ex10-2.htm


    Exhibit
10.2

    FIRST AMENDMENT TO
PROMISSORY NOTES

    


    This
First Amendment to Promissory Notes (“Amendment”), entered into by
the undersigned and dated November __, 2009, amends each Promissory Note issued
by ECO2 Plastics
Inc. (“ECO2”)
on September 8, 2009 for the benefit of each respective “Holder” listed on the
signature page hereto (the “Notes”).  Capitalized
terms used but not defined herein shall have the meanings ascribed to them in
the original promissory note.

     

    BACKGROUND

     

    WHEREAS,
the undersigned desire to adjust the price per share at which the principal
amount and interest due under the Notes may be converted into shares of
preferred stock;

     

    WHEREAS,
the undersigned desire to modify the conversion provision of the Notes to allow
the principal amount and interest due under the Notes to be converted into
shares of Series D Convertible Preferred Stock of ECO2;

     

    WHEREAS,
the undersigned desire to extend the date on which the unpaid principal and
accrued and unpaid interest on the Notes is due and payable, and are willing to
extend such date on the terms and conditions set forth below; and

     

    NOW,
THEREFORE, for good and valuable consideration, the receipt of which is hereby
acknowledged, the undersigned, intending to be legally bound, agree as
follows:

     

    1.           Amendment.

     

    
      	
              a.  

            	
              Section
      6.1 of each Note is hereby amended by deleting the phrase “price per share
      equal to $0.015” contained therein and inserting in place thereof the
      phrase “price per share equal to
$0.0017”.

            


    

     

    
      	
              b.  

            	
              Section
      6.1 of each Note is hereby amended by deleting the phrase “Series C
      Convertible Preferred Stock” contained therein and inserting in place
      thereof the phrase “Series D Convertible Preferred
  Stock”.

            


    

     

    
      	
              c.  

            	
              Section
      2 of each Note is hereby amended by deleting the paragraph in its
      entirety, and inserting in place thereof the below
    language:

            


    

     

    “Maturity
Date.  The Note Amount, any accrued Interest thereon and all
other sums due hereunder, shall be due and payable on November 30, 2009 (the
“Maturity
Date”).

     

    
      	
              d.  

            	
              Other
      than as expressly set forth herein, all other terms of the Notes shall
      remain in effect as set forth in therein with no amendments or
      alterations.

            


    

     

    2.           General
Provisions.

     

    
      	
              a.  

            	
              Governing
      Law.  The terms of this Amendment shall be construed in
      accordance with the laws of the State of California, as applied to
      contracts entered into by California residents within the State of
      California and to be performed entirely within the State of
      California.

            


    

     

    
      	
              b.  

            	
              Modification;
      Waiver.  No modification or waiver of any provision of
      this Amendment or consent to the departure therefrom shall be effective
      without the written consent of ECO2 and
      the Note holders, and then it shall be effective only in the specific
      instance and for the specific purpose for which it was
    given.

            


    

     

    
      	
              c.  

            	
              Successors and
      Assigns.  This Amendment shall be binding upon and shall
      inure to the benefit of any and all successors, assigns, heirs, executors
      and personal representatives of the undersigned.  This
      Amendment, as it pertains to the Notes, may be assigned by the holder of
      such Note without the consent of ECO2, but
      may not be assigned by ECO2
      without the prior written consent of the holder of such
    Note.

            


    

     

    
      	
              d.  

            	
              Severability;
      Headings.  If any provision of this Amendment shall be
      held to be illegal, invalid or unenforceable, the remaining provisions
      shall continue to be in full force and effect.  The headings of
      paragraphs are for convenience only; they are not part of this Amendment
      and shall not affect its
interpretation.

            


    

     

    
      	
              e.  

            	
              Counterparts.  This
      Amendment may be executed in one or more counterparts, each of which shall
      be deemed an original, but all of which together shall constitute one and
      the same instrument.

            


    

     

    


    Signature
Page Follows


    
      
         


      

      
        
        

        
          

        

      

      
         


      

    


    IN
WITNESS WHEREOF, the undersigned have executed this Amendment as of the day and
year first above written.

    


    ECO2
Plastics, Inc.

    


    


    By:
____________________________________

    Name:
Raymond M. Salomon

    Title:
Chief Financial Officer

    


    


    Peninsula
Packaging, LLC

    


    


    By:
____________________________________

    Name:
Alex Millar

    Title:
Managing Director

    


    


    


    Trident
Capital Fund-VI, L.P.

    Trident
Capital Fund-VI Principals Fund, L.L.C.

    


    Executed
by the undersigned as an authorized signatory of the General Partner of Trident
Capital Fund-VI, L.P. and of the Managing Member of Trident Capital Fund-VI
Principals Fund, L.L.C.

    


     

                             
________________________________________

    (signature)

     

                              
________________________________________

    (print name)

    


    


    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    THE
SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR UNDER THE PROVISIONS OF
ANY APPLICABLE STATE SECURITIES LAWS, BUT HAVE BEEN ACQUIRED BY THE REGISTERED
HOLDER HEREOF FOR PURPOSES OF INVESTMENT AND IN RELIANCE ON STATUTORY EXEMPTIONS
UNDER THE 1933 ACT, AND UNDER ANY APPLICABLE STATE SECURITIES
LAWS.  THESE SECURITIES MAY NOT BE SOLD, PLEDGED, TRANSFERRED OR
ASSIGNED EXCEPT IN A TRANSACTION WHICH IS EXEMPT UNDER THE PROVISIONS OF THE
1933 ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT.

     

    


    PROMISSORY
NOTE

    


                                                                                                    Riverbank,
California

                                                                               Date
of Issuance: [_________], 2009

    


               FOR
VALUE RECEIVED, ECO2 PLASTICS, INC., a Delaware
corporation (the “Promisor”) hereby
promises to pay to the order of [____________________] (the
“Promisee” or
the “Holder”),
in lawful money of the United States at the address of the Holder set forth
herein, the principal amount of [_______________________] ($[________]) (the
“Note Amount”),
together with Interest, as defined below.  This Promissory Note
(“Note”) has
been executed by the Promisor on the date set forth above (the “Effective
Date”).

    


    1.            Interest.  Interest
shall accrue at eight percent (8%) per annum on the outstanding principal amount
of this Note (the “Interest”).  Upon
the occurrence of an Event of Default and for so long as such Event of Default
continues, Interest shall accrue on the outstanding Note Amount at the rate of
eight percent (8%) per annum (the “Default Interest
Rate”).

    


    2.            Maturity
Date.  The Note Amount, any accrued Interest thereon and all
other sums due hereunder, shall be due and payable October 31, 2009 (the “Maturity
Date”).

    


    3. Application of
Payments.

    


    3.1.            Except
as otherwise expressly provided herein, payments under this Note shall be
applied, (i) first to the repayment of any sums incurred by the Holder for the
payment of any expenses in enforcing the terms of this Note, (ii) then to the
payment of any accrued but unpaid Interest under this Note, and (iii) then to
the reduction of the Note Amount.

    


    3.2.            The
Promisor may prepay all or any part of the principal without
penalty.

    


    3.3.            Upon
payment in full of the Note Amount, any applicable accrued and unpaid Interest
thereon, and any other sums due hereunder, this Note shall be marked “Paid in
Full” and returned to the Promisor.

     
 

    4.            Waiver of
Notice.  The Promisor hereby waives presentment for payment,
demand, notice of nonpayment, notice of protest and protest of this Note, and
all other notices in connection with the delivery, acceptance, performance,
default or enforcement of the payment of this Note, and agrees that the
liability of the Promisor shall be unconditional without regard to the liability
of any other party and shall not be in any manner affected by any indulgence,
extension of time, renewal, waiver or modification granted or consented to by
the Promisee.

    


    5.            Events of
Default.  The occurrence of any of the following events (each
an “Event of
Default”) shall constitute an Event of Default of the
Promisor:

    


    5.1. the failure of the Promisor to make any
payment due hereunder within three (3) days after the due date thereof;
and

     

    5.2.            (i)
the application for the appointment of a receiver or custodian for the Promisor
or the property of the Promisor, (ii) the entry of an order for relief or the
filing of a petition by or against the Promisor under the provisions of any
bankruptcy or insolvency law, (iii) any assignment for the benefit of creditors
by or against the Promisor, or (iv) the Promisor’s insolvency (which term is
defined for purposes of this paragraph as the failure or inability of the
Promisor to meet its obligations as the same fall due). 

    


               Upon
the occurrence of any Event of Default that is not cured within any applicable
cure period, if any, the Holder may elect to take at any time any or all of the
following actions: (i) declare this Note to be forthwith due and payable,
whereupon the entire unpaid Note Amount, together with all accrued and unpaid
Interest thereon (including the Default Interest Rate), and all other cash
obligations hereunder, shall become forthwith due and payable, without
presentment, demand, protest or any other notice of any kind, all of which are
hereby expressly waived by the Promisor, anything contained herein to the
contrary notwithstanding, (ii) set-off any amounts owed by the Promisee or any
Affiliate of the Promisee (each of which is an intended third party beneficiary
hereunder), to the Promisor whatsoever against any amounts owed by the Promisor
to the Promisee hereunder; and (iii) exercise any and all other remedies
provided hereunder or available at law or in equity.  For purposes of
this Note, “Affiliate” means any
other party that, directly or indirectly, through one or more intermediaries,
controls, is controlled by, or is under control with, such party.

    


    If an Event of Default occurs by the
Promisor, the Promisor agrees to pay, in addition to the Note Amount, reasonable
attorneys' fees and any other reasonable costs incurred by the Holder in
connection with its pursuit of its remedies under this Note.

    


    6.           Conversion.

    


    6.1           At
any time upon written notice by the Promisee to the Promisor, the principal
amount and all Interest due under this Note shall be converted into shares of
Series C Convertible Preferred Stock of the Promisor (“Securities”) at a
price per share equal to $0.015 (subject to appropriate adjustment for all stock
splits, subdivisions, combinations, recapitalizations and the
like).  No fractional shares of Securities will be issued upon such
conversion of this Note.  In lieu thereof, the number of Securities to
be issued to the Holder shall be rounded to the nearest whole
share.  Upon conversion of this Note pursuant to this Section 6, the
Holder shall surrender this Note, duly endorsed, at the principal offices of the
Promisor or any transfer agent of the Promisor.  At its expense, the
Promisor will, as soon as practicable thereafter, issue and deliver to such
Holder, at such principal office, a certificate or certificates for the number
of shares to which such Holder is entitled upon such conversion, together with
any other securities and property to which the Holder is entitled upon such
conversion under the terms of this Note, including a check payable to the Holder
for any cash amounts payable as described herein.  Upon conversion of
this Note, the Promisor will be forever released from all of its obligations and
liabilities under this Note with regard to that portion of the principal amount
and accrued interest being converted including without limitation the obligation
to pay such portion of the principal amount and accrued interest.

    


    7.           Miscellaneous.

    


    7.1           Successors and
Assigns.  The terms and conditions of this Note shall inure to
the benefit of and be binding upon the respective executors, administrators,
heirs, successors and permitted assigns of the parties.  This Note (or
a portion hereof) may be assigned by the Holder without the consent of the
Promisor.  This Note may not be assigned by the Promisor without the
prior written consent of the Promisee.

    


    7.2           Loss or Mutilation of
Note.  Upon receipt by the Promisor of evidence reasonably
satisfactory to the Promisor of the loss, theft, destruction or mutilation of
this Note, together with indemnity reasonably satisfactory to the Promisor, in
the case of loss, theft or destruction, or the surrender and cancellation of
this Note, in the case of mutilation, the Promisor shall execute and deliver to
the Holder a new promissory note of like tenor and denomination as this
Note.

    


    7.3           Notices.  Any
notice or other communication required or permitted to be given pursuant to the
terms of this Note shall be in writing and shall be deemed effectively given the
earlier of, (i) when received, (ii) when delivered personally, (iii) one
business day after being delivered by facsimile (with receipt of appropriate
confirmation), or (iv) one (1) business day after being deposited with an
overnight courier service, and addressed to the recipient at the addresses set
forth below unless another address is provided to the other party in
writing:

    


    If to Promisee,
to:

    


    ________________________

    ________________________

    ________________________

    ________________________

    Attn:    
__________________

    Fax:       
__________________

    


    If to the Promisor,
to:

    


    ECO2 Plastics,
Inc.

    P. O. Box
760

    5300 Claus Road

    Riverbank,
CA  95367

    Attn:  Chief Accounting
Officer

    Fax:           (209)
863-6200 

    with a copy
to:

    


                          The
Otto Law Group, PLLC

    601 Union Street, Suite
4500

    Seattle, WA 98101

    Attn:           David
M. Otto

    Fax:           (206)
262-9513

    


    7.4           Governing
Law.  This Note shall be governed in all respects by the laws
of the State of California as applied to agreements entered into and performed
entirely within the State of California by residents thereof, without regard to
any provisions thereof relating to conflicts of laws among different
jurisdictions.

    


    7.5           Waiver and
Amendment.  No waiver of any term of this Note shall be
effective against the Holder unless in writing.  Any term of this Note
may be amended, waived or modified only with the written consent of the Promisor
and the Holder.

    


    7.6           Remedies.  No
delay or omission by the Holder in exercising any of its rights, remedies,
powers or privileges hereunder or at law or in equity and no course of dealing
between the Holder and the undersigned or any other person shall be deemed a
waiver by the Holder of any such rights, remedies, powers or privileges, even if
such delay or omission is continuous or repeated, nor shall any single or
partial exercise of any right, remedy, power or privilege preclude any other or
further exercise thereof by the Holder or the exercise of any other right,
remedy, power or privilege by the Holder.  The rights and remedies of
the Holder described herein shall be cumulative and not restrictive of any other
rights or remedies available under any other instrument, at law or in equity
provided that such rights or remedies are not inconsistent with the express
provisions hereof.

    


    7.7           Usury Savings
Clause.  In the event any interest is paid on this Note which
is deemed to be in excess of the then legal maximum rate, then that portion of
the interest payment representing an amount in excess of the then legal maximum
rate shall be deemed a payment of principal and applied against the principal of
this Note.

     

    7.8           Severability.  If
any provision hereof is found by a court of competent jurisdiction to be
prohibited or unenforceable, it shall be ineffective only to the extent of such
prohibition or unenforceability, and such prohibition or unenforceability shall
not invalidate the balance of such provision to the extent it is not prohibited
or unenforceable, nor invalidate the other provisions hereof, all of which shall
be liberally construed in favor of the Promisee in order to effect the
provisions of this Note.

     

    7.9           Setoff.  Notwithstanding
the absence of an Event of Default, the Promisee shall have the right to set-off
any amounts owed by the Promisee or any Affiliate of the Promisee (each of which
is an intended third party beneficiary hereunder) to the Promisor whatsoever
against any amounts owed by the Promisor to the Promisee hereunder.

     

    


     

               IN
WITNESS WHEREOF, the Promisor has caused this Note to be signed on the Effective
Date.

    


    


    


    ECO2 PLASTICS,
INC.

    


    


    


                                                                                                    _______________________________

    Name:
Raymond M. Salomon

    Title:
Chief Financial Officer

    


    


    


    CALIFORNIA ALL-PURPOSE
ACKNOWLEDGMENT

    


    State of
California

    County of
__________________________

    On
______________________ before me,
___________________________________________

    (Date)                                                                (Insert
Name and Title of Officer)

    Personally
appeared
_____________________________________________________________

    Name(s) of Signer(s)

    ______________________________________________________________________________

    


    Who
approved me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ities), and
by his/her/their signature(s) on the instrument the person(s), or the entity
upon behalf of which the person(s) acted, executed the instrument.

    


    I certify
that under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.

    


    WITNESS
my hand and official seal.

    Place
Notary Seal Above

    Signature
_______________________________________

    (Signature of Notary
Public)