harmless CBS and CBS's successors and assigns, from and against all claims, damages, liabilities, demands, causes of action, costs and expenses, including reasonable counsel fees, arising out of any breach by Baer of the foregoing warranty or this agreement or arising out of or resulting from any exploitation and/or use by Baer of any of the rights assigned, transferred, and conveyed by CBS to Baer hereunder. ? 9. Warranty and Indemnification - CBS. CBS warrants and represents that CBS is free to enter into and fully perform this agreement. CBS agrees to indemnify and hold harmless Baer and Baer's successors and assigns, from and against all claims, damages, liabilities, demands, causes of action, costs and expenses, including reasonable counsel fees, arising out of any breach by CBS of the foregoing warranty or this agreement or arising out of or resulting from any claim or cause of action asserted by Viacom International Inc. (including any affiliate, subsidiary, or division thereof), Paul Henning ("Henning") (including his successors and assigns), or any actor that appeared in episodes of the Series, respecting Baer's exploitation and/or use of any of the rights assigned, transferred, and conveyed by CBS to Baer hereunder, to the extent that such exploitation and/or use by Baer is determined to be an exploitation and/or use by Baer of merchandising rights and commercial tie-ins in the Series and the Series Elements. 9/27/91 PMISC/27610. hy Tra k Notices: 5 (a) Baer shall include on any Licensed Product ard on any other product, property, or item on which Series Elements are utilized all copyright and/or trademark notices required by CBS. (b) Nothing contained herein shall prohibit Baer from using Baer's own trademark(s) on any Licensed Product and its own copyright notice on’ any Licensed Product where such Licensed Product contains independent material which is the property of Baer. (c) No use of any Series Element made by Baer hereunder shall be derogatory to, or critical of, the Series, the entertainment industry, or of CBS, and/or any officer, director, agent, employee, affiliate, parent or subsidiary of CBS. Any breach of this subparagraph by Baer shell constitute a material breach of this agreement by Baer. ll. Independent Contractors. Nothing herein shall create any association, partnership, joint venture or the relationship of principal and agent between the parties hereto, it being understood thet CBS and Baer are with respect to each other independent contractors, and neither party shall have any authority to bind the other or the other's representatives in any way. 12. CBS's Right to Purchase Licensed Products. CBS shall bave the right (but not the obligation) to at any time purchase a reasonable number of any Licensed Product from Baer at the lowest price offered by Baer. Any Licensed Product purchased by CBS pursuant to this paragraph 11 shall not be purchased by CBS for re-sale. 13. Infringements. Baer shall promptly notify CBS of any unauthorized use or infringement by third parties of any rights assigned, transferred, ané conveyed to Baer herein, and Baer shall cooperate fully in any action at, law or in equity undertaken by CBS with respect to such unauthorized use or infringement, it being understood that 211 expenses in connection with such action shall be borne by CBS. 14. Termination. (a) CBS may terminate this agreement forthwith if: (i) Baer materially breaches this agreement, and Baer fails to cure such breach within thirty (30) days after notice from CBS; 9/27/91 PMISC/276(ii) Baer fails to pay when due any compensation payable to CBS hereunder and Baer fails to cure such breach within fifteen (15) days after notice from CBS; (iii) Baer (or any assignee of Baer) makes an assignment for the benefit of creditors; (iv) Baer (orany assignee of Baer) files (or a third party files against Baer) a petition to have Baer adjudged bankrupt or a petition for reorganization or arrangement under any law relating to bankruptcy, unless, in the case of a petition filed against Baer, the same is dismissed within sixty (60) days; ox . (v) a trustee or receiver is appointed to take possession of all or substantially all of the assets. of Baer or of Baer's interest under this agreement, which appointment is not discharged within sixty (60) days (b) Upon the termination of this agreement, Baer shall furnish CBS with a statement showing the number and description of each Licensed Product which Baer has in inven- tory or in process. Upon reasonable notice to Baer and during normal business hours, CBS shall have the right, at-its own expense, to take a physical inventory respecting the Licensed Products. Baer shall have the right to dispose of any such remaining inventory, including goods in process, for a period of one hundred eighty (180) days following the termination of this agreement unless such termination is the result of the exercise by CBS of CBS's right of termination pursuant to subparagraph (a) of this paragraph 14, in which event Baer shall have no further right to sell any Licensed Product. (c) In the event that termination of this agreement is not the result of the exercise by CBS of CBS's right of termination pursuant to subparagraph (a) of this paragraph 14, and Baer elects to sell any remaining inventory, all applicable provisions of this agreement (including without limitation paragraph 7 above) shall govern such sale. In the event Baer elects to destroy any such remaining inventory, Baer shall first offer CBS the opportunity to purchase such inventory at the lowest price offered by Baer. In the event CBS elects not to purchase such inventory and Baer thereafter destroys such inventory, Baer shall furnish CBS with a certificate attesting to such destruction. 15. Insurance. At all times during the term of this, agree- ment, Baer shall maintain product liability insurance, in standard form with a recognized insurance company, insuring 9/27/91 PMISC/276Baer and naming CBS as an additional insured. Such insurance coverage shall have a combined single limit (bodily injury and property damage) of at least $1,000,000 ($3,000,000 aggregate). The insurance policy required herein shall include a provision requiring the insurance company to give CBS prompt notice, of at least thirty (30) days, of any revision, modification or cancellation thereof. No revision, modification or cancel- lation of such policy which may affect CBS' rights hereunder shall be made by Baer without first obtaining the prior written approval of CBS. No later than thirty (30) days prior to the initial sale of the first Licensed Product sold by Baer hereunder, Baer shall furnish CBS with a certificate of insurance evidencing the coverage required herein. 1s. Attorneys’ Fees. If either party brings an action to enforce the terms hereof or for a declaration of rights here- under, the prevailing party in such action, on trial or appeal, shall be entitled to its reasonable attorneys’ fees to be paid by the losing party as fixed by the court. The provisions of this paragraph shall inure to the benefit of the party who seeks to enforce any right hereunder. 17. Assignment. CBS may, in whole or in part, assign its rights and/or delegate its obligations hereunder, but CBS shall remain responsible for the performance of such obligations. Beer shall not have the right to assign its rights and/or delegate its obligations hereunder without CBS's prior written approval, which approval shall not be unreasonably withheld or @elayed; provided, however, that Baer shall remain responsible for the performance of such obligations; provided further, however, that Baer shall have the right to assign or delegate its obligations to any entity under the common control of Baer. The assignment or delegation by Baer (even if permitted hereunder or otherwise approved by CBS) of its rights and obligations hereunder (or any part thereof) shall have no effect upon the method of calculating the compensation payable to CBS hereunder. 18. Notices. All notices required or permitted hereunder shall be effective upon receipt (or refusal) thereof and shall be in writing and shall be personally delivered or sent by prepaid certified or registered mail or air courier. Notices sent to CBS shall be addressed as follows: CBS Entertainment A Division of CBS Inc. 7800 Beverly Boulevard Los Angeles, California 90036 Attention: Vice President, Business Affairs With an additional copy addressed as follows: 9/27/91 PMISC/276CBS Inc. 7800 Beverly Boulevard Los Angeles, California 90036 Attention: Lew Department Notices sent to Baer shall be addressed as follows: Max Baer Productions 10433 Wilshire Boulevard Los Angeles, California 90024 With additional copies addressed as follows: Mr. Max A. Baer 15439 Victory Boulevard van Nuys, California 91406 and Dern & Donaldson 1901 Avenue of the Stars, Suite 400 Los Angeles, California 90067 Attention: Dixon Q. Dern, Esq. 19. Future Good Faith Negotiations. At any time during the Commencement Period, as the same may be extended, or the term of this agreement, CBS agrees to negotiate in good faith with Baer respecting the assignment, transfer, and conveyance by CBS to Baer of rights in the Series Elements for use by Baer in connection with any of the following: (2) Hotel and/or motel "stand alone” business; (b) Franchising; (c) Closed-circuit hotel and/or mote] exhibition of the programs in the Series on either a free or pay-per-view basis; (4) Exhibition of the programs in the Series in a designated viewing room in a gambling casino on a non-paying basis; and (e) Sale of videocassettes of programs in the Series in a gift shop comprising part of a gambling casino, hotel, and/or restaurant. 20. General Provisions. (a) California Law. This agreement shall be construed and interpreted in accordance with the laws of the - 10 - 9/27/93 PMISC/276State of California applicable to contracts entered into and fully to be performed therein. (b) Incorporation of Prior Agreements: Amendments This agreement contains all agreements of the parties with respect to any matter mentioned herein. It may be modified in writing only, signed by the parties in interest at the time of the modification (c) Severability. Any provision of this agreement determined to be invalid by a court of competent jurisdiction, shall in no way affect any other provision hereof. (a) Time of Essence. Time is of the essence of each provision of this agreement. (e) Consent of Parties. Whenever consent or approval of either party is required, that party shall not unreasonably withhold or delay such consent or approval. (£) Waivers. No waiver by CBS or Baer of any provision hereof shall be deemed a waiver of any other Provision hereof or of any subsequent breach by the other party of the same or any other provision. IN WITNESS WHEREOF, CBS and Baer have executed this Agreement as of the date first above written. CBS ENTERTAINMENT A Division of CBS Inc. A New York corporation MKX BAER PRO! vA By Sieh 9727791 PMISC/276“wo i216 FRc 216 FR oS a) erm 7 a ese ly eect ‘Rivtce As of January 31, 2000 Max Baer Productions 20423 Wilshire Boulevard Loe Angeles, California 90026 Actention: Max Baer, Jr. Re: THE BEVERLY HILLBILLIES adiee/Gentienen: neferenca is nade to the agreenent dated as of January 8, Boi os aneuded (the “Agreament"), respecting the ZEsignnece by C8s Entertainnent, a'Divinion of CBS peesguaSeiag’ sme, (formerly xnown ae COS Inc.) (¥CHar) to Max Baer, Productions ("Baer") of certain Fights in che "Rivelictarenced televieton series (the "Series"). cas and Raer have agreed. and do hereby agree, that tne fgzecnent shall be further anended, pe follows 4, Comerica Bradocts. fa) subparagrah 2(a) of the Agreenont ig mosified to provide that CBS aegigne, transfers, and conveys ceaarer, thebugnout the world, during the term of the xe eetehe: the right to utilize the Seriwa Elenoncs tr aaeeecriun with the produczion. marketing, dsetribstion, and Gele of a Line of copnetics products. (b) In consideration of ‘the rights assigned, ceaneferrad, and. conveyed by CBS to Baer Pursuant to Pibperagraph ita) above, Baer shall pay to CBS the following: (i) a eum equal to five percent, (54) of one hundred percent of Baek"e groas retail ‘eon the sale of cosmetic products; sad (i) @ aun ogual to ten pe rs hundied percent of Saer'e gross violesale sales fron the sale of cosmetic products 3/12/2000 2 25972.04pd R i Qs eves remains 323 975 ase AY vrs9n2 ~ resaa In the event Baer elects to se21 co =e emetic product izit a Ree ee through a third party Riseribecor, cas Baer 1 negotiate in good faith with reapect to the epeliceble payment (royalty) to be made by Baer to CBS in ne th euch sales and the gros revenues xeceived (e) Upon execution of thie amendment to agreenent, ‘Snex bha2i pay to CBS a noa-refundable sdvance in the amount of $20,090, which amount shall be applicable against all conpencation payable pursuant to this paragraph J. Thereafter, beginning with the date that is one year from Baer's commencement of the sale of cosmetic products and continuing on each subsequent arnivereary, Baer shall pay to CBS a non-refundable advance in the amount of $10,000, which amount chall be spplicable against oil Compensation payable pursuant to this paragraph 1. (a) ‘The provisions of subparagrazh, 7 (c) (spefinicion of ‘Gross Sales'"), subdivision 7(d) (14) (Payment of Compensation*), and subparagraph 7(e) (tingpection of Baer's Records") shall be applicable to the Nights assigned, transferred, and conveyed pursuant to Chis paragraph 1. te) Baer acknowledges and agrees that CBS shall nave a right of approval, not to be unreasonably withheld, nENH respect to ail cosmetics products utilizing the Series Elements that Baex proposes to sell. 2. Slor Machines. (a) Subparagraph 2(a) of the Agreemect 38 modified to provide that CBS assigns, transfers, and conveys nodities Chrougnout the world, during the term of the BSceenenes the right to utilize the Series Syonense oe, Agreenent, Uren aict machines to be sold and/or Licensed Dy Baer to third parties not affiliated with any gambling Pacino owned and/or operated by Baer. () In consideration of the rights assigned, transferred, and conveyed by CBS to Baer pursuant ot tigtaragraph 2(a) sbove, Baer shell pay to CS oooh, equal gubparacrabient (54) of the grose revenues received by Baer to five Peale and/or licensing of such slot machines: (c) The provisions of subparagraph 7c) | (npefinition of ‘Gross Sales'*) 5 mbaivision, 7 a) 144) ( tof Compensation"), and subparagraph, 7 (e (ieaimection of Baer's Records") shall be applicable to the AXgnee assigned, transferred, and conveyed pureuant to this peragraph 2. -2- 5/12/2000 29072.08