Exchange Agreement, dated as of December 1, by and between RiceBran Technologies and Sabby Volatility Warrant Master Fund, Ltd

Exhibit 10.4

EXCHANGE AGREEMENT

Sabby Volatility Warrant Master Fund, Ltd. (the “Holder”) enters into this Exchange Agreement (this “Agreement”) with RiceBran Technologies, a California corporation (the “Company”), as of December 1, 2023, whereby, among other things, the Holder will exchange the existing Common Stock Purchase Warrant (the “Exchanged Warrant”) to purchase shares of the Company’s common stock, no par value (the “Common Stock”), held by the Holder for shares of Common Stock and a new Common Stock Purchase Warrant to purchase shares of the Common Stock in substantially the form attached hereto as Exhibit A (the “New Warrant”) all pursuant to an exemption from registration under Section 3(a)(9) of the Securities Act of 1933, as amended (the “Securities Act”). Capitalized terms not otherwise defined herein shall have the meaning ascribed to such terms in that certain Common Stock Purchase Warrant by and between the Company and the Holder, dated October 20, 2022.

On and subject to the terms hereof, the parties hereto agree as follows:

1.    Surrender of the Exchanged Warrant. Upon and subject to the terms set forth in this Agreement, as soon as practicable following the date hereof, the Holder hereby agrees to (a) deliver and surrender the Exchanged Warrant (including any warrant certificates related thereto) in exchange for 323,810 shares of Common Stock (such shares, the “Exchange Shares”) and the New Warrant (such exchange, the “Exchange”) and (b) provide evidence of such delivery and surrender to the Company (the date of such surrender being the “Exchange Date”).

2.    Exchange. On the trading day that the Company first satisfies the current public information requirement under Rule 144(c) such that the Exchange Shares may be resold by the Holder following the issuance thereof as contemplated herein under Rule 144 (the “Public Information Compliance Date”), (a) the Company will instruct its transfer agent to cause the number of Exchange Shares to be issued to the Holder to be registered in the name of the Holder or its nominee, and electronically issued through the Deposits and Withdrawal at Custodian program at the Depository Trust Company (the “DTC”) to the Holder’s DTC participant account set forth on Schedule I hereto, and (b) the Company shall issue to the Holder the certificate for the New Warrant. The Exchanged Warrant shall be deemed cancelled as of the date of this Agreement, and the Holder shall surrender the Exchanged Warrant in accordance with Section 1 as soon as possible after the date of this Agreement. All Exchange Shares shall be issued without restrictive legends; in connection with which, Holder shall provide satisfactory representation letters and other documentation as may reasonably be requested by counsel to the Company. Upon receipt by the Holder of the Exchange Shares and New Warrant, the Holder shall have no further rights under and hereby waives all claims in or with respect to the Exchanged Warrant and that certain Securities Purchase Agreement, dated October 18, 2022, including, without limitation, any conversion or redemption rights or the right to receive any dividends that may have accrued on such Exchanged Warrant. In addition to such Holder’s other available remedies, for each trading day following the date hereof until the Public Information Compliance Date, the Company shall pay the Holder, in cash, (i) as partial liquidated damages and not as a penalty, for each $1,000 of Exchange Shares issuable under this Agreement (assuming a value of the Exchange Shares based on the daily VWAP of the Common Stock on the applicable trading day), $10 per trading day (increasing to $20 per trading day five (5) trading days after the date hereof) for each trading day after the date hereof until the Public Information Compliance Date. In the event the Company fails to make the aforementioned payments within 5 days of the date of accrual, such payments shall bear interest at the rate of 1.5% per month (prorated for partial months) until paid in full. Nothing herein shall limit such Holder’s right to pursue actual damages for the failure to become current in the Company’s SEC Filings, and such Holder shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief.

3.    The Holder’s Representations and Warranties. The Holder acknowledges that it has been informed by the Company that the issuance of the Exchange Shares and the New Warrant in the Exchange will be exempt from registration under Section 3(a)(9) of the Securities Act and will not be registered pursuant to the securities or the blue sky laws of any state. The Holder represents and warrants, as of the date hereof and the Exchange Date, that:

4.    Representations of the Company. The Company hereby represents and warrants, as of the date hereof and the Exchange Date, to the Holder as follows:

5.    Expenses. Each party hereto shall bear all of its legal, accounting and other costs and expenses incident to the negotiation of this Agreement and the performance of the transactions contemplated herein.

6.    Voting Commitment. From and after the date hereof, the Holder shall vote, or cause to be voted, all Exchange Shares then beneficially owned by it and any if its controlled affiliates at all annual and special meetings of the Company’s shareholders or in connection with actions taken by written consent on all matters submitted to the shareholders of the Company in accordance with the recommendation of the Company’s Board of Directors.

7.    Governing Law. The Agreement will be governed by and construed in accordance with the laws of the State of New York.

8.    Entire Agreement. This Agreement, the documents to be executed hereunder, and the exhibits attached hereto constitute the entire agreement between the parties hereto pertaining to the subject matter hereof and supersede all prior agreements, understandings, negotiations and discussions, whether oral or written, of the parties pertaining to the subject matter hereof.

9.    Modification; Waiver. No modification of this Agreement will be binding on the parties unless and until the modification is set forth in writing specifically referencing this Agreement and signed by all of the parties to this Agreement. The waiver by any party of a breach of any provision of this Agreement by any other party shall not operate or be construed as a waiver of any subsequent breach of this Agreement.

10.    Counterparts. This Agreement may be executed in any number of original or facsimile counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.

11.    Public Information Failure. At any time during the period commencing from 30 days following the date hereof and ending at such time that all of the Exchange Shares and shares of Common Stock issuable upon exercise of the New Warrant Shares (the “New Warrant Shares”) may be sold without the requirement for the Company to be in compliance with Rule 144(c)(1) and otherwise without restriction or limitation pursuant to Rule 144, if the Company (i) shall fail for any reason to satisfy the current public information requirement under Rule 144(c) or (ii) has ever been an issuer described in Rule 144(i)(1)(i) or becomes an issuer in the future, and the Company shall fail to satisfy any condition set forth in Rule 144(i)(2) (a “Public Information Failure”) then, in addition to the Holder’s other available remedies, the Company shall pay to the Holder, in cash, as partial liquidated damages and not as a penalty, by reason of any such delay in or reduction of its ability to sell the Exchange Shares and New Warrant Shares, an amount in cash equal to two percent (2.0%) of the aggregate value of the Exchange Shares and New Warrant Shares issued and issuable to the Holder that have not been sold or otherwise disposed of by the Holder (value based on the average of the VWAPs during the 22 trading days immediately prior to the date in question less, as to the New Warrant Shares, the then Exercise Price) on the day of a Public Information Failure and on every thirtieth (30^th) day (pro-rated for periods totaling less than thirty days) thereafter until the earlier of (a) the date such Public Information Failure is cured, (b) such time that such public information is no longer required for the Holders to transfer the Exchange Shares and New Warrant Shares pursuant to Rule 144 and (c) such time as the Exchange Shares and New Warrant Shares are sold or otherwise disposed of by the Holder.  The payments to which a Holder shall be entitled pursuant to this Section 11 are referred to herein as “Public Information Failure Payments.”  Public Information Failure Payments shall be paid on the earlier of (i) the last day of the calendar month during which such Public Information Failure Payments are incurred and (ii) the third (3^rd) Business Day after the event or failure giving rise to the Public Information Failure Payments is cured.  In the event the Company fails to make Public Information Failure Payments in a timely manner, such Public Information Failure Payments shall bear interest at the rate of 1.5% per month (prorated for partial months) until paid in full. Nothing herein shall limit such Holder’s right to pursue actual damages for the Public Information Failure, and such Holder shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief.

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

Schedule I

DTC Participant Information for Delivery of Exchange Shares

Exhibit A

Form of New Warrant

[Attached]