SPE Term Sheet (00088645-7).DOCX



Confidential Non-Binding Discussion DocumentSummary of Marvel / SPE Spider-Man DiscussionJune 2328, 2011Process: Nothing is binding until long-form is signedNo press, general public communications, and/or communications with customers or other third parties until mutually agreed joint statement and/or communications plan is agreed. Stay all litigation / arbitration effective immediatelyOverall: We are seeking an equitable and simple solution and a clean delineation and definition of roles and economics.SPE will have the freedom and flexibility to produce and market and distribute films. Marvel will cease to receive film license fees or any participation on film related revenues. Marvel will have the freedom and flexibility to manage and maximize the merchandise programs. SPE will cease to receive merchandise fees or any participation on merchandise related revenues. Economics and Terms: Upfront: Marvel shall pay SPE $175MM. Backend: Marvel shall pay SPE a straight proration up to (and not to exceed) $35MM based on a sliding scale on WWBO of up to $1B on each future initial Spider-Man film release (excludes re-releases). (E.g. WWBO divided by $1B multiplied by $35MM = payment). Specific WWBO language to be discussed in long-form to address potential of in-home viewing during theatrical window and include those revenues in determining WWBO -TBDBackend Cap: The backend payments shall be capped at $130MM per 10 year period.Marvel Participation: Marvel shall not participate in the Spider-Man film revenues (box office and home video), music, and SPE promotions or co-promotions or SPE’s Ancillary merchandise licensees.SPE Participation: SPE shall not participate in Spider-Man merchandising, Marvel movie or non movie or Marvel family promotions or co-promotions.Mutual Release: Mutual release for all claims or participations based on the Agreement prior to this deal. Note: Marvel is agreeing to the above in exchange for SPE returning a positive answer on either: (a) Marvel’s consumer electronics licensing rights; and/or (b) talent likeness; and/or (c) something else to be proposed by SPE. Merchandise Approvals and Controls: Marvel shall be autonomous and have full control over the Classic and Film merchandise program. SPE will have a good faith consultation right to review film merchandise. Film Approvals and Controls -- General: SPE is seeking a relaxation on the current approval and controls and move towards the concept of consultation. Submission requirements would be removed. Marvel would have consultation rights only. As a general matter, SPE would agree that, to the extent that Core Elements are depicted in a film, SPE would not “materially” deviate (or would not “Materially and Meaningfully” (TBD definition) deviate on certain Core Elements, as noted later in this document) from the Core Elements listed below. If SPE materially deviates from Core Elements, and Marvel puts SPE on notice of the deviation promptly after Marvel is provided with the relevant materials, Marvel’s sole remedy shall be limited to claims for money damages to the Spider-Man brand. Marvel would have no right to obtain injunctive or other equitable relief of any kind for SPE’s allegedly wrongful exploitation of Spider-Man (e.g., an alleged failure to conform to Core Elements). Marvel would not be able to enjoin SPE’s production, distribution, or advertising of Spider-Man Pictures or Television Programs and SPE would not be able to enjoin Marvel’s merchandising activities. For the avoidance of doubt, SPE would retain the right (in contract and at law) to seek to enjoin Marvel from producing or authorizing a non-SPE film that includes Spider-Man (or any other element(s) of the Licensed Property) and Marvel would retain the right (in contract and at law) to seek to enjoin SPE from producing a film that includes Marvel IP (e.g., Iron-Man) that is not part of the Licensed Property, but Marvel’s sole remedy for SPE’s exploitation of the Licensed Property in a way that fails to conform to Spider-Man’s Core Elements (powers, costumes, etc.) would be money damages. In no event shall Marvel have the right to terminate, cancel, rescind, suspend or otherwise interfere with SPE's continuing exploitation of the Licensed Property and in no event SPE have the right to terminate, cancel, rescind, suspend or otherwise interfere with Marvel’s continuing exploitation of the Retained Rights and merchandising activities. Notwithstanding the foregoing, a departure from the Core Elements marked with a double asterisk “**” (e.g., he does not use illegal drugs) shall not in any case be permitted and Marvel shall be entitled to seek injunctive relief for any such departure. APPROVED CHARACTERS. SPE holds exclusive film rights to all characters in the Spider-Man universe. In an effort to avoid ambiguity the parties will agree on a list of Marvel characters that already exist and are in the Spider-Man Universe. "Approved Characters" that are being licensed by Marvel to SPE means all characters appearing on the agreed list plus "New Characters," as described below. The following applies with respect to the depiction of Approved Characters:SPE has no creative obligations or limitations, and Marvel has no approval rights, of any kind with respect to character traits, origin story, powers, costume or any other matters with respect to any Approved Character (even those that have “spider” in their name like the Spidercide clones) other than Spider-Man (and his alter-ego(s) such as Peter Parker). SPE has exclusive: (i) motion picture rights; and (ii) live-action television rights (to the extent currently provided for in the existing agreement) with respect to all Approved Characters. Approved Characters cannot appear in any other motion picture produced or authorized by Marvel. For example, SPE has the right to include Spider-Girl, Venom, etc. in its films and Spider-Girl, Venom, etc. cannot appear in non-SPE films. If Marvel does not have all rights in an Approved Character (e.g., Spider-Boy, which is a mash-up of Spider-Man and Superboy, which is controlled by DC Comics), then such Approved Character shall be frozen.For the avoidance of doubt, there is no limitation on SPE's right to include in Spider-Man motion pictures new characters created by SPE, including characters with super-human powers and abilities. SPE has the right to create new characters with Spider-Man-like name, powers, and costumes as currently provided for in Section 11.c. Marvel will have merchandising and publishing rights in the SPE-created characters until the expiration of SPE’s production rights.The Approved Characters shall not include Spider-Man or any other character included in the Property as combined with any Marvel character not in the Property (e.g. , a character which is a combination of Spider-Man and Hulk) (“Cross-Family Mash-Up Characters”). Theatrical and live-action television rights to Cross-Family Mash-Up Characters will be Frozen. Agreed List of Characters: In addition to the list of Approved Characters referenced here, a simple “rule” will be included in the long-form making it clear that SPE’s grant includes all characters in the Spider-Man Universe such that if a certain character (e.g., Rhino) were inadvertently left off the list, he would not be unintentionally excluded from the grant.The parties have made good progress on creating a current list of Approved Characters. The parties have agreed to split up the following major characters (and the incidental minor characters related to such major characters) as follows: Kingpin and all Villains related to Kingpin (Marvel will rep and warrant to the status of Kingpin; SPE also requests more info on the Fox rights now) – SPE is granted the rights to Kingpin and all villains related to Kingpin subject to the exclusive Daredevil grant to Fox (thus SPE is frozen from using Kingpin and all villains related to Kingpin and Fox may use such characters) [Need to discuss Kingpin villains in advance of reversion, particularly those that clearly related to Spider-Man.]. However, if the exclusive Daredevil universe grant to Fox reverts to Marvel or at anytime Kingpin is no longer subject to the Fox grant, then Kingpin shall be shared, meaning SPE can use Kingpin in Spider-Man movies only, Marvel can use Kingpin in Daredevil movies only. In the case of reversion and shared rights, both parties would provide the other reasonable notice before using Kingpin. The treatment of any villain related to Kingpin upon reversion from Fox is TBD (either shared as above or exclusive to SPE). Marvel Retained (due to rights issues):Ben UrichBaacheEthan Edward / VirtueGolden HordeWilliamWorld Habitual OffendersRandolph Winston CheeryDr. Armstrong SmithMarvel also retains:CloakDaggerPunisherJigsawSpeedballPhil SheldonSPE gets:Silver Sable and associated charactersWild Pack TinkererThe RoseMorbius and his relationsassociated charactersEmpire State UniversityEmpire State Hospital The DentistThe Daily BugleJessica Drew: Jessica Drew is “shared” with constraints. Marvel cannot portray Jessica with any “Spider” elements. No Spider powers. No “Spider” in her name. Costume is not “Spider-Man-like”. [TBD] if same approach for Julia Carpenter and Arachne. Deviant Variants: Spider-ham, Zombie Spider-Man, all “What If” variants, and other deviant variations [TBD] will be frozen. Note: If SPE gets a major character, they will also get the associated characters (henchmen, etc.). The parties shall work through splitting up the few remaining characters at issue. To that end, Marvel will share a revised list of Approved Characters and agree to discuss in good faith any remaining characters which are in dispute. New Characters: With respect to new characters (i.e., characters first appearing after the date of the parties’ new amended and restated agreement becomes effective, the “Agreement Effective Date”), the exclusive rights granted to SPE in the Property shall extend to and specifically include all new characters which first appear in any New Authorized Work which has in its main title “Spider”, “Spider-Man”, “Peter Parker” or the name of another Approved Character. The exception to the preceding sentence shall be for New Authorized Works that have “Spider”, “Spider-Man”, “Peter Parker” or the name of another Approved Character and a character not exclusively granted to SPE (e.g., a team-up book and/or a television series such as Astonishing Spider-Man and Wolverine) in the main title which shall not be included in the Property. Notwithstanding the foregoing, the property entitled Immortal Weapons - Bride of the Nine Spiders is not considered part of the Property. In addition, the exclusive rights granted to SPE in the Property shall extend to and specifically include all new characters created by Marvel in New Authorized Works which either: (a) shoots webs; or (b) has “Spider” in their name; or (c) has a spider on the costume; or (d) has a spider web on the costume; or (e) costume is [TBD] something between “similar to” or “virtually the same as” – let’s discuss “the general public would say the costume for the character Marvel created looks like Spider-Man. “Existing Authorized Work” means any comic book, motion comic, animation, television series, motion picture, console videogame, or Meaningful Casual Game published, produced or authorized by Marvel before the Agreement Effective Date. “Meaningful Casual Game” shall mean [TBD-based on multiple versions released, units sold and/or number of users].“New Authorized Work” means any comic book, motion comic, animation, television series, motion picture, console videogame, or Meaningful Casual Game published, produced or authorized by Marvel or any Marvel company affiliate (in the case of affiliates, provided that the work is part of the Spider-Man Universe) after the Agreement Effective Date. “Meaningful Casual Game” shall mean [TBD-based on multiple versions released, units sold and/or number of users]. Merchandise: Blackouts: All merchandising Blackout/restrictions will be eliminated and replaced with a loose commitment for Marvel to develop and execute a Spider-Man film merchandising program in the time period around the initial release of each Picture.Retail: Marvel shall have the sole right to manage the retail relationships for the film merchandise and shall structure programs to benefit the licensees. Marvel and SPE agree that in order to maximize the retail opportunities for the merchandise and the film, the parties need to collaborate and partner when and where appropriate. SPE’s consumer products (or similar) marketing team shall, where appropriate and reasonable, make themselves available for retail meetings upon Marvel’s reasonable request. Marvel’s consumer products team shall, where appropriate and reasonable, make themselves available for retail meetings upon SPE’s reasonable request. Solely for consultation and not approval, SPE and Marvel each agree to regularly and in advance share information related to Marvel’s general retail plans for movie merchandise and general plans for SPE’s movie co-promotions. SPE agrees to regularly and in advance share with Marvel the following information when available: strategy and target lists and general terms (media and marketing support/spends, territories, pack-outs, exclusivity, marketing plans, etc,…). Marvel agrees to regularly and in advance share information related to how/when/where the Spider-Man movie CMF spends are intended to be spent and provide specifics of actual CMF expenditures once spent. Access to Materials: SPE shall continue to provide Marvel access to film materials, assets, scripts, marketing materials, clips, sizzles, updates, and the like based on the list and timeline attached to this document. Those materials cannot be included by Marvel or its Marvel’s licensees in merchandise (or in any marketing, advertising or promotional materials) available to the public prior to the dates set forth on attached schedule regarding Public Availability of Assets. As a clarification, Marvels confidentiality obligations for scripts etc. would also remain in place. Scripts, etc. cannot be made available to anyone outside Marvel (with the exceptions listed on the Asset Delivery Timeline Schedule). Marvel shall create the style guides for use in the Spider-Man merchandising program and SPE shall have the right to consult, but not approve the style guide. If SPE fails to produce assets by the defined timeline, Marvel would have the right to seek damages. Line Reviews: Marvel shall provide SPE bi-annual line reviews of the movie license products for SPE’s consultation, but not approval. Product Categories - Licensing and Co-Promotions: 5 Categories: Note: Consumer Electronics is TDB and dependent upon Michael Lynton’s discussions.Consumer Electronics: SPE Executions - SPE shall have the right without restriction (including on execution of ancillary merchandise licenses) to conduct Spider-Man movie marketing and promotional executions in connection with all electronics made by Sony Electronics including, but not limited to, Playstation, or other Sony console video game hardware (“Sony Electronics Promotions”). SPE’s window for use of Spider-Man movie assets in its Sony Electronics Promotions will be of a length TBD -but longer than the 24 Month SPE Co-Promotion Window. SPE shall not be required to paper a deal (i.e., no need to obtain any specific terms) between the SPE affiliated companies with respect to Sony Electronics Promotion executions and no “call to action” for the film shall be required.Marvel Executions: Grant Marvel the right to license in Consumer Electronics with these constraints[Give Sony right of first and last refusal (with 90 days to respond – SPE may need longer, sorting internally)If Sony does not do the deal itself, any license Marvel cuts must:Be below a certain price point ($TBD)Be non-brandedTargeted at “kids,” [how do we define? Less than 10 years old?] (not “young adults,”) including characteristics such as being character molded][SPE to examine internally] Note: Marvel to consider and advise of some examples of items it expects (as of June 2011) to license. ) [SPE requests a specific list of all eligible categories.] SPE Exclusive: SPE shall have exclusive rights to execute co-promotions for the following categories and Marvel shall be prohibited from licensing merchandising or entering into co-promotions (including Marvel Family co-promotions) or sponsorship deals in these categories at any time. SPE Exclusive Promotional Window shall be a period beginning 12 months prior to the release of each picture until 12 months after. The SPE Exclusive Categories are: Carbonated Soft Drinks (e.g. Pepsi)Quick Serve Restaurants (e.g. McDonalds) and pre-made foods at non-QSR stores [definition TBD. Would not pre-empt lunchables. Would pre-empt foods that are meant to be eaten immediately and compete with QSRs]Airlines (e.g. Virgin) InsuranceTelephone service providers (e.g., Verizon) We need clarify that this does not prohibit Marvel from licensing or structuring content distribution agreements with operators who act as “retailers” or aggregators of the content. [Note: SPE is open to clarifying, need to sort specific language]Auto (e.g. Audi) (excluding accessories)Branded Sugar Confectionary and Branded Chocolate, e.g. Wrigley’s Starburst and Hershey’s Twizzlers (including but not limited to liquorice, lollipops, hard candy, candy bars, jelly candies, etc.) Marvel shall be permitted to license non-branded confectionary and branded novelty (e.g. PEZ) confectionary and non-branded chocolate and branded novelty chocolate. Non-branded means that the name of the manufacturer/distributor/brand is displayed in a non-prominent manner so that the Marvel logo or character trademark is equally or more prominent than the confectionary or chocolate brand. Premiums Guidelines: are listed below in Exhibit PR. SPE shall make a good faith effort to avoid allowing premiums which would conflict with a Marvel exclusive licensee. TBD – price/value limitations.Marvel Exclusive: Marvel shall have exclusive rights to structure merchandise licensing deals and co-promotional deals (subject to the Marvel Promotional Rights note below) for all goods previously listed on “Schedule 7” and now listed below as “Marvel Exclusive Categories Previously Included on Schedule 7” as well as “Chocolate Novelty Items.” Marvel can conduct film-related, classic merchandising and co-promotions (subject to the Marvel Promotional Rights note below) in these Marvel Exclusive Categories at any time, with no windows or blackouts. SPE shall not be permitted to seek or enter into co-promotions for these categories at any time except with Marvel’s consent. The Marvel Exclusive Film Co-Promotional Window shall mean the period 9 months prior through 6 months after release of a Picture. Windowed: SPE shall have exclusive rights to execute co-promotions for “Windowed Categories” and Marvel shall have exclusive merchandising rights to Windowed Categories but shall be prohibited from licensing merchandising deals SPE’s Exclusive Window (the period from 12 months prior to the release of each picture until 12 months after the release of each picture). Windowed Categories would include:Bakery SnacksCrackersGum and MintsPastries and Doughnuts (Marvel can do non-branded)Granola Bars (Marvel can do non-branded)Shared: All other categories of goods shall be shared by Marvel and SPE. Marvel can conduct a classic and/or film merchandising license and co-promotional deals (subject to the Marvel Promotions note below at any time. Marvel and SPE can conduct film-related co-promotions in these categories only during the Shared Exclusive Co-Promotional window which is a period beginning 12 months prior to the release of each picture until 12 months after. For the avoidance of doubt, internet, mobile or social games / applications will be a “Shared” category. SPE shall have the right to make internet, social, and/or mobile promotional games and applications available at no charge to consumers to promote the Film, limited to the Shared Exclusive Co-Promotional window of 12 months prior to the release of each picture until 12 months after. Marvel will retain the right to license internet, mobile and social games and applications. Marvel may give away free levels under the “freemium” model. But Marvel cannot give away Spider-Man promotional games (i.e., games or levels that promote anything other than the game itself) during the Shared Exclusive Co-Promotional window (i.e., the period 12 months prior through 12 months post release of a Picture). Synergy: Marvel and SPE shall endeavor, where appropriate and feasible, to introduce and include the other party to its respective film merchandise licenses and/or film co-promotion relationships in efforts to allow for co-promotional overlays for film merchandise licensees and merchandise license overlay for film co-promotional partners. Marvel Promotional Rights: Marvel shall have the following promotional rights:Non-Movie (i.e., “Classic”): Non-Movie co-promotions in the Marvel Exclusive Categories may run outside of the Marvel Exclusive Window (i.e., 9 months prior through 6 months after release of a Picture). Non-Movie co-promotions in the Shared Categories may run outside of the Shared Co-Promotional Window (i.e., 12 months prior to the release of each picture until 12 months after).Marvel Family Co-Promotions: Marvel Family Co-Promotions may run at any time, but are limited to the Marvel Exclusive and Shared categories only (thus excluding the SPE Exclusive and Windowed Categories). If Marvel structures a Marvel-Family Co-Promotion (including Spider-Man as one of the characters) which runs into Marvel Exclusive and/or Shared Co-Promotional Window the co-promotion partner shall for the respective exclusive period shall either a) conduct a Spider-Man only film co-promotion or b) if such co-promotion partner does not conduct a Spider-Man film co-promotion, then the co-promotion partner shall remove Spider-Man classic from the Marvel Family Co-Promotion until the respective Marvel Exclusive and/or Shared Co-Promotional Window expires. (TBD language to ensure the film co-promotions are legitimate) Spider-Man Movie Licensees and Co-Promotional Overlays: Marvel may structure film co-promotions in the Marvel Exclusive and Shared categories during the Shared Co-Promotional Window (i.e., 12 months prior to the release of each picture until 12 months after) provided they are overlays to a Spider-Man movie merchandise license agreement (i.e., the co-promotion cannot be independent of the licensing deal). Marvel cannot structure film co-promotions in the SPE Exclusive and Windowed Categories at any time.Note: If Marvel wishes to pursue an opportunity to structure a film co-promotion, albeit through a Marvel family co-promotion or through a Spider-Man Movie Licensee Co-Promotional Overlay, Marvel shall negotiate the co-promotion’s key terms and SPE would be responsible for documenting and executing the co-promotion and SPE may not change the key terms negotiated by Marvel. Note: TBD discuss mechanism to address terms that are not reasonably possible to perform (e.g., walk-onNote: Other than as provided above Marvel may not structure film co-promotions other than as provided above and may not structure “pure” film promotions at any time.SPE Ancillary Merchandising Licenses: SPE will continue to have the right to authorize ancillary merchandising licenses in connection with co-promotions conducted by SPE in the SPE Exclusive and Windowed Categories only. Ancillary merchandise licenses structured by SPE must be extensions of a product that which is a part of a film co-promotion (e.g., if Orville Redenbacher is a co-promotional partner and pop-corn is the promoted product, the ancillary merchandise license shall be limited to pop-corn (by way of example, red and blue “Spidey Popcorn”)). If SPE wishes to pursue an opportunity to structure an ancillary merchandising licenses in connection with co-promotions conducted by SPE within SPE’s Exclusive and Promotional Window (12 months prior and 12 months post film release), SPE shall negotiate the ancillary merchandising license key terms and Marvel would be responsible for documenting and executing the license and Marvel may not change the key terms negotiated by SPE. Film Reversion: The same reversion periods as today except, no rights fee payment and if Sony releases 3 pictures in 8 years, the window is then extended to 7 years for the next film [Note: discuss what happens if a 4th consecutive picture is released without utilizing the “rest” / extended period and then wishes to utilize it]. Clarify Contract Language: Once there is agreement in principle in the fundamental business points discussed in this Summary, the parties shall discuss clarification of any technical contract language that has been the subject of disputes in the past. DETAILED PROPOSALS REGARDING FILM APPROVALS/CONTROLS/CREATIVE REQUIREMENTSNOTE: Modification to Section 13 that include many of the elements suggested by Marvel in its proposed contract language with, the following points:Marvel’s designated individual will not have access to sets or creative meetingsAnything not timely objected to by Marvel is deemed approved by Marvel, once and for all, and Marvel cannot later object to that element.Period for Marvel to respond is shorter during active pre-production and productionClarify there is no obligation for SPE to depict all core Elements in any particular picture.With respect to “Spider-Man Character Traits and Origin Story” (listed below) SPE would not be in breach unless it depicts them in a way that materially [we didn’t discuss in our meeting on Jun 21 but understand a standard is needed. SPE is reviewing “materially” for these traits] deviates from the manner in which those elements are described below. If SPE fundamentally deviates from a Core Element, and Marvel puts SPE on notice of the deviation promptly after Marvel is provided with the relevant materials, SPE would be in breach but Marvel’s sole remedy would be a claim for damages to the Spider-Man brand except for a departure from the Core Elements Spider-Man Character Traits and Origin Story marked with a double asterisk “**” (e.g., he does not use illegal drugs). Marvel’s right to injunctive or other equitable relief of any kind would be eliminated except for a departure from the Core Elements marked with a double asterisk “**” (e.g., he does not use illegal drugs). CORE ELEMENTSSpider-Man Character Traits and Origin Story:His full name is Peter Benjamin Parker.** He is a heterosexual male. He is Caucasian.His parents become absent from his life during his childhood.From the time his parents become absent, he is raised by his Aunt May and Uncle Ben.He is raised in a middle class household in Queens, New York, attends or attended high school in Queens, New York and attends or attended college in New York City, New York.He gains his powers during the period while he is attending middle, high school, or college student as a result of being bitten by a spider.He designs his first red and blue costume [Note: black costume is a symbiote and is not designed by him].** He does not deliberately torture. He does not deliberately kill humans other than in defense of self or others. [This term does not apply to actions attributable to the black/symbiote suit provided the foregoing activity in undertaken while in the black /symbiote suit]]** He does not use foul language beyond what is permitted in a PG-13 rated film. ** He does not smoke tobacco. He does not use or sell/distribute illegal drugs. He does not abuse alcohol. [This term does not apply to actions attributable to the black/symbiote suit provided the foregoing activity in undertaken while peter parker is in the black /symbiote suit]** He does not engage in sexual relations before the age of 16 or with anyone below the age of 16.Note: If SPE depicts Spider-Man or any Alternative Version of the Spider-Man character (e.g., Spider-Man 2099), any traits marked with a double asterisk ** will apply. For clarification, when SPE uses an Alternative Version and portrays powers associated with that Alternative Version that are not included in the Approved Powers, it must: (i) use the Alternative Version’s name (e.g., Miguel O'Hara); (ii) use such Alternative Version’s applicable costume; (iii) use such Alternative Version’s Approved Powers; and (iv) take place in the time (e.g., 2099 for Spider-Man 2099) and have the same primary location (e.g., Earth for Spider-Man 2099) . Regardless but the Production shall not be otherwise required to use the Alternative Version’s origin story or basic origin elements (although use of such Alternative Version’s origin story and basic origin elements are encouraged by Marvel). As used herein, “Alternative Version” shall mean: (i) the alternative versions of Spider-Man listed on Exhibit A-1; and (i) any alternative version of Spider-Man (i.e. not Peter Parker) (other than an Incidental Depiction of an alternative version) depicted in any Existing Authorized Work or New Authorized Work. “Incidental Depiction” shall mean a depiction inunless only depicted: (a) fewer than 6 successive issues of comic books or motion comics; or (b) less than 2 multi-issue story arcs of comic books or motion comics and not otherwise depicted in any Authorized Work. Spider-Man’s Core Powers and Abilities:I. Core Powers and Abilities (with the powers listed in this section I being sometimes referred to as the “Listed Powers” and the Listed Powers together with the New Powers collectively the “Approved Powers” or Spider-Man’s “Core Powers and Abilities”):Spider-Sense. Spider-Man’s Spider-Sense alerts him to hidden threats and danger. This precognitive ability helps him to act instinctively, avoiding danger and the impact from objects (fists/feet, bullets, moving objects, environmental risks, etc) as well as warning him of disguised enemies. Spider-Man’s Spider-Sense also assists in his accuracy when operating his web-shooters and can act like radar in the darkness or if Spider-Man is blinded. He is also able to detect certain radio frequencies (used for his Spider-tracers). Spider-Sense also warns Spider-Man/Peter Parker of possible danger to or exposure of his secret identity and warns him of danger to those to whom his is emotionally attached (e.g., Aunt May, Mary Jane or Gwen) or to those in his reasonable proximity (e.g., within the city he is in or cross-town but not City to City or furtheraround the world). It is permissible to depict a visual or audio manifestation of Spider-Man/Peter Parker being warned by his Spider-Sense (e.g., eyes turn green, twitching ears or buzzing sound). Super-Human-Strength. Spider-Man has the proportionate strength of a spider. This means he can lift or press approximately 10 tons. Spider-Man’s Spider-Strength allows his attacks against foes to be far more damaging than a normal human being. Super-Human-Jumping Ability. Spider-Man has the proportionate jumping ability of a spider. This means he can jump vertically approximately 5 stories (approximately 50 feet) and/or horizontally approximately the length of a city block (approximately 264 feet).Super-Human-Agility. Spider-Man has superhuman agility. This means he can maneuver his limbs and joints at speeds and angles and with flexibility greater than that of an Olympic level athlete or contortionist and with a faster reaction time than a normal human being. Spider-Man’s Agility gives him the ability to dodge bullets and acrobatically maneuver himself around opponents and dangerous objects.Super-Human Speed and Reflexes. He is able to run at superhuman speeds for short distances (e.g., can overtake speeding cars) and has reflexes so fast that he can evade bullets – even from automatic weapons.Super-Human-Durability. Spider-Man possesses superhuman durability. Spider-Man can be injured as any other human being, however as a result of his superhuman durability he is able to withstand severe punishment. Injuries which would be fatal or result in broken bones in normal human beings are not fatal and do not break Spider-Man’s bones. Super-Human-Metabolic Efficiency and Endurance and Healing Power. Spider-Man possesses superhuman metabolic efficiency and endurance. Spider-Man’s superhuman endurance allows for extended periods of physical and mental exertion. His accelerated metabolism increases his tolerance to toxins, meaning a larger dose is needed to cause the intended effect and he recovers from the effects quickly. Spider-Man is capable of healing injuries faster and more extensively than ordinary humans, but is not invulnerable and can be hurt badly (e.g. a gunshot). Although he is still affected by disease and infection his recovery time is typically shorter than that of an ordinary human. He is even able to overcome what would seem to be permanent diseases, such as blindness or vampirism. Super-Human Spider Metamorphoses. Spider-Man is vulnerable to further metamorphoses in which he might take on additional properties of a spider, such as growth of additional arms, development of spinnerets, etc. Super-Human-Adherence. Spider-Man is able to stick to walls or ceilings and stick/climb on almost any surface. His Spider-Adherence allows for him stick to a surface as easily as most people can walk on the ground. Super-Human Webbing. Spider-Man possesses organic or artificial web shooters which allow him to shoot strong adhesive webbing. Spider-Man’s webbing allows him to swing from buildings, tie up villains, safely catch falling bystanders and use the fluid in various configurations for props and structures (such as shields, thrown balls, parachutes, trampolines, hang-gliders, etc.). Like a real spider, Spider-Man can feel vibrations in his web lines. He can use webbing between the arms and torso of his costume to glide or soar for long distances (like a hang-glider). Super-Human-Balance. Spider-Man has superhuman balance and coordination and can maintain his equilibrium better than an Olympic level gymnast.Super-Human-Fighting Skills. Spider-Man combines all of his Core Power’s and Abilities to create a unique superhuman improvisational acrobatic freestyle fighting style that functionally encompasses the usage of his strength, speed, flexibility, wits, intelligence, and his "spider-sense", in order to work his strengths against his opponents' weaknessesImproved Vision. When Peter Parker is transformed into Spider-Man, he no longer needs glasses and has 20/20 vision.Intelligence. Peter Parker has extremely high intelligence with a significant focus on engineering, math, and the sciences and is also a gifted inventor and photographer. He also demonstrates a strong sense of humor. Additional Powers of Symbiote Black Costume. When Spider-Man/Peter Parker is wearing the symbiote black costume all of the foregoing powers are enhanced (e.g., he has greater strength, agility, etc.) and he also has the following additional powers: the ability to instantaneously change from street clothes to black Spider-Man costume and an inexhaustible supply of super-strong organic webbing, etc.Additional Powers of Other Approved Alternative Versions. An Alternative Version of Spider-Man may be portrayed by SPE as having further super-human powers (in addition to the powers listed above) that such Alternative Version of Spider-Man: (i) has been depicted as having in any Marvel work prior to the Agreement Effective Date; or (ii) is depicted as having in any New Authorized Work (that is not an Incidental Depictionunless that power is depicted (a) fewer than 6 successive issues of comic books or motion comics; or (b) less than 2 multi-issue story arcs of comic books or motion comics). By way of example only, when using in a Production the Alternative Version of Spider-Man, Spider-Man 2099, SPE may depict Spider-Man 2099 as having any and all additional powers that Spider-Man 2099 has been depicted as possessing in a Spider-Man 2099 comic book or other work but could not appropriate powers unique to Spider-Man 2099 and apply them to the contemporary classic Peter Parker version of Spider-Man. Additional Powers of Named Costumes or New Costumes. If a Named Costume or New Costume (as defined below): (i) has been depicted as having in any Marvel work prior to the Agreement Effective Date; or (ii) is depicted as having in any New Authorized Work (unless that power is depicted (a) fewer than 6 successive issues of comic books or motion comics; or (b) less than 2 multi-issue story arcs of comic books or motion comicsthat is not an Incidental Depiction) further super-human powers (in addition to the powers listed above), then while SPE may depict the Peter Parker Spider-Man or any Alternative Version in such Named Costume or New Costume (as applicable), further super-human powers associated with the such Named Costume or New Costume can only be utilized by the Alternative Version of Spider-Man that is depicted as wearing the applicable Named Costume or New Costume in the relevant Marvel-authorized work. For example, both Peter Parker and Miguel O’Hara may be depicted in a Picture wearing a Spider-Man 2099 Costume, but only Miguel O’Hara may be depicted as using the additional super-human powers associated with the Spider-Man 2099 Costume and Peter Parker in the Spider-Man 2099 Costume cannot be depicted using such additional super-human powers.?If Spider-Man (as opposed to an Alternative Version) is depicted in the relevant Marvel-authorized work as wearing the applicable Named Costume or New Costume, then further super-human powers associated with the such Named Costume or New Costume can only be utilized by Spider-Man (as opposed to any Alternative Version). [SPE requests that Marvel please clarify the intent of the last shaded clause.] II. SPE is Under No Obligation to Depict in a Picture All of Spider-Man’s Approved Powers - There is no obligation for SPE to depict all of Spider-Man’s Approved Powers in any particular Picture. SPE shall have the right to depict as many, or as few, of Spider-Man’s Approved Powers in any particular Picture as SPE determines (in its sole discretion). III. Depiction of Listed Powers and/or New Powers Based on Examples in Marvel-approved WorksSPE would have the right to depict each Listed Power and/or each New Power in any way that does not materially [SPE reviewing the “material” standard for powers. Need to revisit further once Marvel confirms view on Approved Powers being displayed –in-line with both New Approved Works and Existing Approved works] deviate from any depiction of the applicable power(s) in any Existing Authorized Work or New Authorized Work provided, however that SPE shall not have the right to depict an Incidentally Depicted Power that is depicted (a) fewer than 6 successive issues of comic books or motion comics; or (b) less than 2 multi-issue story arcs of comic books or motion comics if it is not a Listed Power. As used herein, a “New Power” shall mean a new power Spider-Man is depicted as having in any New Authorized Work that is not an Incidental Depictionunless that power is depicted (a) fewer than 6 successive issues of comic books or motion comics; or (b) less than 2 multi-issue story arcs of comic books or motion comics. In other words, any manner in which a Listed Power or a New Power is depicted in any New Authorized Work other than an Incidental Depiction (unless that power is depicted (a) fewer than 6 successive issues of comic books or motion comics; or (b) less than 2 multi-issue story arcs of comic books or motion comics) would be fair game; and SPE would not be in breach as long as its portrayal of the applicable power does not materially deviate from the portrayal of that power in the Marvel Aauthorized Wwork. For example, if an episode of New Marvel Animation portrays Spider-Man as being able to (i) use his Spider Sense to sense vibrations or “see” when blinded, or (ii) lift 25 tons (rather than the 10 tons listed above), then SPE may depict these this items in its Pictures and/or live-action television series. IV. Depiction of Logical ExtensionsSPE would have the right to depict Spider-Man as having any power that is a logical extension of one or more Listed Powers or New Powers. For example, if Spider-Man has “Improved Vision,” “Super-Human Speed and Reflexes,” and “Intelligence,” SPE would have the right to depict Peter Parker as being able to speed read as a logical extension of those abilities.V. SPE is Under No Obligation to Depict Spider-Man’s Approved Powers at Full Strength - SPE shall have the right to depict any of Spider-Man’s Approved Powers in any particular Picture at up to full strength and/or as having any lesser strength as SPE shall determine (in its sole discretion) is appropriate. By way of example only, if one of Spider-Man’s Approved Powers is the ability to lift approximately 10 tons, his failure to be able to lift 2 tons (whether due to exhaustion, that his powers have not fully matured, or otherwise) in any particular Picture or part thereof shall not be considered a deviation from Spider-Man’s Approved Powers. VI. Spider-Man’s Approved Powers Apply to Peter Parker as Well – Spider-Man’s powers apply to Spider-Man’s civilian identity, Peter Parker, as well. Each Alternative Version’s powers apply to the applicable civilian identities of such Alternative Version. For example, Miguel O’Hara would share Spider-Man 2099’s powers. All civilian identities generally hide these powers from the public. VII. Other Powers and Abilities - Spider-Man’s Approved Powers are as set forth in this Exhibit. Except for Spider-Man’s Approved Powers listed herein, Spider-Man’s physical makeup is that of a normal human being and he does not have any other superhuman powers and abilities. Spider-Man’s Approved Costumes: When Spider-Man is in his full costume, it must be one of the following “Approved Costumes”:(a) primarily red and blue (or red and black with blue highlights, which was essentially the color scheme in the original 1962 comic book), form-fitting, with a Spider insignia on the front and/or back. [Note: need not conform to the design of any particular past red and blue costume.] (b) primarily black and gray, form-fitting, with a Spider insignia on the front and/or back (the “symbiote costume”) [Note: need not conform to the design of any particular past black costume.](c) any costume that is not Materially and Meaningfully Different from one of the costumes on the agreed list of “Named Costumes” that were used or authorized by Marvel in prior works (below). As used herein, “Materially and Meaningfully Different” means [TBD between material and fundamental-exact standard TBD by the parties], or (d) any costume that is not Materially and Meaningfully Different from any new costume that Spider-Man is portrayed as wearing in any New Authorized Work that is not an Incidental Depictionunless that costume is depicted (a) fewer than 6 successive issues of comic books or motion comics; or (b) less than 2 multi-issue story arcs of comic books or motion comics (each, a “New Costume”). “Named” Costumes and Alternative Versions (pictures attached): [Note: SPE just combined the lists. We haven’t added anything here. Although we need to continue to vet this list.]Ben Reilly/Scarlet SpiderCommando Spider-Man 2099Cyber-Spider Earth X Spider-ManGuardianInsulated costume / Electro SuitKaineMan-SpiderMillenial Visions (Marvel Universe Appendix)PoisonSpider-ArmorSpider-CarnageSpider-LizardSpider-Man 2020Spider-Man 2099Spider-Man 2211Spider-Man impostersSpider-Man IndiaSpider-Man MegaMorphSpider-Man NoirSpider-VenomThe Future FoundationThe Spider from ExilesThe Spider/Peter ParquahWrestling Costume in Amazing Fantasy #15Other Issues and Considerations:Talent Likeness and merchandise participation. [SPE to be responsible for getting merchandising name, voice and likeness rights from talent and SPE to bear any royalties in excess of 5% reducible to 2.5%. For clarity, likeness shall not include any masked versions of Spider-Man or the other Approved Characters. ] [SPE to examine internally] Talent arrangements shall not restrict in any manner the use of talent’s voice or likeness in any item or any category of merchandise other than: (i) alcohol; (ii) tobacco; (iii) non-toy firearms; and/or (iv) religious & political items provided however, that customary still and non-photographic likeness provisions that provide talent with an opportunity to disapprove a certain percentage of likeness images that are no more restrictive (from SPE, the LP and Marvel’s perspective) than such provisions on the first three Pictures shall be permissible. The foregoing, shall be subject to SPE’s existing obligations to talent. Marvel would have the right to conduct sponsorships but Marvel would not have the right to structure sponsorships with partners in SPE Exclusive categories. OK to prohibiting SPE Exclusive categories but not with any timing or other restrictions.Remove restrictions on motion comics. [Ok as long as there is no live-action][Section 20a of the current agreement relating to injunctive relief would be revised]SPE will furnish Marvel with “an individual of notable importance” (e.g., the director, principal actor, or a producer) for 1 meeting per film to meet with licensees.Prohibitions upon use of Spider-Man villains in animation remain but use of a Reserved Villain in three (3) or fewer episodes of New Marvel Animation per twenty-six (26) episode season or the same or a lesser ratio (i.e., less than 11.5% of the episodes in a season) if a different number of episodes are produced in a season will not be subject to the Reserved Villain Black Out Period. Section 39 of the current agreement would be deletedThe entire agreement would be revised to delete language that is no longer relevant post-dealNote: 1 and 2 above would be removed if the CE point is resolvedEXHIBIT MA ASSET DELIVERY TIMELINE [SPE IS STILL REVIEWING]General Note: Assets will be provided “As is” based on the timing described below. Assets (e.g., film synopsis) may continue to evolve after initial delivery.ITEMFORMAT NOTESTIMINGProduction Sketches*Hard copy onlyReasonable efforts to provide 20 months prior to Picture Release Date but in no event later than 17 months prior to releaseCostume Designs and Illustrations*Hard copy onlyReasonable efforts to provide 20 months prior to Picture Release Date but in no event later than 17 months prior to release Film Synopsis Hard copy onlyReasonable efforts to provide 18 months prior to Picture Release Date but in no event later than 15 months prior to releaseShooting ScriptHard copy to Marvel with watermark in name of Marvel’s head of security; third parties (including Disney Film Personnel) may only view with SPE permission in Marvel secure facility. Master toy partners and interactive should be pre-approved (note: they will not get their own watermark; will need to be under Marvel’s).Reasonable efforts to provide 18 months prior to Picture Release Date but in no event later than 15 months prior to releaseTalent ListReasonable efforts to provide 18 months prior to Picture Release Date but in no event later than 15 months prior to releaseCharacter Maquettes and Reference*Hard visuals onlyReasonable efforts to provide 20 months prior to Picture Release Date but in no event later than 17 months prior to releaseTalent RestrictionsMonthly (as available)Press ReleasesPrior to distributionExterior/Interior Production DesignsHard copy onlyClarify – key items onlySOP with actual photography of this element delivered day of Shooting or when Director ApprovesProp Images and SketchesHard copy onlyClarify – key items onlySOP with actual photography of this element delivered day of Shooting or when Director ApprovesSales Presentation and DeckReasonable efforts to provide 18 months prior to Picture Release Date but in no event later than 15 months prior to releaseLogo TreatmentReasonable efforts to provide 16 months prior to Picture Release Date but in no event later than 13 months prior to releaseInternational Logo translationsReasonable efforts to provide 15 months prior to Picture Release Date but in no event later than 13 months prior to release[200] Movie Stills Featuring Various Key Characters and Scenes8 months Prior to Initial ReleaseFinal Trailer / One-Sheet90 days prior to Release DateSizzle ReelTo be provided in time for licensing show and key toy showsNote: if the sizzle reel is shown at a Disney event, SPE needs to present it. General idea is, Disney can’t imply ownership of pictures.Final Working CG files*Reasonable efforts to provide 18 months prior to Picture Release Date but in no event later than 15 months prior to releaseCast, Costume, Key Photo Shoot*Reasonable efforts to provide 18 months prior to Picture Release Date but in no event later than 15 months prior to releaseAccess to Clips for MerchTBD* For any/all key characters within such Picture including key villain(s), heroes and Spider-Man.Limitations on Public Availability of Assets - [NOTE: SPE IS STILL REVIEWING]CATEGORYPRODUCTS DEVELOPEDON-SHELF DATENOTES / COMMENTSToys/GamesFigures, play sets, role play60-90 days prior to theatrical releaseVaries by retailerInteractiveVideo GameOne to two weeks before theatrical releasePre-orders occur 30-60 days priorMobile, Social, & Casual OnlineGames, apps, social networksOne month prior to theatrical release Sporting Goodsballs, gear, outdoor playNo earlier than 3 months prior to theatrical releasePool, water, and outdoor could release Feb-MarchHalloweenCostumes, decorations8 weeks prior to theatrical releaseHalloween companies also sell role playApparelT's, underwear, pants, shoes8 weeks prior to release of theatrical Accessoriesbelts, glasses, wallets8 weeks prior to theatrical release Health & BeautyShampoo, soap8 weeks prior to theatrical release Sets in Feb and HolidayFood & BeverageCereal, packages goodsNo earlier than 3 months prior to theatrical release PublishingComics, novelizations, coloring8 weeks prior to theatrical releasePre-order 60-90 days priorBack-to-SchoolPencils, notebooks, backpacks8 weeks prior to theatrical release Stationery & Party GoodsGreeting cards, plates, cake decorations, balloons8 weeks prior to theatrical release Domestics/housewaresTowels, bedding8 weeks prior to theatrical release Gift & NoveltiesCups, mugs, key chains8 weeks prior to theatrical release [Note: Need to develop a mechanism to address seasonal items that are only “set” a few times a year and may need to be on-shelf sooner than the windows provided]. [Note: Subject to existing contracts w/o ability to limit (e.g., Activision). Marvel will provide a schedule of these contracts.]SPE Exclusive Categories Previously Included on Schedule 7ALL BEVERAGES OTHER THAN ASCEPTIC JUICES and milk based beverages (milk, chocolate milk, etc,…)ALL FROZEN FOODS THAT COULD BE COMPETITIVE WITH QSR PROMOTIONAL DEALS [NOTE: Specific language to be drafted, but would include frozen pizza, frozen hamburgers, frozen tacos, and restaurant-branded frozen foods (e.g., Marie Calendar’s)]BLANK AUDIO/VIDEO MEDIA DIP/DIP MIXES - SINGLE SERVINGFOILS & WRAPSFOOD & TRASH BAGS [Note: Clarify this excludes Tupperware-type food containers and cloth-based lunch bags / lunch boxes]MEXICAN FOODS / ETHNIC FOODS [NOTE: “Ethnic Foods” is an added clarification to the current contract] [Note: Clarify approach to “Mexican Food” in Mexico]PHOTOGRAPHY SUPPLIES [Note: Need to discuss exceptions for camera cases and review in light of Consumer Electronics clause (i.e., camera cases may still be problematic if Sony competes in that segment)PIZZA – REFRIGERATEDPIZZA PRODUCTS POPCORNPOPCORN OIL [except Marvel may license non-branded items with unique packaging, e.g. collector tins]REFRIGERATED DIPS RICE/POPCORN CAKES Salty Snack (including, but not limited to, chips, crisps, snack mixes, trail mix, puffs, pretzles, etc,.). There is an exception to licensed potatoes chips i.e. Dolce Prezisoi. SNACK BARS/ /POWER AND ENERGY BARS SNACK NUTS/SEEDS/CORN NUTS Marvel Exclusive Categories Previously Included on Schedule 7ALL OTHER BREAKFAST FOOD (except for pastries and doughnuts other than non-branded pastries and doughnuts)ALL OTHER SAUCESASEPTIC JUICES Milk based beveragesBAKED GOODS – REFRIGERATED. [Except on-site retail bakery (non branded)]BAKING MIXES BREAKFAST MEATS CANNED MEAT CANNED/BOTTLED FRUITCOOKIES [except for on-site retail bakery (non-branded)]CREAM CHEESE/CREME CHEESE SPREAD DESSERT TOPPINGS DESSERTS – REFRIGERATED DINNER SAUSAGEDOUGH/BISCUIT DOUGH – REFRIGERATEDDRY FRUIT SNACKS DRY PACKAGED DINNERS Chocolate EggsENGLISH MUFFINS EVAPORATED/CONDENSED MILK FRANKFURTERS FRESH BREAD & ROLLS FROSTINGFROZEN BREAD/FROZEN DOUGH FROZEN BREAKFAST FOOD FROZEN COOKIES [except for on-site retail bakery (non-branded)] FROZEN DESSERTS/TOPPING FROZEN MEAT FROZEN PIES FROZEN POT PIES GELATIN/PUDDING MIXESGLAZED FRUITHOT/COLD CEREAL ICE CREAM CONES/MIXES JELLIES/JAMS/HONEY LUNCHEON MEATS LUNCHES – REFRIGERATED - LunchablesMARSHMALLOWS MEAT PIES MILK FLAVORING/COCOA MIXES MUSTARD & KETCHUP NATURAL CHEESE PANCAKE MIXESPASTA – REFRIGERATEDPASTA PEANUT BUTTER PICKLES/RELISH/OLIVES PIES & CAKES (INCLUDING CHEESECAKES)- [Marvel to license, but may not allow licensees to conduct co-promotions relating to the Property or sell licensed goods relating to the property at any restaurant during any Exclusive Co-Promotion Window].POWDERED MILK PROCESSED CHEESE REFRIGERATED ENTREESREFRIGERATED MEAT/POULTRY PRODUCTS REFRIGERATED SIDE DISHESREFRIGERATED TORTILLA/EGGROLL/WONTON WRAPSOUP SPREADS – REFRIGERATEDSINGLE SERVING DINNERS SYRUP/MOLASSES TEA – INSTANT TEA MIXES TOASTER PASTRIES/TARTS YOGURT Exhibit A-1 Alternative VersionsSpider-Man 2099Spider-Man 2211Spider-Man NoirSpider-Man IndiaSpider-VenomPoisonCyber-Spider Ben Reilly/Scarlet SpiderKaineGuardianMan-SpiderThe Spider/Peter ParquahSpider-Man impostersSpider-LizardSpider-CarnageExhibit PR [NOTE: SPE IS STILL REVIEWING]1. Action Figures – Figures are: (1) less 4”; (2) are posed/sculpted in such a way that they cannot stand on their own or are permanently?attached to a base; (3) do not have any articulation (even at neck) unless it is to perform a certain function (pose-ability is not considered a function); and (4) key feature of figure should not be identical to a feature that toy licensee would have in their action figures.2. Role Play – No role play items that simulate character powers (e.g. wrist mountable web shooters).?3. Construction – No buildable figures or block sets.4. Costumes – No masks (other than cardboard masks) or gloves. Spider-Man eye-shaped glasses or similar items are acceptable. 5. Apparel – No t-shirts, boys pajama, bedding, footwear, and baseball caps.6. Back-To-School – No structured back packs. ................
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