1. GENERAL RULE. EXECUTIVE SUMMARY FOR SONY AFFILIATES SECOND AMENDED AND RESTATED LICENSE AGREEMENT ( SPIDER-MAN ) MARVEL CONSUMER ELECTRONICS LICENSES a. No Marvel CE Licenses Relating to Spider-Man. As a general rule, Marvel does not have any right to enter into merchandising licenses or Co-Promotions relating to the Spider-Man Property that involve any product within the Sony Consumer Electronics Categories. b. Limited Exception. As an exception to this general rule, Marvel has been granted a limited right to license solely to Qualifying CE Licensees the right to manufacture and sell Qualifying Kids CE Products, only after complying with SPE s rights of First Negotiation and Last Refusal with respect to each such proposed license. 2. SONY CONSUMER ELECTRONICS CATEGORIES. a. General Rule. Sony Consumer Electronics Categories means essentially consumer electronics products that are manufactured or sold or distributed at the relevant time by any Sony group company, anywhere in the world. b. Excluded Product Categories. For purposes of the agreement with Marvel, Sony Consumer Electronics Categories do not include products for which the primary intended function is something other than the display, performance, communication, computation, manipulation and/or storage of audio, visual, audio-visual, analog or digital content, data or information. For example, a plush toy in the shape of a dog with electronic components which cause it to bark or walk would not be a product in the Sony Consumer Electronics Categories, but a television or DVD player or videogame console in the shape of a dog would be a product in the Sony Consumer Electronics Categories. Another example: camera cases and TV stands would not be in the Sony Consumer Electronics Categories. c. Verification Procedure. Marvel is entitled to verify whether a particular product category is made, sold or distributed by Sony as follows: (a) first by checking whether that product category is referenced on www.store.sony.com, www.playstation.com, www.sony.com or www.sony.net (or successor or replacement sites), and (b) if a product category is not referenced on those websites, Marvel may send a written notice to SPE requesting confirmation whether the applicable product category is manufactured, sold or distributed by Sony and SPE is required to respond within 10 business days. 3. QUALIFYING CE LICENSEE. Marvel can license merchandising rights for Spider-Man products in the Sony Consumer Electronics Categories only to a Qualifying CE Licensee meaning a party whose aggregate worldwide gross revenues (including all of its direct and indirect Affiliates) from the sale of any and all consumer electronics or computer products and all related accessories is less than US $500 million in each of its last 3 fiscal years. 1
4. QUALIFYING KIDS CE PRODUCTS. Marvel can license Spider-Man products in the Sony Consumer Products Categories only if they are Qualifying Kids CE Products that meet all of the following requirements: a. Character-Based Molding. The product is designed so that the entire exterior surface of the product (except for areas, such as display screens, where the function of the product would be materially impaired by the inclusion of character design elements) is covered by character-based molding and/or other permanently-affixed conspicuous physical design elements based on the Property that are integral to the construction of the product and are intended to appeal to children age 10 and under. Illustrative examples are attached to the agreement, and to this memo. b. Designed for Children 10 and Under. The product is designed for, and intended to be used by, children age 10 and under and must have limited features and functionality appropriate for such children and be substantially less sophisticated than products designed for teenagers and/or adults. c. Marketed to Children 10 and Under The product is marketed primarily to children 10 and under, using marketing materials that appeal to children 10 and under, carried on media outlets viewed primarily by children 10 and under, and packaged in materials intended to appeal to children 10 and under. d. Low Price Point. The product must have Manufacturer s Suggested Retail Price points appropriate for mass-marketed products designed to be used by children age 10 and under and must not be marketed as high-end electronics or at Manufacturer s Suggested Retail Price points comparable to high-end electronics. e. No Branding. Neither the product, nor its packaging nor any marketing materials relating to the product may display the name, brand, trademark or logo of any company other than Marvel, unless required by applicable law, in which event the name (but not the logo or trademark) of the Qualifying CE Licensee may appear on the product and/or its packaging and/or marketing materials provided that such name is in the smallest size and situated in the most inconspicuous place permitted by applicable law. f. Prohibited Categories. The product cannot be in any of the following prohibited categories: (i) televisions with screens measuring over 20 inches diagonally, (b) tabletstyle computers, or (3) any game console, whether home/location based or portable, that is capable of playing any game or other software that is imported into the device by or with the consent or authorization of a consumer (through download, streaming use of physical media or otherwise). 5. RIGHT OF FIRST NEGOTIATION. SPE has a right of First Negotiation, on a case by case basis, with respect to each proposed license by Marvel of any Qualifying CE Kids Product. Marvel must give SPE notice of the product category and territory it wishes to license and SPE has 10 days to notify Marvel whether SPE wishes to negotiate to acquire those rights. If SPE gives notice of its desire to negotiate, the parties have an additional 30 day period to reach an agreement. If SPE declines to negotiate or if the parties fail to reach agreement 2
within the 30 day period, Marvel may negotiate with other parties for the applicable product category and territory, subject to SPE s right of Last Refusal. 6. RIGHT OF LAST REFUSAL. If after complying with SPE s right of First Negotiation, Marvel obtains a bona fide offer from a Qualifying CE Licensee to acquire rights to a Qualifying CE Kids Product, Marvel must, prior to accepting that offer, give SPE written notice of the name of the proposed licensee and all of the material terms of the proposed deal. SPE then has 10 business days within which to acquire the applicable rights on the terms contained in Marvel s notice, except that SPE may accept the offer without agreeing to any of the product restrictions set forth in Paragraphs 4.a, 4.b, 4.c, 4.d or 4.e of this memo. If SPE declines to acquire the applicable rights, Marvel may license the applicable product only to the licensee identified in Marvel s notice to SPE and only on the terms identified in Marvel s notice. 3
FULL CONTRACTUAL PROVISIONS 11.a(i)(G) Sony Consumer Electronics Categories. Sony Consumer Electronics Categories means any and all categories of consumer electronics products that are manufactured or sold or distributed at any time during the Production Term by (or on behalf of) any Affiliate of Sony Corporation, or any joint venture in which any Affiliate of Sony Corporation is a member (e.g., Sony-Ericsson) (collectively, the Sony Group ) anywhere in the world including, without limitation, PlayStation or other console video game hardware, television sets and attachments thereto on which programming is recorded or played (including VCR s, DVD/Blu-Ray players, etc.), cameras, camcorders, and sound equipment (including stereos, CD players, Minidisc players, tape recorders, walkmans, streaming media players, etc.), personal computers and computer displays (including desktops and laptops, tablets and e- readers), and telephones and mobile phone devices, including smartphones. If Marvel desires, from time to time, to verify whether a category of consumer electronics products is manufactured, sold or distributed by the Sony Group and is, thus, within the Sony Consumer Electronics Categories, the following procedure shall apply: (1) Marvel may check whether the applicable category of consumer electronics products is referenced on any one or more of the following internet sites (or successor or replacement sites that may exist at any time): www.store.sony.com, www.playstation.com, www.sony.com or www.sony.net (collectively, the Designated Sony Websites ), and (2) If a category of consumer electronics products is not referenced on the Designated Sony Websites, Marvel may send a written notice to SPE requesting confirmation whether the applicable category of consumer electronics products is manufactured, sold or distributed by the Sony Group and is, thus, within the Sony Consumer Electronics Categories and within 10 business days after receipt of such request SPE will respond and notify Marvel whether the applicable product is within the Sony Consumer Electronics Categories. The Parties acknowledge that the following shall not be considered within the Sony Consumer Electronics Categories: products for which the primary intended function is something other than the display, performance, communication, computation, manipulation and/or storage of audio, visual, audio-visual, analog or digital content, data or information. For example, a plush toy in the shape of a dog with electronic components which cause it to bark or walk would not be a product in the Sony Consumer Electronics Categories, but a television or DVD player or videogame console in the shape of a dog would be a product in the Sony Consumer Electronics Categories. 11.b(v) Marvel s Limited Right to License Items in the Sony Consumer Electronics Categories. 11.b(v)(A) General Rule No Licenses by Marvel/Permitted Exceptions. Marvel shall not have the right to exploit or license merchandising rights or Co-Promotions (Picture- Related, Series-Related, Classic or otherwise) in the Sony Consumer Electronics Categories with respect to the Property without SPE s consent, except that Marvel may license solely to Qualifying CE Licensees the right to manufacture and sell Qualifying Kids CE Products (but no other products in the Sony Consumer Electronics Categories), subject to, and only after complying in full with, SPE s right of CE First Negotiation and right of CE Last Refusal under Section 11.b(v)(C) with respect to each such proposed license. Notwithstanding any contrary 4
provision of this Agreement, Marvel may not at any time enter into any Marvel Ancillary Co- Promotion or Marvel Family Co-Promotion that involves any Tie-In Item that is in the Sony Consumer Electronics Categories. 11.b(v)(B) Definitions. The following terms have the following meanings: 11.b(v)(B)(1) A party is a Qualifying CE Licensee if the aggregate worldwide gross revenues of the proposed licensee and all of its direct and indirect Affiliates from the sale or other exploitation of any and all consumer electronics or computer products (including but not limited to televisions, home audio, DVD and Blu-ray players, personal audio and video, digital cameras, camcorders, electronic ebook readers, computers, tablets, headphones, car stereos and all related accessories) is less than US $500 million in each of such proposed licensee s three (3) fiscal years immediately preceding the date of the proposed license by Marvel to such party. 11.b(v)(B)(2) A Qualifying Kids CE Product means a product that meets all of the following qualifications: (a) The product is designed so that the entire exterior surface of the product (except for areas, such as display screens, where the function of the product would be materially impaired by the inclusion of character design elements) is covered by character-based molding and/or other permanently-affixed conspicuous physical design elements based on the Property that are integral to the construction of the product and are intended to appeal to children age 10 and under. It is the intention of the parties that in order to satisfy the requirements of this paragraph, the design of the product would have to be comparable to the products shown on Schedule 24 attached hereto (provided that in the event of any conflict between the products shown on Schedule 24 and the requirements/limitations set forth in this Section 11.b(v), the provisions of this Section 11.b(v) shall control). For the avoidance of doubt, the addition of coloring, webbing, stickers, decals or other design elements to a pre-existing generic product, without the addition of character design elements that conspicuously change the physical form of the product, would not satisfy the requirements of this paragraph. The foregoing is the Product Design Limitation. (b) The product is designed for, and intended to be used by, children age 10 and under. Therefore, the product must have limited features and functionality that are appropriate for such children and that are substantially less sophisticated than the features and functionality of products in the same product category that are designed to be used by teenagers and/or adults. The foregoing is the Product Sophistication Limitation. (c) The product is marketed primarily to children 10 and under, using marketing materials that appeal to children 10 and under, carried on media outlets viewed primarily by children 10 and under. The product is packaged in materials intended to appeal to children 10 and under. The foregoing is the Product Marketing Limitation. (d) The product must have MSRP price points appropriate for mass-marketed products designed to be used by children age 10 and under and must not be marketed as high-end electronics or at Manufacturer s Suggested Retail Price price points comparable to high-end electronics. The foregoing is the Price Point Limitation. 5
(e) Neither the product, nor its packaging nor any marketing materials relating to the product may display the name, brand, trademark or logo of any company other than Marvel, unless required by applicable law, in which event the name (but not the logo or trademark) of the Qualifying CE Licensee may appear on the product and/or its packaging and/or marketing provided that such name is in the smallest size and situated in the most inconspicuous place permitted by applicable law (e.g., on the bottom or base of the product so that the mark remains hidden in normal use, or on packaging materials, only (and not on the product), if permitted by law). The foregoing is the No Branding Limitation. (f) The product must not be any of the Restricted Product categories set forth on Schedule 25 (e.g., must not be a television larger than 20 inches diagonal screen size or a Game Console or a tablet computer device). 11.b(v)(C) SPE s Right of CE First Negotiation and CE Last Refusal. Marvel s right to license any Qualifying Kids CE Product to a Qualifying CE Licensee is subject to, and may be carried out only after first complying with, SPE s rights of CE First Negotiation and CE Last Refusal, as follows, with respect to each such proposed license, on a product-byproduct and territory-by-territory basis: 11.b(v)(C)(1) CE First Negotiation. SPE s right of CE First Negotiation means the following: Prior to engaging in any discussions or negotiations with any third party with respect to the possible licensing of any Qualifying Kids CE Product in any territory (or the re-licensing of the applicable Qualifying Kids CE Product in the applicable territory after the termination or expiration of any prior license of such product), Marvel shall offer ( Marvel s CE Offer ) in writing to negotiate in good faith exclusively with SPE regarding the mutually acceptable terms upon which the right to manufacture and sell such Qualifying Kids CE Product in such territory (the Subject CE Rights ) may be sold or licensed to SPE. If SPE gives Marvel written notice of SPE s desire to negotiate regarding Marvel s CE Offer within 10 days thereof, then during the period of 30 days following the date of Sony s notice ( CE Negotiation Period ), Marvel and SPE shall so negotiate in good faith. If SPE and Marvel reach agreement as to the Subject CE Rights within the CE Negotiation Period, SPE and Marvel shall promptly negotiate a written agreement conforming to the terms accepted by SPE. If SPE fails to give Marvel written notice of SPE s desire to negotiate regarding Marvel s CE Offer within that 10 day period, or Marvel and SPE fail to reach agreement as to the Subject CE Rights within the CE Negotiation Period, or if Marvel and SPE fail to enter into the written agreement within 30 days after the conclusion of the CE Negotiation Period, Marvel shall have the right to solicit offers for the Subject CE Rights, but may not conclude any license with any third party without first complying with SPE s right of CE Last Refusal. 11.b(v)(C)(2) CE Last Refusal. SPE s right of CE Last Refusal means the following: If after complying with SPE s right of CE First Negotiation under clause (1) above with respect to a particular Qualifying Kids CE Product with respect to a particular territory Marvel receives any bona fide offer (a CE Final Written Offer ) from a Qualifying CE Licensee (the Qualifying CE Offeror ) to license such Qualifying Kids CE Product in such territory on a basis that satisfies all the requirements and limitations of Section 11.b(v)(B)(2) and all of the other provisions of this Section 11.b(v), and Marvel proposes to accept such offer, Marvel shall notify SPE in writing accordingly ( CE Sales Notice ). The CE Sales Notice shall 6
set forth (A) the identity of the Qualifying CE Offeror, and (B) all of the following (collectively, the CE Terms ): (I) the applicable Qualifying Kids CE Product, (II) the applicable territory, (III) the applicable advance or minimum guarantee and the timing of such payment, (IV) the participation or royalty and the manner in which it is calculated (with reasonable specificity), and (V) all of the other material terms of such offer. SPE shall have the exclusive option ( CE Last Refusal Option ), exercisable by written notice to Marvel given at any time during the period of 10 business days following SPE s actual receipt of the CE Sales Notice, to acquire the rights set forth in the applicable CE Sales Notice upon the CE Terms set forth in the CE Sales Notice; provided that SPE may, at SPE s option, exclude from the CE Terms, and exercise the CE Last Refusal Option without agreeing to, (x) any Term(s) which may not be met as easily by one person as another and/or (y) any Term(s) relating to any Product Design Limitation, Product Sophistication Limitation, Product Marketing Limitation, Price Point Limitation and/or Product Branding Limitation. (For the avoidance of doubt, SPE s right to exclude CE Terms pursuant to the foregoing sentence is solely for SPE s benefit and does not relieve Marvel of the obligation to comply with the requirements and limitations of Section 11.b(v)(B)(2) in connection with each CE Final Written Offer and each license to any party other than SPE.) If SPE exercises a CE Last Refusal Option, SPE shall, upon payment to Marvel of that portion of the consideration specified in the CE Sales Notice as being immediately payable, automatically acquire the rights with are the subject of the applicable CE Sales Notice on the CE Terms set forth in the CE Sales Notice (other than CE Terms, if any excluded by SPE, as provided above). If SPE exercises a CE Last Refusal Option, Marvel shall execute and deliver to SPE such further instruments and documents as may be necessary to vest in SPE each and all of the applicable rights, although Marvel s failure to do so shall not adversely affect the vesting of such rights in SPE. The foregoing procedure shall apply to each bona fide offer from any Qualifying CE Offeror regarding any Qualifying Kids CE product. If SPE fails to exercise its CE Last Refusal Option, Marvel shall have the right for a period of 90 days thereafter to enter into an agreement with the Qualifying CE Offeror named in the CE Sales Notice (but no other party) upon the CE Terms set forth in the CE Sales Notice (or on terms more favorable to Marvel than those set forth in the CE Sales Notice). 11.b(v)(C)(3) Continuing Rights/Time Periods. The provisions of Sections 11.b(v)(C)(1) and 11.b(v)(C)(2) with respect to SPE s rights of CE First Negotiation and CE Last Refusal shall continue in full force and effect for the entire Production Period and SPE s failure to exercise any right of CE First Negotiation and/or CE Last Refusal with respect to any particular Qualifying Kids CE Product for any particular territory at any time shall not affect SPE s continuing rights of CR First Negotiation and/or CE Last Refusal with respect to any subsequent proposed license or other disposition of the same or any other rights with respect to the same or other Qualifying Kids CE Products. In the event SPE exercises any CE Last Refusal Option or enters into an agreement with Marvel pursuant to the CE First Negotiation described in 11.b(v)(C)(1) above (an Exercised CE Option ), Marvel shall not submit to SPE any other offer with respect to any of the rights that are the subject of the Exercised CE Option in the country or countries covered by the Exercised CE Option until 30 days prior after the expiration of SPE s rights pursuant to the license SPE acquired upon its exercise of the Exercised CE Option and, during said period, Marvel shall not negotiate with any other party with respect to (or license to any other party) any of the rights which are the subject of the Exercised CE Option. For purposes of SPE s rights of CE First Negotiation and CE Last Refusal, each of the time periods set forth above shall be automatically extended by a number of days equal to the 7
number national holidays in either the United States and/or Japan and/or the territory to which the CE Final Written Offer relates (including without limitation each of the days of Golden Week in Japan) which fall within the applicable period. For the avoidance of doubt, SPE shall have the right to assign any or all of its rights (and/or delegate any of its obligations) under this Section 11.b(v) to any Affiliate of SPE. 8
SCHEDULE 24 SONY CONSUMER ELECTRONICS CATEGORIES: PRODUCT DESIGN EXAMPLES Still/Video Cameras: Computer or Video Game Accessories: 9
Music Players and audio listening devices: Speakers/Speaker Docks: 10
TV/Monitors: Video Player: Blank Media Storage: 11
Digital Picture Frames/Viewers: Telephones/Telephone accessories (e.g., Bluetooth headsets): Clocks: 12
Electronics marketed as spy gear: Karaoke Machines/Voice Recorders/Microphones: 13
SCHEDULE 25 SONY CONSUMER ELECTRONICS CATEGORIES: RESTRICTED CATEGORIES (1) Televisions with screens measuring over 20 inches diagonally. (2) Tablet-style computers. (3) Any game console, whether home/location based or portable, that is capable of playing any game or other software that is imported into the device by or with the consent or authorization of a consumer (through download, streaming use of physical media or otherwise) ( Game Console ). 14