Exhibit 10.1


 


EXCHANGE
AGREEMENT


 


This
Exchange Agreement (this “Agreement”), dated as of May 9, 2022, is made by and between RetinalGenix Technologies Inc.,
a Delaware corporation (the “Company”), and Sanovas Ophthalmology, LLC as the holder of the Debt (as defined below)
(the “Holder”).


 


WHEREAS,
the Company is obligated to pay the Holder $353,432 (the “Debt”); and


 


WHEREAS,
subject to the terms and conditions set forth in this Agreement and pursuant to Section 4(a)(2) of the Securities Act of 1933, as amended
(the “Securities Act”), the Company desires to exchange with the Holder, and the Holder desires to exchange with the
Company, the Debt for 353,432 shares of the Company’s common stock, par value $0.0001 per share (the “Shares”).


 


NOW,
THEREFORE, in consideration of the mutual covenants contained in this Agreement, and for other good and valuable consideration the receipt
and adequacy of which are hereby acknowledged, the Company and the Holder agree as follows:


 


1.
Terms of the Exchange. The Company and the Holder agree that the Holder will exchange the Debt held by the Holder and will relinquish
any and all other rights it may have under the Debt in exchange for the Shares.


 


2.
Closing.


 


a.
General. Upon consummation of the conditions set forth herein, a closing shall occur at the principal offices of the Company,
or such other location as the parties shall mutually agree. At closing, the Company shall deliver to the Holder the Shares. Upon closing,
any and all obligations of the Company to Holder under the Debt shall be fully satisfied, the documents evidencing the Debt shall be
cancelled and the Holder will have no remaining rights, powers, privileges, remedies or interests under the Debt.


 


b.
Conditions to Closing. The following shall be conditions precedent to the closing: the parties shall have executed this Agreement
and the Debt shall be null and void.


 


3.
Further Assurances. Each party shall do and perform, or cause to be done and performed, all such further acts and things,
and shall execute and deliver all such other agreements, certificates, instruments and documents, as any other party may reasonably request
in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated
hereby.


 


4.
Representations and Warranties of the Holder. The Holder represents and warrants as of the date hereof and as of the closing to
the Company as follows:


 


a.
Authorization; Enforcement. The Holder has the requisite power and authority to enter into and to consummate the transactions
contemplated by this Agreement and otherwise to carry out its obligations hereunder. The execution and delivery of this Agreement by
the Holder and the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary action on the
part of the Holder and no further action is required by the Holder. This Agreement has been (or upon delivery will have been) duly executed
by the Holder and, when delivered in accordance with the terms hereof, will constitute the valid and binding obligation of the Holder
enforceable against the Holder in accordance with its terms, except: (i) as limited by general equitable principles and applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally,
(ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii)
insofar as indemnification and contribution provisions may be limited by applicable law.


 


b.
Tax Advisors. The Holder has reviewed with its own tax advisors the U.S. federal, state, local and foreign tax consequences of
this investment and the transactions contemplated by this Agreement. With respect to such matters, the Holder relied solely on such advisors
and not on any statements or representations of the Company or any of its agents, written or oral. The Holder understands that it (and
not the Company) shall be responsible for its own tax liability that may arise as a result of this investment or the transactions contemplated
by this Agreement.


 




    	 



     


    

 


c.
Information Regarding Holder. The Holder is an “accredited investor,” as such term is defined in Rule 501 of Regulation
D promulgated by the United States Securities and Exchange Commission (the “Commission”) under the Securities Act
and is not subject to any “bad actor” disqualification event in Rule 506(d)(1)(i)-(viii) of the Securities Act, is experienced
in investments and business matters, has made investments of a speculative nature and has purchased securities of companies in private
placements in the past and, with its representatives, has such knowledge and experience in financial, tax and other business matters
as to enable the Holder to utilize the information made available by the Company to evaluate the merits and risks of and to make an informed
investment decision with respect to the proposed purchase, which represents a speculative investment. The Holder has the authority and
is duly and legally qualified to purchase and hold the Shares. The Holder is able to bear the risk of such investment for an indefinite
period and to afford a complete loss thereof. The Holder is acquiring the Shares for such Holder’s own account for investment and
not with a view to, or for sale in connection with, any distribution thereof, nor with any present intention of distributing or selling
the same; and, except as contemplated by this Agreement, the Holder has no present or contemplated agreement, undertaking, arrangement,
obligation, indebtedness, or commitment providing for the disposition thereof.


 


d.
Legend. The Holder understands that the Shares will be issued pursuant to an exemption from registration or qualification under
the Securities Act and applicable state securities laws, and except as set forth below, the Shares shall bear any legend as required
by the “blue sky” laws of any state and a restrictive legend in substantially the following form (and a stop-transfer order
may be placed against transfer of such stock certificates):


 


THIS
SECURITY [AND THE SECURITIES ISSUABLE UPON EXERCISE THEREOF] HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND MAY NOT BE TRANSFERRED UNLESS PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT, A “NO-ACTION” LETTER FROM THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION (THE “COMMISSION”) WITH RESPECT
TO SUCH TRANSFER, A TRANSFER MEETING THE REQUIREMENTS OF RULE 144 OF THE COMMISSION, OR AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER
TO THE EFFECT THAT ANY SUCH TRANSFER IS EXEMPT FROM SUCH REGISTRATION.


 


e.
Removal of Legends. Certificates evidencing the Shares shall not be required to contain the legend set forth in Section 4(d)
above or any other legend (i) while a registration statement covering the resale of such securities is effective under the Securities
Act, (ii) following any sale of such shares pursuant to Rule 144 (assuming the transferor is not an affiliate of the Company), (iii)
if such shares are eligible to be sold, assigned or transferred under Rule 144 and the Holder is not an affiliate of the Company (provided
that the Holder provides the Company with reasonable assurances that such shares are eligible for sale, assignment or transfer under
Rule 144 which shall include an opinion of the Holder’s counsel), (iv) in connection with a sale, assignment or other transfer
(other than under Rule 144), provided that the Holder provides the Company with an opinion of counsel to the Holder, in a generally acceptable
form, to the effect that such sale, assignment or transfer of the shares may be made without registration under the applicable requirements
of the Securities Act or (v) if such legend is not required under applicable requirements of the Securities Act (including, without limitation,
controlling judicial interpretations and pronouncements issued by the Commission).


 


f.
Restricted Securities. The Holder understands that: (i) the Shares have not been and are not being registered under the Securities
Act or any state securities laws, and may not be offered for sale, sold, assigned or transferred unless (A) subsequently registered thereunder,
(B) the Holder shall have delivered to the Company (if requested by the Company) an opinion of counsel to the Holder, in a form reasonably
acceptable to the Company, to the effect that such Shares to be sold, assigned or transferred may be sold, assigned or transferred pursuant
to an exemption from such registration, or (C) the Holder provides the Company with reasonable assurance that such Shares can be sold,
assigned or transferred pursuant to Rule 144 or Rule 144A promulgated under the Securities Act (or a successor rule thereto) (collectively,
“Rule 144”); and (ii) any sale of the Shares made in reliance on Rule 144 may be made only in accordance with the
terms of Rule 144, and further, if Rule 144 is not applicable, any resale of the Shares under circumstances in which the seller (or the
Person (as defined herein) through whom the sale is made) may be deemed to be an underwriter (as that term is defined in the Securities
Act) may require compliance with some other exemption under the Securities Act or the rules and regulations of the Commission promulgated
thereunder.


 


5.
Representations and Warranties of the Company. The Company hereby makes the following representations and warranties to the Holder:


 


a.
Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into this Agreement and to consummate
the transactions contemplated by this Agreement and each of the other agreements entered into by the parties hereto in connection with
the transactions contemplated by this Agreement (collectively, the “Exchange Documents”) and otherwise to carry out
its obligations hereunder and thereunder. The execution and delivery of this Agreement by the Company and the consummation by it of the
transactions contemplated hereby have been duly authorized by all necessary action on the part of the Company and no further action is
required by the Company, the board of directors of the Company or the Company’s stockholders in connection therewith, including,
without limitation, the issuance of the Shares. This Agreement has been (or upon delivery will have been) duly executed by the Company
and, when delivered in accordance with the terms hereof, will constitute the valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except: (i) as limited by general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as
limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar
as indemnification and contribution provisions may be limited by applicable law.


 




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b.
Organization and Qualification. The Company is duly organized and validly existing and in good standing under the laws of the
jurisdiction in which it is formed, and has the requisite power and authorization to own its properties and to carry on its business
as now being conducted and as presently proposed to be conducted. The Company is duly qualified as a foreign entity to do business and
is in good standing in every jurisdiction in which its ownership of property or the nature of the business conducted by it makes such
qualification necessary, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse
Effect. As used in this Agreement, “Material Adverse Effect” means any material adverse effect on (i) the business,
properties, assets, liabilities, operations (including results thereof), condition (financial or otherwise) or prospects of the Company,
(ii) the transactions contemplated hereby or in any of the other Exchange Documents or (iii) the authority or ability of the Company
to perform any of its obligations under any of the Exchange Documents.


 


c.
No Conflict. The execution, delivery and performance of the Exchange Documents by the Company and the consummation by the Company
of the transactions contemplated hereby and thereby (including, without limitation, the issuance of the Shares) will not (i) result in
a violation of the Company’s certificate of incorporation or other organizational documents of the Company, any capital stock of
the Company or bylaws of the Company, (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or
both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement,
indenture or instrument to which the Company is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment
or decree (including foreign, federal and state securities laws and regulations applicable to the Company or by which any property or
asset of the Company is bound or affected except, in the case of clause (ii) or (iii) above, to the extent such violations that could
not reasonably be expected to have a Material Adverse Effect.


 


d. No Consents. The Company is not required to obtain any consent from, authorization or order of, or make any filing or registration
with, any court, governmental agency or any regulatory or self-regulatory agency or any other Person in order for it to execute, deliver
or perform any of its respective obligations under or contemplated by the Exchange Documents, in each case, in accordance with the terms
hereof or thereof. All consents, authorizations, orders, filings and registrations which the Company is required to obtain pursuant to
the preceding sentence have been obtained or effected on or prior to the date of this Agreement, and the Company is not aware of any
facts or circumstances which might prevent the Company from obtaining or effecting any of the registration, application or filings contemplated
by the Exchange Documents. “Person” means an individual, a limited liability company, a partnership, a joint venture,
a corporation, a trust, an unincorporated organization, any other entity and any governmental entity or any department or agency thereof.


 


e.
Securities Law Exemptions. Assuming the accuracy of the representations and warranties of the Holder contained herein, the offer
and issuance by the Company of the Shares is exempt from registration under the Securities Act pursuant to the exemption provided by
Section 4(a)(2) thereof.


 


f.
Issuance of the Shares. The issuance of the Shares is duly authorized by the Company and the Shares are duly and validly issued,
fully paid and non-assessable, free from all taxes, liens, charges and other encumbrances imposed by the Company other than restrictions
on transfer provided for in such documents.


 


g.
Shell Company Status. The Company is not, and has never been, an issuer identified in, or subject to, Rule 144(i) of the Securities
Act.


 


6.
Additional Acknowledgments. [Intentionally Omitted]


 


7.
Release by Holder. In consideration of the foregoing, the Holder releases and discharges Company, Company’s officers, directors,
principals, control persons, past and present employees, insurers, successors, and assigns (“Company Parties”) from
all actions, cause of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts,
controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims, and demands whatsoever,
in law, admiralty or equity, which against Company Parties ever had, now have or hereafter can, shall or may, have for, upon, or by reason
of any matter, cause or thing whatsoever, whether or not known or unknown, arising under the Debt. It being understood that this Section
7 shall be limited in all respects to only matters arising under or related to the Debt and shall under no circumstances constitute a
release, waiver or discharge with respect to the Shares or any Exchange Documents or limit the Holder from taking action for matters
with respect to the Shares or any Exchange Document or events that may arise in the future.


 


8.
Miscellaneous.


 


a.
Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors
and assigns.


 




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b.
Governing Law; Jurisdiction; Waiver of Jury Trial. This Agreement shall be governed by and construed under the laws of the State
of New York, without regard to the choice of law principles thereof. Each party hereby irrevocably submits to the exclusive jurisdiction
of the state and federal courts sitting in the State of New York, City of New York for the adjudication of any dispute hereunder or in
connection herewith or with any transaction contemplated hereby, and hereby irrevocably waives any objection that such suit, action or
proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Nothing contained herein
shall be deemed to limit in any way any right to serve process in any manner permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY
RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING
OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.


 


c.
Severability. If any provision of this Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity or unenforceability
shall not affect the validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity or enforceability
of any provision of this Agreement in any other jurisdiction.


 


d.
Counterparts/Execution. This Agreement may be executed in two or more identical counterparts, all of which shall be considered
one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party.
In the event that any signature is delivered by facsimile transmission or by an e-mail which contains an electronic file of an executed
signature page, such signature page shall create a valid and binding obligation of the party executing (or on whose behalf such signature
is executed) with the same force and effect as if such facsimile or electronic file signature page (as the case may be) were an original
thereof.


 


e.
Notices. Any notice or communication permitted or required hereunder shall be in writing and shall be deemed sufficiently given
if hand-delivered or sent (i) postage prepaid by registered mail, return receipt requested, or (ii) by email, to the respective parties
as set forth below, or to such other address as either party may notify the other in writing.


 


If
to the Company, to:


 


RetinalGenix
Technologies Inc.


1450
North McDowell Boulevard, Suite 150


Petaluma,
CA 94954


Attn:
Jerry Katzman, Chief Executive Officer


Email:
jkatzman@retinalgenix.com


 


If
to the Holder, to the address set forth on the signature page of the Holder.


 


f.
Entire Agreement; Amendments. This Agreement constitutes the entire agreement between the parties with regard to the subject matter
hereof and thereof, superseding all prior agreements or understandings, whether written or oral, between the parties. This Agreement
may be amended, modified, superseded, cancelled, renewed or extended, and the terms and conditions hereof may be waived, only by a written
instrument signed by all parties, or, in the case of a waiver, by the party waiving compliance. Except as expressly stated herein, no
delay on the part of any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any
waiver on the part of any party of any right, power or privilege hereunder preclude any other or future exercise of any other right,
power or privilege hereunder.


 


g.
Headings. The headings used in this Agreement are used for convenience only and are not to be considered in construing or interpreting
this Agreement.


 


i.
Pledge of Shares. The Company acknowledges and agrees that the Shares may be pledged by the Holder in connection with a bona fide
margin agreement or other loan or financing arrangement that is secured by the Shares. The pledge of the Shares shall not be deemed to
be a transfer, sale or assignment of the Shares hereunder, and if the Holder effects a pledge of the Shares it shall not be required
to provide the Company with any notice thereof or otherwise make any delivery to the Company pursuant to this Agreement. The Company
hereby agrees to execute and deliver such documentation as a pledgee of the Shares may reasonably request in connection with a pledge
of the Shares to such pledgee by the Holder.


 


[SIGNATURE
PAGE FOLLOWS]


 




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IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the day and year first above written.


 


	 	RETINALGENIX
    TECHNOLOGIES INC.
	 	 	                                
	 	By:	/s/
    Jerry Katzman
	 	Name:	Jerry
    Katzman
	 	Title:	Chief
    Executive Officer
	 	 	 
	 	SANOVAS
    OPHTHALMOLOGY, LLC
	 	 	 
	 	By:	/s/
    Jerry Katzman
	 	Name:	Jerry
    Katzman
	 	Title:	Sole
    Manager


 




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