SPERM DONOR DISCLOSURE AND CONSENT AGREEMENT

1. SCOPE OF AGREEMENT

This Sperm Donor Disclosure and Consent Agreement (“Agreement”) sets forth the terms by which the undersigned individual (“Donor”) agrees to provide donor sperm (“Donor Sperm”) to Xytex Corporation (“Xytex”) to be cryogenically preserved for use in third party reproduction, creation of embryos, and/or clinical research programs. Donor hereby agrees to be bound by the terms of this Agreement.

2. DONOR REPRESENTATIONS AND ACKNOWLEDGEMENTS

Xytex is a global provider of donor sperm and related services to clinical research programs, and to healthcare professionals and their patients. Xytex strives to serve its Donors while adhering to the highest ethical and legal standards in the industry. In order to maintain these high standards, and as additional consideration for Donor to provide Donor Sperm to Xytex, Donor hereby represents and acknowledges as follows:

• Donor Authority: Donor represents that Donor is eighteen (18) years of age or older and of sound mind.
• Recipient Identity and Parental Rights: Donor acknowledges that Xytex has no control over disposition of samples and that they may be utilized by individuals of different race, ethnicity, religious and sexual orientation worldwide. Donor further acknowledges that Donor shall have no right to learn the identity of any recipient of Donor Sperm or the outcomes of the use of Donor Sperm. Donor relinquishes all parental rights to offspring born as a result of the use of Donor Sperm. Xytex does not provide legal opinions or advice regarding parental rights or paternity matters for which Donor should consult a licensed attorney.
• Donor Sperm Limitations: Xytex limits the total number of births from Donor to a maximum number of allowable family units in accordance with industry best practices. Donor acknowledges once Donor reaches the maximum number of allowable family units, Donor Sperm inventory, if any, will be available only to families who have already had at least one reported birth from Donor.
• Donor Identification: Donor acknowledges that due to ongoing widespread advancements in available ancestry and/or personal genomics products (i.e., 23andMe, Ancestry.com, etc.), Donor’s identity may be revealed outside Xytex’s control to offspring born as a result of the use of Donor Sperm.
• Donor Incapacity/Death: Xytex shall have the right to continue to use Donor Sperm in third party reproduction and clinical research programs even after Donor’s incapacity or death.

3. PROGRAM REQUIREMENTS

Xytex makes a substantial investment by allowing Donor to participate in its Donor Sperm program. In return for being allowed to participate in the program, Donor acknowledges and agrees to the following:

• Screening and Testing: Donor authorizes Xytex to perform all screening and testing of Donor Sperm necessary to comply with all applicable regulations, including guidelines promulgated by the United States Food and Drug Administration (“FDA”). Donor agrees to provide Xytex with an accurate medical history of himself, and his family members, to include biological children, parents, grandparents, brothers, sisters, aunts, uncles, nieces, nephews, and cousins in the medical history questionnaire and subsequent medical history updates. Donor agrees to provide Xytex with any additional blood or other biological specimens reasonably requested by Xytex for use in the screening, testing and storage of Donor Sperm pursuant to this Agreement. Xytex reserves the right to change its screening criteria to remain compliant with regulatory and/or ethical requirements, quality improvement or for any other reason. I understand and agree to allow Xytex to store my DNA for future genetic testing.
• Program Participation: Donor agrees to participate in, and adhere to, all Xytex program requirements, as those requirements may be amended from time to time, including, but not limited to, initial and periodic blood testing, physical examinations, genetic testing, psychosocial evaluations, personality testing, medical history questionnaires, and background and education checks (the “Program Testing Requirements”). Donor acknowledges and agrees the Program Testing Requirements extend beyond the date Donor last provided Donor Sperm samples to Xytex. Xytex will perform detailed health screenings of Donor for compatibility with the program. If Donor elects to not complete the program’s onboarding process, Donor agrees to reimburse Xytex for the costs associated with the detailed health screenings already performed and the retail value of all remaining units.
• Spousal Consent: Donor acknowledges that Donor’s spouse must agree to Donor’s participation in the program and, as a prerequisite, Donor’s spouse will be required to speak with a Xytex clinical therapist regarding Donor’s participation in the program.
• Changes in Medical History: During the program, Donor agrees to immediately notify Xytex of any significant changes in Donor’s medical history including, but not limited to any of the following conditions: 1) exposure to unshielded, direct x-rays or CT scans of the pelvic area; 2) chronic illness; 3) new or changes in prescribed medications; 4) abnormal lab test results; and 5) new diagnoses of any major disease or infirmity of donor or donor family members. Donor agrees to notify Xytex if he participates in any high risk behaviors for communicable disease including, but not limited to, sex with a male, use of injected drugs, incarceration, or sex with someone with a communicable disease.
• Program Retirement: In the event Donor is no longer eligible or decides not to participate in the Donor Sperm program, Donor agrees provide a final blood sample to Xytex six (6) months after Donor last provided Donor Sperm to Xytex. If Donor fails to provide Xytex with the required final blood sample, or if Donor provides Xytex with written notification of Donor’s desire to no longer make Donor’s cleared Donor Sperm available for distribution, Donor agrees to reimburse Xytex for all costs, fees and expenses, including the retail value of all remaining units, associated with Donor’s retirement from the program. Donor understands that Xytex will try to contact Donor, using all legal means available, to obtain all final paperwork and testing so that donor units can be cleared and sold. After retirement from the program, Donor agrees to complete a Medical History Update annually or when requested by Xytex.
• Confidentiality: Donor agrees to keep the terms of this Agreement and the results of the Program Testing Requirements confidential and not to disclose the terms hereof or thereof to any third persons or entity without the prior written approval of Xytex, except that: 1) Donor may disclose the terms of this Agreement and/or the results of the Program Testing Requirements to the extent that, in the reasonable opinion of Donor’s legal counsel, such disclosure is required pursuant to law, but in each such case only after Donor has given prior written notice of the disclosure to Xytex; or 2) to Donor’s legal counsel or medical provider.
• Publicity: Donor shall not issue any press release, publicity statement or other public notice or comment relating to this Agreement without obtaining the prior written consent of Xytex, except to the extent that Donor and Donor’s legal counsel in good faith conclude such release, statement or notice is required by applicable law.
• Social Media: Donor may not post opinions or information about or related to this Agreement, the results of Program Requirements or Xytex on the Internet or on or through social media interfaces (including, but not limited to, Facebook, Twitter, LinkedIn, Instagram, Yahoo, Kik, MeWe, message boards, chat boards or blogs), even if not confidential, without first obtaining express written consent from Xytex.

4. RELEASE AUTHORIZATIONS

Xytex will maintain Donor’s medical records and other individually identifiable healthcare information (“Records”) indefinitely. Records include, but are not limited to, medical history, laboratory test results, photographs, supplemental forms, number of reported births and information obtained from future screenings. Donor understands the release of Records may cause the information to no longer be protected under federal healthcare privacy regulations. Donor agrees Xytex shall have the authority to determine the conditions and procedures upon which Xytex shall release Donor’s Records, and Donor further agrees Xytex shall retain the exclusive discretion to modify its procedures to reflect changes in the law or changes in industry practices and procedures. Records will periodically be made available for review by the appropriate federal, state and local governmental authorities having oversight over Xytex and its operations. Donor also specifically agrees to the following release authorizations:

• Public Health Organizations: Donor acknowledges Xytex may be required by law to release certain laboratory test results to governmental public health organizations and/or inseminating physicians and authorizes Xytex to release Donor’s Records. If Donor’s test results disqualify Donor from the program, Xytex personnel will communicate said disqualification to Donor and, upon request, provide Donor with copies of Donor’s laboratory test results to review with Donor’s treating primary care physician.
• Likeness Release: Donor grants Xytex all right, title and interest to and permission to copyright, use, publish and republish Donor’s number, voice, picture and likeness (collectively, “Likeness”) in any and all media or distribution now known or hereafter developed taken or recorded during the term of this Agreement including but not limited to electronic, digital or conventional, blurred or altered, in color or black and white, video or otherwise for art, trade, internal distribution or any other lawful purpose in any lawful manner anywhere in the world and/or on the worldwide web. Donor hereby waives any right to inspect or approve any final product using Donor’s Likeness. Donor waives any right to royalties or other compensation arising or related to the use of Donor’s Likeness. Donor hereby holds harmless and releases and forever discharges Xytex from all claims, demands, and causes of action which Donor, his heirs, representatives, executors, administrators, or any other persons acting on his behalf or on behalf of his estate has or may have by reason of this authorization.
• Communications with Offspring: Donor irrevocably authorizes Xytex to communicate with offspring born as a result of the use of Donor Sperm upon reaching the age of majority, including, but not limited to, communications about the Donor. Donor also authorizes Xytex to contact Donor about any verified biological offspring created through the use of Donor Sperm. Donor will not have access to any offspring identifying information unless a request is made by an offspring (age 18 or older) to facilitate contact.

5. IDENTITY DISCLOSURE PROGRAM

• Notwithstanding anything to the contrary in the Donor Agreement, I agree that Xytex may contact me in the future regarding any individual demonstrating to Xytex, through offspring registration records, to be my biological offspring, born through the use of my semen previously or hereafter donated to Xytex, when offspring has attained the legal age of majority ("Qualifying Child"). For purposes of clarity, Xytex may discretely use any information they have in their possession that would help them locate me for the Qualifying Child.
• I acknowledge that Xytex will inform potential recipients of my donated sperm that they have my permission through Xytex to facilitate contact with any Qualifying Child that has reached the legal age of majority and that potential semen recipients may rely on such permission in choosing to use my sperm in their assisted procreation efforts. In light of these facts, I agree that this consent, once given, shall be irrevocable.

6. FOREIGN JURISDICTION USE AND CONSENTS

Donor authorizes Xytex to distribute Donor Sperm to both its domestic and international clients. Donor acknowledges Xytex may be bound by laws and regulations of foreign jurisdictions.

• Clinics in certain countries are required to maintain Donor’s Records in a foreign central registry outside of Xytex’s control. Foreign jurisdictions may require the release of Donor’s Records to any offspring resulting from the use of Donor Sperm upon attaining the age of majority. Donor authorizes Xytex to release Donor’s Records to said foreign jurisdictions.
• Donor understands that in Australia, a donor’s natural child may also have the right to information regarding the year and sex of all children born from his donations.
• Canadian Consent to Use Donor Sperm: Donor consents and acknowledges that Donor Sperm may be used for: (i) the reproductive use of a third party; (ii) improving assisted reproduction procedures, and/or (iii) providing instruction in assisted reproduction procedures. Donor additionally consents and acknowledges the following:
  • If Donor wishes to withdraw Donor’s consent, the withdrawal must be in writing and the withdrawal is only effective if the person who intends to make use of the Donor Sperm is notified in writing of the withdrawal as follows: (1) in the case of Donor Sperm to be used to create an embryo for the purpose mentioned in Item (i), before the third party acknowledges in writing that the Donor Sperm has been obtained for their reproductive use, or if the Donor Sperm to be used has not yet been removed or collected but the third party has acknowledged in writing that the Donor Sperm is to be obtained for their reproductive use, before the removal or collection; and (2) in the case of Donor Sperm to be used to create an embryo for a purpose mentioned in Items (ii) or (iii), before the material is used.
  • The number of in vitro embryos created with Donor Sperm may be in excess of the immediate reproductive needs of the third party individual or couple.
  • If Donor Sperm is used to create in vitro embryos for a third party’s reproductive use and there are in vitro embryos in excess of the third party’s reproductive needs, the excess in vitro embryos will be used in accordance with the third party’s consent.

7. INDEMNIFICATION

Donor agrees to indemnify, defend and hold harmless Xytex and its shareholders, officers, directors, employees, agents, representatives, contractors, healthcare providers, vendors, successors and assigns, from any and all claims, losses, demands, damages, liabilities, offsets, charges, costs, obligations, or causes of action and expenses, including attorneys’ and experts’ fees, asserted by any third party, including Donor’s spouse, intimate partner, offspring, surrogate or gestational carrier, against Xytex arising out of or related to this Agreement.

8. DISPUTE RESOLUTION

Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by arbitration before a panel of three (3) arbitrators. Within fifteen (15) days after the commencement of arbitration, each party shall select one person to act as arbitrator, and the two so selected shall select a third arbitrator within thirty (30) days of the commencement of the arbitration. If the arbitrators selected by the parties are unable or fail to agree upon the third arbitrator within the allotted time, the third arbitrator shall be appointed by JAMS in accordance with its rules. All arbitrators shall serve as neutral, independent and impartial arbitrators. For Donors based in the United States of America, the arbitration shall be administered by JAMS pursuant to JAMS' Streamlined Arbitration Rules and Procedures. For international Donors, the arbitration shall be administered by JAMS pursuant to JAMS’ International Arbitration Rules. The place of arbitration will be in Richmond County, Georgia and the language used in the arbitral proceedings will be English. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Arbitration costs will be borne equally between Xytex and Donor. If the arbitrators determine a party to be the prevailing party under circumstances where the prevailing party won on some but not all of the claims and counterclaims, the arbitrators may award the prevailing party an appropriate percentage of the costs and attorneys' fees reasonably incurred by the prevailing party in connection with the arbitration. The parties shall maintain the confidential nature of the arbitration proceeding and the award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an Award or its enforcement, or unless otherwise required by law or judicial decision.

9. GENERAL PROVISIONS

Governing Law: This Agreement shall be governed, construed, and enforced in accordance with the laws of the State of Georgia. The parties agree that any dispute regarding the enforcement of this Agreement is subject to the exclusive jurisdiction and venue of the state and federal courts having jurisdiction over Richmond County, Georgia. The parties hereby consent to personal jurisdiction in the state and federal courts of Georgia for purposes of enforcing this Agreement.

Headings: The headings in this Agreement are for convenience of reference only, are not a part of this Agreement and shall not limit or otherwise affect the meaning hereof.

Entire Agreement: This Agreement represents the complete and exclusive statement of the mutual understanding of the parties, and supersedes and replaces any previous Agreement entered into between Xytex and Donor.

Severability: If any provision of this Agreement is found to be unlawful, void, invalid or for any reason unenforceable by any court, then that provision shall be deemed ineffective and severable from this Agreement only to the extent it is in contravention of applicable laws, and shall not affect the validity and enforceability of any remaining provisions hereof.

Compliance with Foreign Laws: Xytex does not represent its products and services are compliant with laws outside of the United States. Clients in foreign jurisdictions are ultimately responsible for compliance with local laws.

Notices: Xytex shall satisfy any notice obligation or requirement under this Agreement by sending its correspondence to the most current mailing address or email address provided by Donor. Donor agrees to keep Xytex informed in writing during the term of this Agreement of any change in Donor’s pertinent contact information including, current mailing address, email address and telephone numbers. Any notices to Xytex regarding the provisions or enforceability of this Agreement shall be made in writing and hand delivered or sent by certified mail to Xytex Corporation, 1100 Emmett Street, Augusta, Georgia 30904.

Binding Effect: This Agreement will be binding upon the parties and their respective assignees, heirs, executors, and administrators.

Survival: The provisions of Sections 3, 4, 5, 6 and 7 shall survive the termination of this Agreement.

Counterparts and Electronic Signatures: This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same Agreement. Signatures transmitted by facsimile, email or other means of electronic transmission shall be deemed for all purposes to have the same legal effect as delivery of an original executed copy of this Agreement.

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