PART III: THE DECLARATION OF MARK KENDALL

I, MARK KENDALL, hereby state and declare: 

1. I am a Defendant and Counterclaimant in this matter. I make this Declaration in Support of Defendants’ and Counterclaimants’ Motion for Summary Judgment. I make this Declaration of my own knowledge, and, if called upon, could and would testify competently hereto. All statements are made based upon personal knowledge, except where stated to be on information and belief.

2. Great White is a rock band formed in 1982. The original members of Great White are me, Plaintiff Jack Russell and two other musicians who left by 1986.

3. Before being “Great White”, the band was called “Dante Fox.” I formed Dante Fox in 1978, which played with different two singers, before Jack Russell joined the band in 1980. I cast the vote to get Russell in the band.

4. Great White achieved its greatest success between 1984 – 1995, with a gold/platinum album in 1987 (“Once Bitten”), a gold/double platinum album in 1989 (“Twice Shy”) and a gold album in 1990 (“Hooked”). During this time the band was managed by Alan Niven. Niven who also co-wrote many of the band's songs and most of their lyrics. Niven came up with the name “Great White.” The band has sold

over 8 million records. The core members of Great White during its best selling years were me, Michael Lardie (keyboards, guitar, studio production), Audie Desbrow (drums), and Jack Russell.

5. There is no extant writing that specifically addresses ownership of the GREAT WHITE trademark or service mark. Major decisions in the band have always been democratic.

6. Great White Productions, Inc. was formed in 1983. I was made the President. Attached hereto as Exhibit A is a true and correct copy of the articles of incorporation of Great White Productions, Inc.

7. In 1988, we executed a Second Amendment to the Shareholder’s Agreement. We added a clause requiring that any trademark rights would accrue to the benefit of the corporation, as well as a clause stating that departing members could only identify themselves as former members of GREAT WHITE. We added these clauses because of problems with departing members. Attached hereto as Exhibit B is

a true and correct copy of the Second Amendment the Shareholders’ Agreement.

8. In the late 1990’s Great White continued around me, Russell, Desbrow and Lardie. In 1999, Russell’s voice was very tired, and the band was contracted to tour Europe. Russell called me to inform me that the whole band would need to fake or “lip sync” their performances. I refused to go and believed the other band members would do the same thing.

9. Apparently Russell did not tell some of the other band members, and they unsuccessfully attempted to lip sync a show in Madrid. They were booed off the stage and returned to the United States. At that point, I had had enough and informed Russell that I was withdrawing from the corporation, so as to avoid liability for the canceled tour.

10. I did not play with Great White from January, 2000 until August, 2001. It was never my intention to abandon the GREAT WHITE trademark, and I continued to receive royalties relating to sales of recordings. In October, 2001, Russell announced he would be leaving the band to pursue a solo career. This seemed like a good time to take a break, and everyone pursued different projects. In December,

2001, we recorded a “farewell” record called “Thank You, Goodnight.”

11. Prior to that, in 2000, Desbrow had left the band because of a conflict with Russell.

12. After the “farewell,” Russell released a solo record, and ticket sales were poor during his tour. His manager Paul Woolnough called me in mid-tour to request that I join the band to assist so that Russell could play more Great White material. Also, his guitarist was having trouble duplicating my parts. The band switched from “Jack Russell” to “Jack Russell’s Great White.” It was during this tour that a tragic

fire broke out in a nightclub in West Warwick, Rhode Island. 101 people perished. 56 children lost one or both parents. I do not consider the band that played that night to actually have been Great White.

13. After the fire, Russell and I hired Obi Steinman to assist with rebuilding the band’s image and conducting a benefit tour for the fire victims. We formed a new corporation called Shark Touring, Inc. in March, 2004. Russell and I were equal owners. Attached hereto as Exhibit C is a true and correct copy of the Articles of Incorporation for Shark Touring, Inc.

14. We toured with many support musicians; none of them were of the quality of Desbrow or Lardie. I did not approach them because paying their salaries would have cut into the money for the benefit. This period of the band was referred to as “Fake White.”

15. Once again, around 2005, we took a break. For a brief period, Russell sold mortgages. I completed a solo album and worked installing Tile. Russell also completed a stay in the Betty Ford Center.

16. Eventually, in late 2006, we began to plan a true reunion with the classic lineup of the band. The lineup was to be the last recording version of the group: me, Russell, Desbrow, Lardie and bassist Sean McNabb.

17. The band reunited and recorded “Back To The Rhythm.”

18. Our bassist Sean McNabb was very strict about sobriety. In approximately April, 2008, he helped Russell detox. We eventually fired McNabb, in part because Russell was tired of McNabb keeping such close tabs on his sobriety.

19. Lardie, Desbrow and I have been playing shows continually as Great White since 2007. Since 2007, we have performed live over 275 times and none of us has missed a performance. On at least five occasions, Lardie and I have filled in on vocals for Russell when he was unable to play.

20. Russell had been in rehabilitation centers several times, but starting in 2009, Russell’s issues with drugs and alcohol became a major impediment to our performances. He had fallen on stage and broken bones.

21. In May, 2010, Russell was living with his mother, and my wife was

taking care of him. Eventually, I had to stop watching over Russell because it was too taxing

on me.

22. In a famous YouTube video taken in San Antonio, Russell fell on stage and could not get up without assistance. The band were criticized for taking Russell on the road, but he wanted to tour.

23. By late August, 2010, it was clear that Russell would be unable to perform. He would go on to spend the entire year of 2011 recuperating.

24. Terry Ilous of the band XYZ was hired to save dates that were booked. Russell knew about him. He did nine shows, then Great White played a few shows with Jani Lane, the former singer of Warrant. Paul Shortino filled in for a show in Sweden. Since then, the singer for Great White has been Ilous.

25. We anticipated for months that Russell might return. However, I grew tired of speaking with Russell on the phone when I suspected he was on drugs. I asked that he deal with the band’s management until he was able to perform. My attitude was essentially “show me, don’t tell me.” Russell spoke with my wife, Bridget, many times. Between February and May, 2010, Bridget was taking care of Russell’s mother, and Russell lived at her house, so Bridget would report on Russell’s condition.

26. In December, 2011, Russell told my wife that was “taking the name of the band and moving on.” I called an attorney friend, who suggested that I was well within my rights to file a trademark application on “Great White.” My wife filed the application.
27. On December 11, 2011, Russell sent a rambling email criticizing all of the band members. This sort of communication was indicative of Russell being on illicit medication. My step daughter, who had always felt close to Russell, called him and was very upset about the email. He had some unkind words for her about our family, and she stopped speaking with him.

28. Our shows with Terry Ilous have been well attended, and the audiences have been enthusiastic. I was aware of less than five fans upset at some of the very early shows we booked with Ilous. Ilous’s stage presence and mobility are much greater than Russell’s after 2009. It is important in live rock music that the singer engage the audience and be mobile on stage. Ilous is also able to stay much more on key than Russell was in his later days.

29. Attached hereto as Exhibit D is a DVD entitled “Russell Kendall Multimedia” that was authenticated at page 274 of Russell’s deposition. It contains videos of various performances of Jack Russell’s band and Great White. It also contains a video of his fall in San Antonio in June, 2010.

30. Attached hereto as Exhibit E is bates number GW001433. It contains videos of performances with different singers singing with Great White. While Russell was in the band, I sang, as did Sean McNabb, Michael Lardie and Scott Snyder. While Russell we had fill in singers including Terry Ilous, Paul Shortino and Jani Lane. Also included are our two videos with Terry Ilous from “Elation.”

31. Attached hereto as Exhibit F is bates number GW001431, which is a DVD containing all of the major videos shot for Great White. The videos show all members of the band performing, not just Russell.

32. I declare under penalty of perjury under the laws of the United States and the State of California that the foregoing is true and correct. Executed this 22nd day of April, 2013 at Yucaipa, California.

/S/ Mark Kendall

MARK KENDALL