Unassociated Document


    SECURITIES
      PURCHASE AGREEMENT

     

    This
      Securities Purchase Agreement (this “Agreement”)
      is
      dated as of August 1, 2007, by and among Captech Financial Group, Inc., a
      Florida corporation, and all predecessors thereto (collectively, the
“Company”)
      and the
      investors identified on the signature pages hereto (each, an “Investor”
      and
      collectively, the “Investors”).

     

    WHEREAS,
      on June 21, 2007, the Company entered into a Merger Agreement, which is attached
      to the Company’s Current Report on Form 8-K under the U.S. Securities Exchange
      Act of 1934, as amended (the “Merger
      Agreement”),
      filed
      with the Commission (as defined below) with Boo Koo Beverages Company, a Texas
      corporation (“Boo
      Koo”),
      pursuant to which the Company will, through a wholly-owned subsidiary, subject
      to the terms and conditions thereof, acquire all of the equity interest of
      Boo
      Koo and, indirectly, all of Boo Koo’s subsidiaries, in exchange for
      approximately 98.78% of the outstanding Common Stock of the Company immediately
      following the merger contemplated by the Merger Agreement (the “Merger”).
      

     

    WHEREAS,
      the closing of the Merger is conditioned, among other things, on the concurrent
      consummation of the financing contemplated by this Agreement.

     

    WHEREAS,
      subject to the terms and conditions set forth in this Agreement and pursuant
      to
      exemptions from registration under the Securities Act (as defined below), the
      Company desires to issue and sell to each Investor, and each Investor, severally
      and not jointly, desires to purchase from the Company, shares of the Company’s
      Common Stock, as more fully described in this Agreement.

     

    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 Investors agree as
      follows:

     

    ARTICLE
      1.

    DEFINITIONS

     

    1.1. Definitions.
      In
      addition to the terms defined elsewhere in this Agreement, for all purposes
      of
      this Agreement, the following terms shall have the meanings indicated in this
      Section 1.1:

     

    “Action”
      means
      any action, suit, inquiry, notice of violation, proceeding (including any
      partial proceeding such as a deposition) or investigation pending or, to the
      knowledge of Boo Koo, threatened in writing against or affecting the Company,
      any Subsidiary or any of their respective properties before or by any court,
      arbitrator, governmental or administrative agency, regulatory authority
      (federal, state, county, local or foreign), stock market, stock exchange or
      trading facility.

     

    “Additional
      Shares”
has
      the
      meaning set forth in Section 4.11(a).

     

    “Additional
      Shares Closing”
      means
      the closing of the purchase and sale of the Shares pursuant to Article
      II.

     


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    “Additional
      Shares Closing Date”
      means
      the Business Day on which all of the conditions set forth in Sections 5.3 and
      5.4 hereof are satisfied, or such other date as the parties may
      agree.

     

    “Affiliate”
      means
      any Person that, directly or indirectly through one or more intermediaries,
      controls or is controlled by or is under common control with a Person, as such
      terms are used in and construed under Rule 144.

     

    “Boo
      Koo”
      has the
      meaning set forth in the recitals to this Agreement.

     

    “Business
      Day”
      means
      any day except Saturday, Sunday and any day which is a federal legal holiday
      or
      a day on which banking institutions in the State of New York are authorized
      or
      required by law or other governmental action to close.

     

    “Buy-In”
      has
      the
      meaning set forth in Section 4.1(c).

     

    “Closing”
      means
      the closing of the purchase and sale of the Shares pursuant to Article
      II.

     

    “Closing
      Date”
      means
      the Business Day on which all of the conditions set forth in Sections 5.1 and
      5.2 hereof are satisfied, or such other date as the parties may
      agree.

     

    "Closing
      Escrow Agreement"
      means
      the Closing Escrow Agreement, dated as of the date hereof, between the Company
      and the escrow agent (the “Escrow
      Agent”)
      identified therein, in the form of Exhibit
      B
      hereto.

     

    “Commission”
      means
      the Securities and Exchange Commission.

     

    “Common
      Stock”
      means
      the common stock of the Company, no par value per share, and any securities
      into
      which such common stock may hereafter be reclassified or for which it may be
      exchanged as a class.

     

    “Company
      Counsel”
      means
      Lowenstein Sandler PC.

     

    “Company
      Deliverables”
      has the
      meaning set forth in Section 2.3(a).

     

    “Disclosure
      Materials”
      shall
      mean the SEC Reports, together with the Schedules to this
      Agreement.

     

    “Effective
      Date”
      means
      the date that the Registration Statement required by Section 2(a) of the
      Registration Rights Agreement is first declared effective by the
      Commission.

     

    “Evaluation
      Date” has
      the
      meaning set forth in Section 3.1(s).

     

    “Exchange
      Act”
      means
      the Securities Exchange Act of 1934, as amended.

     

    “GAAP”
      means
      U.S. generally accepted accounting principles.

     

    “Intellectual
      Property Rights”
      has the
      meaning set forth in Section 3.1(p).


    
      
        
        

      

      
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    “Investment
      Amount”
      means,
      with respect to each Investor, the Investment Amount indicated on such
      Investor’s signature page to this Agreement.

     

    “Investor
      Deliverables”
      has the
      meaning set forth in Section 2.3(b).

     

    “Investor
      Party”
      has the
      meaning set forth in Section 4.7.

     

    “Lien”
      means
      any lien, charge, encumbrance, security interest, right of first refusal, right
      of participation or other restrictions of any kind.

     

    “Losses”
      means
      any loss, liability, obligation, claim, contingency, damage, cost or expense,
      including all judgments, amounts paid in settlements, court costs and reasonable
      attorneys’ fees and costs of investigation related thereto.

     

    “Material
      Adverse Effect”
      means
      any of (i) a material and adverse effect on the legality, validity or
      enforceability of any Transaction Document, (ii) a material and adverse effect
      on the results of operations, assets, prospects, business or condition
      (financial or otherwise) of the Company and the Subsidiaries, taken as a whole,
      or (iii) a materially adverse impairment to the Company’s ability to perform on
      a timely basis its obligations under any Transaction Document.

     

    “Merger”
      has the
      meaning set forth in the recitals to this Agreement.

     

    “Merger
      Agreement”
      has the
      meaning set forth in the recitals to this Agreement.

     

    “New
      York Courts”
      means
      the state and federal courts sitting in the City of New York, Borough of
      Manhattan.

     

    “Notice
      of Acceptance”
      has the
      meaning set forth in Section 4.11(a).

     

    “Outside
      Date”
      means
      the sixtieth day following the date of this Agreement.

     

    “Per
      Share Purchase Price”
      equals
      $1.20.

     

    “Person”
      means an
      individual or corporation, partnership, trust, incorporated or unincorporated
      association, joint venture, limited liability company, joint stock company,
      government (or an agency or subdivision thereof) or other entity of any
      kind.

     

    “Proceeding”
      means an
      action, claim, suit, investigation or proceeding (including, without limitation,
      an investigation or partial proceeding, such as a deposition), whether commenced
      or threatened.

     

    “Registration
      Rights Agreement”
      means
      the Registration Rights Agreement, dated as of the date of this Agreement,
      among
      the Company and the Investors, in the form of Exhibit
      A
      hereto.

     

    
      
        
        

      

      
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    “Registration
      Statement”
      means a
      registration statement meeting the requirements set forth in the Registration
      Rights Agreement and covering the resale by the Investors of the
      Shares.

     

    “Rule
      144”
      means
      Rule 144 promulgated by the Commission pursuant to the Securities Act, as such
      Rule may be amended from time to time, or any similar rule or regulation
      hereafter adopted by the Commission having substantially the same effect as
      such
      Rule.

     

    “SEC
      Reports”
      means
      all reports required to be filed by the Company under the Securities Act and
      the
      Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the
      twelve months preceding the date hereof (or such shorter period as the Company
      was required by law to file such reports).

     

    “Securities
      Act”
      means
      the Securities Act of 1933, as amended.

     

    “Share
      Delivery Date”
      has the
      meaning set forth in Section 4.1(c).

     

    “Shares”
      means
      the shares of Common Stock being offered and sold to the Investors by the
      Company hereunder.

     

    “Short
      Sales”
      include,
      without limitation, all “short sales” as defined in Rule 200 promulgated under
      Regulation SHO under the Exchange Act and all types of direct and indirect
      stock
      pledges, forward sale contracts, options, puts, calls, swaps and similar
      arrangements (including on a total return basis), and sales and other
      transactions through non-US broker dealers or foreign regulated
      brokers.

     

    “Subsidiary”
      means
      any “significant subsidiary” as defined in Rule 1-02(w) of the Regulation S-X
      promulgated by the Commission under the Exchange Act.

     

    “Trading
      Day”
      means
      (i) a day on which the Common Stock is traded on a Trading Market (other than
      the OTC Bulletin Board), or (ii) if the Common Stock is not listed on a Trading
      Market (other than the OTC Bulletin Board), a day on which the Common Stock
      is
      traded in the over-the-counter market, as reported by the OTC Bulletin Board,
      or
      (iii) if the Common Stock is not quoted on any Trading Market, a day on which
      the Common Stock is quoted in the over-the-counter market as reported by the
      Pink Sheets LLC (or any similar organization or agency succeeding to its
      functions of reporting prices); provided, that in the event that the Common
      Stock is not listed or quoted as set forth in (i), (ii) and (iii) hereof, then
      Trading Day shall mean a Business Day.

     

    “Trading
      Market”
      means
      whichever of the New York Stock Exchange, the American Stock Exchange, the
      NASDAQ Global Select Market, the NASDAQ Global Market, the NASDAQ Capital Market
      or OTC Bulletin Board on which the Common Stock is listed or quoted for trading
      on the date in question.

     

    “Transaction
      Documents”
      means
      this Agreement, the Registration Rights Agreement, the Closing Escrow Agreement
      and any other documents or agreements executed in connection with the
      transactions contemplated hereunder.

    


    “Undersubscription
      Amount”
      has the
      meaning set forth in Section 4.11(a).

     

    
      
        
        

      

      
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    ARTICLE
      2.

     

    PURCHASE
      AND SALE

     

    2.1. Closing(a).
      Subject to the terms and conditions set forth in this Agreement, at the Closing
      the Company shall issue and sell to each Investor, and each Investor shall,
      severally and not jointly, purchase from the Company, the Shares representing
      such Investor’s Investment Amount. The Closing shall take place at the offices
      of Bryan Cave LLP, 1290 Avenue of the Americas, New York, NY 10104 on the
      Closing Date or at such other location or time as the parties may
      agree.

     

    2.2. Additional
      Shares Closing.
      Subject
      to the terms and conditions set forth in this Agreement, at the Additional
      Shares, Closing the Company shall issue and sell to each Investor, and each
      Investor shall, severally and not jointly, purchase from the Company, the
      Additional Shares subscribed for by such Investor pursuant to Section 4.11(a).
      The Additional Shares Closing shall take place at the offices of Bryan Cave
      LLP,
      1290 Avenue of the Americas, New York, NY 10104 on the Additional Shares Closing
      Date or at such other location or time as the parties may agree.

     

    2.3. Closing
      Deliveries.
      i) At
      the Closing, the Company shall deliver or cause to be delivered to each Investor
      the following (the “Company
      Deliverables”):

     

    (i) a
      certificate evidencing a number of Shares equal to such Investor’s Investment
      Amount divided by the Per Share Purchase Price, registered in the name of such
      Investor;

     

    (ii) the
      Closing Escrow Agreement, duly executed by all parties thereto;

     

    (iii) the
      legal
      opinion of Company Counsel, in a form reasonably acceptable to the Investors,
      addressed to the Investors; and

     

    (iv) the
      Registration Rights Agreement, duly executed by the Company.

     

    (b) At
      the
      Closing, each Investor shall deliver or cause to be delivered the following
      (collectively, the “Investors
      Deliverables”):

     


    (i) to
      the
      Escrow Agent for deposit and disbursement in accordance with the Closing Escrow
      Agreement, its Investment Amount, in United States dollars and in immediately
      available funds, by wire transfer to an account designated in writing by the
      Company for such purpose; and

     

     

      
        

      

    

     

    
      
        
        

      

      
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    (ii) to
      the
      Company, the Registration Rights Agreement, duly executed by such
      Investor.

     

    2.4. Additional
      Shares Closing Deliveries.
      i) At
      the Additional Shares Closing, the Company shall deliver or cause to be
      delivered to each Investor a certificate evidencing the number of Additional
      Shares subscribed for by such Investor pursuant to Section 4.11(a), registered
      in the name of such Investor;

     

    (b) At
      the
      Closing, each Investor shall deliver or cause to be delivered to the Company
      an
      amount equal to the product of the number of Additional Shares subscribed for
      by
      such Investor pursuant to Section 4.11(a) multiplied by the Per Share Purchase
      Price, in United States dollars and in immediately available funds, by wire
      transfer to an account designated in writing by the Company for such
      purpose.

     

    ARTICLE
      3.

     

    REPRESENTATIONS
      AND WARRANTIES

     

    3.1. Representations
      and Warranties of the Company.
      Except
      as set forth in the Disclosure Materials, the Company hereby makes the following
      representations and warranties to each Investor with the intention and
      understanding that, as to matters pertaining to Boo Koo and its subsidiaries
      and
      the Merger, such representations and warranties are made as of the Closing
      Date
      and assuming that the Merger shall have been consummated immediately prior
      to
      the Closing.

     

    (a) Subsidiaries.
      The
      Company has no direct or indirect Subsidiaries other than as specified in
Schedule
      3.1(a).
      The
      Company owns, directly or indirectly, all of the capital stock of each
      Subsidiary free and clear of any and all Liens, and all the issued and
      outstanding shares of capital stock of each Subsidiary are validly issued and
      are fully paid, non-assessable and free of preemptive and similar rights. As
      of
      the Closing, the Company shall own, through a subsidiary, 100% of the capital
      stock of Boo Koo in accordance with the Merger Agreement, free and clear of
      all
      Liens. The term “Subsidiaries” shall be deemed to include Boo Koo and its
      subsidiaries as if the Merger shall have been consummated as of the time of
      the
      execution of this Agreement, with the effect that all references to Subsidiaries
      of the Company in this Agreement shall also refer to Boo Koo and its
      subsidiaries.

     

    (b) Organization
      and Qualification.
      The
      Company and each Subsidiary are duly incorporated or otherwise organized,
      validly existing and in good standing under the laws of the jurisdiction of
      its
      incorporation or organization (as applicable), with the requisite power and
      authority to own and use its properties and assets and to carry on its business
      as currently conducted. Neither the Company nor any Subsidiary is in violation
      of any of the provisions of its respective certificate or articles of
      incorporation, bylaws or other organizational or charter documents. The Company
      and each Subsidiary are duly qualified to conduct its respective businesses
      and
      are in good standing as a foreign corporation or other entity in each
      jurisdiction in which the nature of the business conducted or property owned
      by
      it makes such qualification necessary, except where the failure to be so
      qualified or in good standing, as the case may be, would not, individually
      or in
      the aggregate, have or reasonably be expected to result in a Material Adverse
      Effect.

    
 

    
      
        
          
          

        

        
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    (c) Authorization;
      Enforcement.
      The
      Company has the requisite corporate power and authority to enter into and to
      consummate the transactions contemplated by each of the Transaction Documents
      and otherwise to carry out its obligations thereunder. The execution and
      delivery of each of the Transaction Documents by the Company and the
      consummation by it of the transactions contemplated thereby have been duly
      authorized by all necessary action on the part of the Company and no further
      action by the Board of Directors or stockholders of the Company is required
      in
      connection therewith. Each Transaction Document 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
      as
      such enforceability may be limited by applicable bankruptcy, insolvency,
      reorganization, moratorium, liquidation or similar laws relating to, or
      affecting generally the enforcement of, creditors’ rights and remedies or by
      equitable principles of general application.

     

    (d) No
      Conflicts.
      The
      execution, delivery and performance of the Transaction Documents by the Company
      and the consummation by the Company of the transactions contemplated thereby
      do
      not and will not (i) conflict with or violate any provision of the Company’s or
      any Subsidiary’s certificate or articles of incorporation, bylaws or other
      organizational or charter documents, or (ii) conflict with, or constitute a
      default (or an event that 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 (with or without notice, lapse of time or both)
      of,
      any material agreement, credit facility, debt or other instrument (evidencing
      a
      Company or Subsidiary debt or otherwise) or other understanding to which the
      Company or any Subsidiary is a party or by which any property or asset of the
      Company or any Subsidiary is bound or affected, or (iii) result in a violation
      of any law, rule, regulation, order, judgment, injunction, decree or other
      restriction of any court or governmental authority to which the Company or
      a
      Subsidiary is subject (including federal and state securities laws and
      regulations), or by which any property or asset of the Company or a Subsidiary
      is bound or affected; except in the case of each of clauses (ii) and (iii),
      such
      as would not, individually or in the aggregate, have or reasonably be expected
      to result in a Material Adverse Effect.

     

    (e) Filings,
      Consents and Approvals.
      The
      Company is not required to obtain any consent, waiver, authorization or order
      of, give any notice to, or make any filing or registration with, any United
      States court or other federal, state, local or other governmental authority
      or
      other Person in connection with the execution, delivery and performance by
      the
      Company of the Transaction Documents, other than (i) the filing with the
      Commission of one or more Registration Statements in accordance with the
      requirements of the Registration Rights Agreement, (ii) filings required by
      state securities laws, (iii) the filing of a Notice of Sale of Securities on
      Form D with the Commission under Regulation D of the Securities Act, (iv) the
      filings required in accordance with Section 4.5 and (v) those that have been
      made or obtained prior to the date of this Agreement. 

     

    
      
        
          
          

        

        
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    (f) Issuance
      of the Shares.
      The
      Shares have been duly authorized and, when issued and paid for in accordance
      with the Transaction Documents, will be duly and validly issued, fully paid
      and
      nonassessable, free and clear of all Liens.

     

    (g) Capitalization.
      The
      number of shares and type of all authorized, issued and outstanding capital
      stock of the Company, and all shares of Common Stock reserved for issuance
      under
      the Company’s various option and incentive plans, is specified in the Disclosure
      Materials. No securities of the Company are entitled to preemptive or similar
      rights, and no Person has any right of first refusal, preemptive right, right
      of
      participation, or any similar right to participate in the transactions
      contemplated by the Transaction Documents. Other than awards made after the
      date
      of the SEC Reports pursuant to the terms of the Company’s equity incentive
      plans, there are no outstanding options, warrants, scrip rights to subscribe
      to,
      calls or commitments of any character whatsoever relating to, or securities,
      rights or obligations convertible into or exchangeable for, or giving any Person
      any right to subscribe for or acquire, any shares of Common Stock, or contracts,
      commitments, understandings or arrangements by which the Company or any
      Subsidiary is or may become bound to issue additional shares of Common Stock,
      or
      securities or rights convertible or exchangeable into shares of Common Stock.
      The issue and sale of the Shares hereunder will not, immediately or with the
      passage of time, obligate the Company to issue shares of Common Stock or other
      securities to any Person (other than the Investors) and will not result in
      a
      right of any holder of Company securities to adjust the exercise, conversion,
      exchange or reset price under such securities.

     

    (h) Financial
      Statements.
      The Boo
      Koo Financial Statements (as defined hereafter) comply in all material respects
      with applicable accounting requirements and the rules and regulations of the
      Commission with respect thereto as in effect at the time of filing. The Boo
      Koo
      Financial Statements have been prepared in accordance with GAAP applied on
      a
      consistent basis during the periods involved, except as may be otherwise
      specified in such financial statements or the notes thereto, and fairly present
      in all material respects the financial position of Boo Koo as of and for the
      dates thereof and the results of operations and cash flows for the periods
      then
      ended. 

     

    (i) Material
      Changes.
      Since
      the date of the latest audited financial statements included within the SEC
      Reports, except as specifically disclosed in the SEC Reports or as a result
      of
      the Merger, to the knowledge of Boo Koo, after due inquiry, (i) there has been
      no event, occurrence or development that has had or that could reasonably be
      expected to result in a Material Adverse Effect, (ii) the Company has not
      incurred any liabilities (contingent or otherwise) other than (A) trade
      payables, accrued expenses and other liabilities incurred in the ordinary course
      of business consistent with past practice and (B) liabilities not required
      to be
      reflected in the Company’s financial statements pursuant to GAAP or required to
      be disclosed in filings made with the Commission, (iii) the Company has not
      altered its method of accounting or the identity of its auditors, (iv) the
      Company has not declared or made any dividend or distribution of cash or other
      property to its stockholders or purchased, redeemed or made any agreements
      to
      purchase or redeem any shares of its capital stock, and (v) the Company has
      not
      issued any equity securities to any officer, director or Affiliate, except
      pursuant to existing Company stock option plans. The Company does not have
      pending before the Commission any request for confidential treatment of
      information.

     

    
      
        
        

      

      
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    (j) Litigation.
      There
      is no Action which (i) adversely affects or challenges the legality, validity
      or
      enforceability of any of the Transaction Documents or the Shares or (ii) would,
      if there were an unfavorable decision, individually or in the aggregate, have
      or
      reasonably be expected to result in a Material Adverse Effect. Neither Boo
      Koo,
      nor any director or officer thereof (in his or her capacity as such), is or
      has
      been the subject of any Action involving a claim of violation of or liability
      under federal or state securities laws or a claim of breach of fiduciary duty.
      There has not been, and to the knowledge of Boo Koo, there is not pending any
      investigation by the Commission involving the Company or any current or former
      director or officer of the Company (in his or her capacity as such). To Boo
      Koo’s knowledge, the Commission has not issued any stop order or other order
      suspending the effectiveness of any registration statement filed by the Company
      or any Subsidiary under the Exchange Act or the Securities Act.

     

    (k) Labor
      Relations.
      No
      material labor dispute exists or, to the knowledge of Boo Koo, is imminent
      with
      respect to any of the employees of the Company.

     

    (l) Compliance.
      Neither
      the Company nor any Subsidiary (i) is in default under or in violation of (and
      no event has occurred that has not been waived that, with notice or lapse of
      time or both, would result in a default by the Company or any Subsidiary under),
      nor has the Company or any Subsidiary received notice of a claim that it is
      in
      default under or that it is in violation of, any indenture, loan or credit
      agreement or any other agreement or instrument to which it is a party or by
      which it or any of its properties is bound (whether or not such default or
      violation has been waived), (ii) is in violation of any order of any court,
      arbitrator or governmental body, or (iii) is or has been in violation of any
      statute, rule or regulation of any governmental authority, including without
      limitation all foreign, federal, state and local laws relating to taxes,
      environmental protection, occupational health and safety, product quality and
      safety and employment and labor matters, except in each case as would not,
      individually or in the aggregate, have or reasonably be expected to result
      in a
      Material Adverse Effect.

     

    (m) Regulatory
      Permits.
      The
      Company and the Subsidiaries possess all certificates, authorizations and
      permits issued by the appropriate federal, state, local or foreign regulatory
      authorities necessary to conduct their respective businesses, except where
      the
      failure to possess such permits would not, individually or in the aggregate,
      have or reasonably be expected to result in a Material Adverse Effect, and
      neither the Company nor any Subsidiary has received any notice of proceedings
      relating to the revocation or modification of any such permits.

     

    (n) Title
      to Assets.
      The
      Company and the Subsidiaries have good and marketable title in fee simple to
      all
      real property owned by them that is material to their respective businesses
      and
      good and marketable title in all personal property owned by them that is
      material to their respective businesses, in each case free and clear of all
      Liens, except for Liens as do not materially affect the value of such property
      and do not materially interfere with the use made and proposed to be made of
      such property by the Company and the Subsidiaries. Any real property and
      facilities held under lease by the Company and the Subsidiaries are held by
      them
      under valid, subsisting and enforceable leases of which the Company and the
      Subsidiaries are in compliance, except as would not, individually or in the
      aggregate, have or reasonably be expected to result in a Material Adverse
      Effect.

     

    
      
        
        

      

      
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    (o) Patents
      and Trademarks.
      The
      Company and the Subsidiaries have, or have rights to use, all patents, patent
      applications, trademarks, trademark applications, service marks, trade names,
      copyrights, licenses and other similar rights that are necessary or material
      for
      use in connection with their respective businesses and which the failure to
      so
      have would, individually or in the aggregate, have or reasonably be expected
      to
      result in a Material Adverse Effect (collectively, the “Intellectual
      Property Rights”).
      Neither the Company nor any Subsidiary has received a written notice that the
      Intellectual Property Rights used by the Company or any Subsidiary violates
      or
      infringes upon the rights of any Person. Except as set forth in the Disclosure
      Materials, to the knowledge of Boo Koo, all such Intellectual Property Rights
      are enforceable and there is no existing infringement by another Person of
      any
      of the Intellectual Property Rights.

     

    (p) Insurance.
      The
      Company and the Subsidiaries are insured by insurers of recognized financial
      responsibility against such losses and risks and in such amounts as the Company
      believes are prudent and customary in the businesses in which the Company and
      the Subsidiaries are engaged. The Company has no reason to believe that it
      will
      not be able to renew its and the Subsidiaries’ existing insurance coverage as
      and when such coverage expires or to obtain similar coverage from similar
      insurers as may be necessary to continue its business on terms consistent with
      market for the Company’s and such Subsidiaries’ respective lines of
      business.

     

    (q) Transactions
      With Affiliates and Employees.
      None of
      the officers or directors of Boo Koo and, to the knowledge of Boo Koo, none
      of
      the employees of Boo Koo is presently a party to any transaction with the
      Company or any Subsidiary (other than for services as employees, officers and
      directors), including any contract, agreement or other arrangement providing
      for
      the furnishing of services to or by, providing for rental of real or personal
      property to or from, or otherwise requiring payments to or from any officer,
      director or such employee or, to the knowledge of Boo Koo, any entity in which
      any officer, director, or any such employee has a substantial interest or is
      an
      officer, director, trustee or partner.

     

    (r) Internal
      Accounting Controls.
      Boo Koo
      maintains a system of internal accounting controls sufficient to provide
      reasonable assurance that (i) transactions are executed in accordance with
      management’s general or specific authorizations, (ii) transactions are recorded
      as necessary to permit preparation of financial statements in conformity with
      GAAP and to maintain asset accountability, (iii) access to assets is permitted
      only in accordance with management’s general or specific authorization, and (iv)
      the recorded accountability for assets is compared with the existing assets
      at
      reasonable intervals and appropriate action is taken with respect to any
      differences.

     

    (s) Solvency.
      Based
      on the financial condition of the Company as of the Closing Date (and assuming
      that the Closing and the transactions contemplated by the Merger Agreement
      shall
      have occurred), (i) the Company’s fair saleable value of its assets exceeds the
      amount that will be required to be paid on or in respect of the Company’s
      existing debts and other liabilities (including known contingent liabilities)
      as
      they mature, (ii) the Company’s assets do not constitute unreasonably small
      capital to carry on its business for the current fiscal year as now conducted
      and as proposed to be conducted including its capital needs taking into account
      the particular capital requirements of the business conducted by the Company,
      and projected capital requirements and capital availability thereof, and (iii)
      the current cash flow of the Company, together with the proceeds the Company
      would receive, were it to liquidate all of its assets, after taking into account
      all anticipated uses of the cash, would be sufficient to pay all amounts on
      or
      in respect of its debt when such amounts are required to be paid. The Company
      has no present intention to incur debts beyond its ability to pay such debts
      as
      they mature (taking into account the timing and amounts of cash to be payable
      on
      or in respect of its debt).

     

    
      
        
          
          

        

        
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    (t) Certain
      Fees.
      No
      brokerage or finder’s fees or commissions are or will be payable by the Company
      to any broker, financial advisor or consultant, finder, placement agent,
      investment banker, bank or other Person with respect to the transactions
      contemplated by this Agreement. The Investors shall have no obligation with
      respect to any fees or with respect to any claims (other than such fees or
      commissions owed by an Investor pursuant to written agreements executed by
      such
      Investor which fees or commissions shall be the sole responsibility of such
      Investor) made by or on behalf of other Persons for fees of a type contemplated
      in this Section that may be due in connection with the transactions contemplated
      by this Agreement.

     

    (u) Certain
      Registration Matters.
      Assuming the accuracy of the Investors’ representations and warranties set forth
      in Section 3.2(b)-(e), no registration under the Securities Act is required
      for
      the offer and sale of the Shares to the Investors under the Transaction
      Documents. The Company is eligible to register its Common Stock for resale
      by
      the Investors under Form S-1 or Form SB-2 promulgated under the Securities
      Act.
      The Company has not granted or agreed to grant to any Person any rights
      (including “piggy-back” registration rights) to have any securities of the
      Company registered with the Commission or any other governmental authority
      that
      have not been satisfied.

     

    (v) Listing
      and Maintenance Requirements.
      To the
      knowledge of Boo Koo, the Company has not, in the two years preceding the date
      hereof, received notice from any Trading Market to the effect that the Company
      is not in compliance with the listing or maintenance requirements thereof.
      The
      Company is, and has no reason to believe that it will not in the foreseeable
      future continue to be, in compliance with the listing and maintenance
      requirements for continued listing of the Common Stock on the Trading Market
      on
      which the Common Stock is currently listed or quoted. The issuance and sale
      of
      the Shares under the Transaction Documents does not contravene the rules and
      regulations of the Trading Market on which the Common Stock is currently listed
      or quoted, and no approval of the stockholders of the Company thereunder is
      required for the Company to issue and deliver to the Investors the Shares
      contemplated by the Transaction Documents.

     

    (w) Investment
      Company.
      The
      Company is not, and is not an Affiliate of, and immediately following the
      Closing will not have become, an “investment company” within the meaning of the
      Investment Company Act of 1940, as amended.

     

    (x) Application
      of Takeover Protections.
      The
      Company has taken all necessary action, if any, in order to render inapplicable
      any control share acquisition, business combination, poison pill (including
      any
      distribution under a rights agreement) or other similar anti-takeover provision
      under the Company’s Articles of Incorporation (or similar charter documents) or
      the laws of its state of incorporation that is or could become applicable to
      the
      Investors as a result of the Investors and the Company fulfilling their
      obligations or exercising their rights under the Transaction Documents,
      including without limitation the Company’s issuance of the Shares and the
      Investors’ ownership of the Shares.


    
      
        
        

      

      
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    (y) No
      Additional Agreements.
      The
      Company does not have any agreement or understanding with any Investor with
      respect to the transactions contemplated by the Transaction Documents other
      than
      as specified in the Transaction Documents.

     

    (z) Consultation
      with Auditors.
      Boo Koo
      has consulted its independent auditors concerning the accounting treatment
      of
      the transactions contemplated by the Transaction Documents, and in connection
      therewith has furnished such auditors complete copies of the Transaction
      Documents.

     

    (aa) Disclosure.
      The
      Company confirms that neither it nor any Person acting on its behalf has
      provided any Investor or its respective agents or counsel with any information
      that the Company believes constitutes material, non-public information
      concerning the Company, the Subsidiaries or their respective businesses, except
      insofar as the existence and terms of the proposed transactions contemplated
      hereunder and under the Merger Agreement may constitute such information and
      other than analysts’ reports prepared without input from the Company. The
      Company understands and confirms that the Investors will rely on the foregoing
      representations and covenants in effecting transactions in securities of the
      Company. Other than analysts’ reports prepared without input from the Company,
      all disclosure provided to the Investors regarding the Company, the Subsidiaries
      or their respective businesses and the transactions contemplated hereby,
      furnished by or on behalf of the Company (including the Company’s
      representations and warranties set forth in this Agreement) are true and correct
      in all material respects and do not contain any untrue statement of a material
      fact or omit to state any material fact necessary in order to make the
      statements made therein, in light of the circumstances under which they were
      made, not misleading.

     

    3.2. Representations
      and Warranties of the Investors.
      Each
      Investor hereby, for itself and for no other Investor, represents and warrants
      to the Company as follows:

     

    (a) Organization;
      Authority.
      Such
      Investor is an entity duly organized, validly existing and in good standing
      under the laws of the jurisdiction of its organization with the requisite
      corporate or partnership power and authority to enter into and to consummate
      the
      transactions contemplated by the applicable Transaction Documents and otherwise
      to carry out its obligations thereunder. The execution, delivery and performance
      by such Investor of the transactions contemplated by this Agreement has been
      duly authorized by all necessary corporate or, if such Investor is not a
      corporation, such partnership, limited liability company or other applicable
      like action, on the part of such Investor. Each of this Agreement and the
      Registration Rights Agreement has been duly executed by such Investor, and
      when
      delivered by such Investor in accordance with the terms hereof, will constitute
      the valid and legally binding obligation of such Investor, enforceable against
      it in accordance with its terms, except as such enforceability may be limited
      by
      applicable bankruptcy, insolvency, reorganization, moratorium, liquidation
      or
      similar laws relating to, or affecting generally the enforcement of, creditors’
rights and remedies or by other equitable principles of general
      application.


    
      
        
        

      

      
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    (b) Investment
      Intent.
      Such
      Investor is acquiring the Shares as principal for its own account for investment
      purposes only and not with a view to or for distributing or reselling such
      Shares or any part thereof, without prejudice, however, to such Investor’s right
      at all times to sell or otherwise dispose of all or any part of such Shares
      in
      compliance with applicable federal and state securities laws. Subject to the
      immediately preceding sentence, nothing contained herein shall be deemed a
      representation or warranty by such Investor to hold the Shares for any period
      of
      time. Such Investor is acquiring the Shares hereunder in the ordinary course
      of
      its business. Such Investor does not have any agreement or understanding,
      directly or indirectly, with any Person to distribute any of the
      Shares.

     

    (c) Investor
      Status.
      At the
      time such Investor was offered the Shares, it was, and at the date hereof it
      is,
      an “accredited investor” as defined in Rule 501(a) under the Securities Act.
      Such Investor is not a registered broker-dealer under Section 15 of the Exchange
      Act.

     

    (d) General
      Solicitation.
      Such
      Investor is not purchasing the Shares as a result of any advertisement, article,
      notice or other communication regarding the Shares published in any newspaper,
      magazine or similar media or broadcast over television or radio or presented
      at
      any seminar or any other general solicitation or general
      advertisement.

     

    (e) Access
      to Information.
      Such
      Investor acknowledges that it has reviewed the Disclosure Materials and has
      been
      afforded (i) the opportunity to ask such questions as it has deemed necessary
      of, and to receive answers from, representatives of the Company concerning
      the
      terms and conditions of the offering of the Shares and the merits and risks
      of
      investing in the Shares; (ii) access to information about the Company and the
      Subsidiaries and their respective financial condition, results of operations,
      business, properties, management and prospects sufficient to enable it to
      evaluate its investment; and (iii) the opportunity to obtain such additional
      information that the Company possesses or can acquire without unreasonable
      effort or expense that is necessary to make an informed investment decision
      with
      respect to the investment. Neither such inquiries nor any other investigation
      conducted by or on behalf of such Investor or its representatives or counsel
      shall modify, amend or affect such Investor’s right to rely on the truth,
      accuracy and completeness of the Disclosure Materials and the Company’s
      representations and warranties contained in the Transaction Documents.


     

    (f) Certain
      Trading Activities.
      Such
      Investor has not directly or indirectly, nor has any Person acting on behalf
      of
      or pursuant to any understanding with such Investor, engaged in any transactions
      in the securities of the Company (including, without limitations, any Short
      Sales involving the Company’s securities) since the earlier to occur of (1) the
      time that such Investor was first contacted by the Company or Roth Capital
      Partners, LLC regarding an investment in the Company and (2) the 30th
      day
      prior to the date of this Agreement. Such Investor covenants that neither it
      nor
      any Person acting on its behalf or pursuant to any understanding with it will
      engage in any transactions in the securities of the Company (including Short
      Sales) prior to the time that the transactions contemplated by this Agreement
      are publicly disclosed.


    
      
        
        

      

      
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    (g) Independent
      Investment Decision.
      Such
      Investor has independently evaluated the merits of its decision to purchase
      the
      Shares pursuant to the Transaction Documents, and such Investor confirms that
      it
      has not relied on the advice of any other Investor’s business and/or legal
      counsel in making such decision. Such Investor has not relied on the business
      or
      legal advice of Roth Capital Partners, LLC or any of its agents, counsel or
      Affiliates in making its investment decision hereunder, and confirms that none
      of such Persons has made any representations or warranties to such Investor
      in
      connection with the transactions contemplated by the Transaction
      Documents.

     

    The
      Company acknowledges and agrees that no Investor has made or makes any
      representations or warranties with respect to the transactions contemplated
      hereby other than those specifically set forth in this Section 3.2.

     

    ARTICLE
      4.

     

    OTHER
      AGREEMENTS OF THE PARTIES

     

    4.1.
      (a)
      Shares
      may
      only be disposed of in compliance with state and federal securities laws. In
      connection with any transfer of the Shares other than pursuant to an effective
      registration statement, to the Company, to an Affiliate of an Investor or in
      connection with a pledge as contemplated in Section 4.1(b), the Company may
      require the transferor thereof to provide to the Company an opinion of counsel
      selected by the transferor and reasonably satisfactory to the Company, the
      form
      and substance of which opinion shall be reasonably satisfactory to the Company,
      to the effect that such transfer does not require registration of such
      transferred Shares under the Securities Act.

     

    (b) Certificates
      evidencing the Shares will contain the following legend, until such time as
      they
      are not required under Section 4.1(c):

     

    THESE
      SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
      OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
      REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
      ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
      EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
      AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
      REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
      SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR
      REASONABLY SATISFACTORY TO THE COMPANY TO SUCH EFFECT, THE SUBSTANCE OF WHICH
      SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY. THESE SECURITIES MAY BE PLEDGED
      IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT SECURED BY SUCH
      SECURITIES.

     

    The
      Company acknowledges and agrees that an Investor may from time to time pledge,
      and/or grant a security interest in some or all of the Shares pursuant to a
      bona
      fide margin agreement in connection with a bona fide margin account and, if
      required under the terms of such agreement or account, such Investor may
      transfer pledged or secured Shares to the pledgees or secured parties. Such
      a
      pledge or transfer would not be subject to approval or consent of the Company
      and no legal opinion of legal counsel to the pledgee, secured party or pledgor
      shall be required in connection with the pledge, but such legal opinion may
      be
      required in connection with a subsequent transfer following default by the
      Investor transferee of the pledge. No notice shall be required of such pledge.
      At the appropriate Investor’s expense, the Company will execute and deliver such
      reasonable documentation as a pledgee or secured party of Shares may reasonably
      request in connection with a pledge or transfer of the Shares including the
      preparation and filing of any required prospectus supplement under Rule
      424(b)(3) of the Securities Act or other applicable provision of the Securities
      Act to appropriately amend the list of selling stockholders thereunder. Except
      as otherwise provided in Section 4.1(c), any Shares subject to a pledge or
      security interest as contemplated by this Section 4.1(b) shall continue to
      bear
      the legend set forth in this Section 4.1(b) and be subject to the restrictions
      on transfer set forth in Section 4.1(a).

     

    
      
        
        

      

      
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    (c) Certificates
      evidencing Shares shall not contain any legend (including the legend set forth
      in Section 4.1(b)): (i) following a sale or transfer of such Shares pursuant
      to
      an effective registration statement (including a Registration Statement), or
      (ii) following a sale or transfer of such Shares pursuant to Rule 144 (assuming
      the transferee is not an Affiliate of the Company), or (iii) while such Shares
      are eligible for sale under Rule 144(k). If an Investor shall make a sale or
      transfer of Shares either (x) pursuant to Rule 144 or (y) pursuant to a
      registration statement and in each case shall have delivered to the Company
      or
      the Company’s transfer agent the certificate representing Shares containing a
      restrictive legend which are the subject of such sale or transfer
      and a representation letter in customary form (the
      date of such sale or transfer and Shares delivery being the “Share
      Delivery Date”)
      and (1) the Company shall fail to deliver or cause to be delivered to such
      Investor a certificate representing such Shares that is free from all
      restrictive or other legends by the third Trading Day following the Share
      Delivery Date and (2) following such third Trading Day after the Share Delivery
      Date and prior to the time such Shares are received free from restrictive
      legends, the Investor, or any third party on behalf of such Investor, purchases
      (in an open market transaction or otherwise) shares of Common Stock to deliver
      in satisfaction of a sale by the Investor of such Shares (a "Buy-In"),
      then the Company shall pay in cash to the Investor (for costs incurred either
      directly by such Investor or on behalf of a third party) the amount by which
      the
      total purchase price paid for Common Stock as a result of the Buy-In (including
      brokerage commissions, if any) exceed the proceeds received by such Investor
      as
      a result of the sale to which such Buy-In relates. The Investor shall provide
      the Company written notice indicating the amounts payable to the Investor in
      respect of the Buy-In.

     

    4.2. Furnishing
      of Information.
      As long
      as any Investor owns the Shares, the Company covenants to timely file (or obtain
      extensions in respect thereof and file within the applicable grace period)
      all
      reports required to be filed by the Company after the date hereof pursuant
      to
      the Exchange Act. As long as any Investor owns Shares, if the Company is not
      required to file reports pursuant to such laws, it will prepare and furnish
      to
      the Investors and make publicly available in accordance with Rule 144(c) such
      information as is required for the Investors to sell the Shares under Rule
      144.

     

    
      
        
        

      

      
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    4.3. Integration.
      The
      Company shall not, and shall use its best efforts to ensure that no Affiliate
      of
      the Company shall, sell, offer for sale or solicit offers to buy or otherwise
      negotiate in respect of any security (as defined in Section 2 of the Securities
      Act) that would be integrated with the offer or sale of the Shares in a manner
      that would require the registration under the Securities Act of the sale of
      the
      Shares to the Investors, or that would be integrated with the offer or sale
      of
      the Shares for purposes of the rules and regulations of any Trading Market
      in a
      manner that would require stockholder approval of the sale of the Shares to
      the
      Investors.

     

    4.4. Subsequent
      Registrations.
      Other
      than pursuant to the Registration Rights Agreement, prior to the Effective
      Date
      of a Registration Statement resulting in all Registrable Securities (as defined
      in the Registration Rights Agreement) being registered for resale pursuant
      to
      one or more effective Registration Statements, the Company may not file any
      registration statement (other than on Form S-8) with the Commission with respect
      to any securities of the Company.

     

    4.5. Securities
      Laws Disclosure; Publicity.
      By 9:00
      a.m. (New York time) on the Trading Day following the execution of this
      Agreement, and by 9:00 a.m. (New York time) on the Trading Day following the
      Closing Date, the Company shall issue press releases disclosing the transactions
      contemplated hereby and the Closing. No later than the second Trading Day
      following the execution of this Agreement the Company will file a Current Report
      on Form 8-K disclosing the material terms of the Transaction Documents (and
      attach as exhibits thereto the Transaction Documents), and no later that the
      second Trading Day following the Closing Date the Company will file an
      additional Current Report on Form 8-K to disclose the Closing. In addition,
      the
      Company will make such other filings and notices in the manner and time required
      by the Commission and the Trading Market on which the Common Stock is listed.
      Notwithstanding the foregoing, the Company shall not publicly disclose the
      name
      of any Investor, or include the name of any Investor in any filing with the
      Commission (other than the Registration Statement and any exhibits to filings
      made in respect of this transaction in accordance with periodic filing
      requirements under the Exchange Act) or any regulatory agency or Trading Market,
      without the prior written consent of such Investor, except to the extent such
      disclosure is required by law or Trading Market regulations.

     

    4.6. Limitation
      on Issuance of Future Priced Securities.
      During
      the six months following the Closing Date, the Company shall not issue any
      “Future Priced Securities” as such term is described by NASD
      IM-4350-1.

     

    4.7. Indemnification
      of Investors(a).
      In
      addition to the indemnity provided in the Registration Rights Agreement, the
      Company will indemnify and hold the Investors and their directors, officers,
      shareholders, partners, employees and agents (each, an “Investor
      Party”)
      harmless from any and all losses, liabilities, obligations, claims,
      contingencies, damages, costs and expenses, including all judgments, amounts
      paid in settlements, court costs and reasonable attorneys’ fees and costs of
      investigation (collectively, “Losses”)
      that
      any such Investor Party may suffer or incur as a result of or relating to any
      misrepresentation, breach or inaccuracy of any representation, warranty,
      covenant or agreement made by the Company in any Transaction Document. In
      addition to the indemnity contained herein, the Company will reimburse each
      Investor Party for its reasonable legal and other expenses (including the cost
      of any investigation, preparation and travel in connection therewith) incurred
      in connection therewith, as such expenses are incurred. Except as otherwise
      set
      forth herein, the mechanics and procedures with respect to the rights and
      obligations under this Section 4.7 shall be the same as those set forth in
      Section 5 of the Registration Rights Agreement.

     

     

      
        

      

    

     

    
      
        
        

      

      
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    4.8. Non-Public
      Information.
      The
      Company covenants and agrees that after the date hereof, except as contemplated
      by Section 3.1(bb), neither it nor any other Person acting on its behalf will
      provide any Investor or its agents or counsel with any information that the
      Company believes constitutes material non-public information, unless prior
      thereto such Investor shall have executed a written agreement regarding the
      confidentiality and use of such information. The Company understands and
      confirms that each Investor shall be relying on the foregoing representations
      in
      effecting transactions in securities of the Company.

     

    4.9. Listing
      of Shares.
      The
      Company agrees, (i) if the Company applies to have the Common Stock traded
      on
      any other Trading Market, it will include in such application the Shares, and
      will take such other action as is necessary or desirable to cause the Shares
      to
      be listed on such other Trading Market as promptly as possible, and (ii) it
      will
      take all action reasonably necessary to continue the listing and trading of
      its
      Common Stock on a Trading Market and will comply in all material respects with
      the Company’s reporting, filing and other obligations under the bylaws or rules
      of the Trading Market.

     

    4.10. Use
      of
      Proceeds
      The
      Company will use the net proceeds from the sale of the Shares hereunder for
      working capital purposes and for the satisfaction of a portion of the Company’s
      debt.

     

    4.11. Additional
      Shares.
      

     

    (a) Until
      the
      45th calendar day following the Closing Date, the Investors shall have the
      right
      to purchase, at the Per Share Purchase Price, in the aggregate up to $5,000,000
      of the Common Stock of the Company (the "Additional
      Shares"). 
      Each Investor shall have the right to purchase (i) up to its pro rata portion
      (based upon such Investor’s Investment Amount relative to the Investment Amount
      of all Investors hereunder) of the Additional Shares (the “Basic
      Amount”) at
      the Per Share Purchase Price and upon the same terms and conditions set forth
      in
      the Transaction Documents as they apply to the Shares and (ii) with respect
      to
      each Investor that elects to purchase its Basic Amount, an additional portion
      of
      the Additional Shares attributable to the Basic Amounts of other
      Investors as such Investor shall indicate it will purchase or acquire should
      the
      other Investors subscribe for less than their Basic Amounts (the “Undersubscription
      Amount”).
      For a
      period of one (1) Business Day (which shall occur following the expiration
      of the 45 calendar day period referenced above) after receipt of a notice from
      the Company that all Basic Amounts have not been subscribed for, each Investor
      shall have the option, exercisable by written notice to the Company, to accept
      the Company’s offer as to, if such Investor shall elect to purchase all of its
      Basic Amount, the Undersubscription Amount, if any, that such Investor elects
      to
      purchase (in either case, the “Notice
      of Acceptance”).
      If the
      Basic Amounts subscribed for by all Investors are less than the total of all
      of
      the Basic Amounts, then each Investor who has set forth an Undersubscription
      Amount in its Notice of Acceptance shall be entitled to purchase on a pro rata
      basis, in addition to the Basic Amounts subscribed for, the Undersubscription
      Amount it has subscribed for.

     

    
      
        
          
          

        

        
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    (b) Limitations
      on Exercise.
      Notwithstanding anything to the contrary contained herein, the number of
      Additional Shares that may be acquired by an Investor pursuant to Section
      4.11(a) shall be limited to the extent necessary to insure that, following
      such
      issuance of Additional Shares, the total number of shares of Common Stock then
      beneficially owned by such Investor and its Affiliates and any other Persons
      whose beneficial ownership of Common Stock would be aggregated with the
      Investor's for purposes of Section 13(d) of the Exchange Act, does not exceed
      9.99% of the total number of issued and outstanding shares of Common Stock
      (including for such purpose the shares of Common Stock issuable upon such
      exercise). For such purposes, beneficial ownership shall be determined in
      accordance with Section 13(d) of the Exchange Act and the rules and regulations
      promulgated thereunder. This restriction may not be waived, and notwithstanding
      anything to the contrary in any Transaction Document, may not be amended by
      agreement of the parties. Notwithstanding anything to the contrary contained
      in
      this Agreement or in any other Transaction Document, (a) no term of this Section
      may be waived by any party, nor amended such that the threshold percentage
      of
      ownership would be directly or indirectly increased, (b) no amendment or
      modification to any Transaction Document may be made such that it would have
      the
      effect of modifying or waiving any term of this Section in violation of this
      restriction, (c) this restriction runs with the Agreement and may not be
      modified or waived by any subsequent holder hereof and (d) any attempted waiver,
      modification or amendment of this Section will be void ab initio.

     

    ARTICLE
      5.

    CONDITIONS
      PRECEDENT TO CLOSING

     

    5.1. Conditions
      Precedent to the Obligations of the Investors to Purchase Shares.
      The
      obligation of each Investor to acquire Shares at the Closing is subject to
      the
      satisfaction or waiver by such Investor, at or before the Closing, of each
      of
      the following conditions:

     

    (a) Representations
      and Warranties.
      The
      representations and warranties of the Company contained herein shall be true
      and
      correct in all material respects as of the date when made and as of the Closing
      as though made on and as of such date;

     

    (b) Performance.
      The
      Company shall have performed, satisfied and complied in all material respects
      with all covenants, agreements and conditions required by the Transaction
      Documents to be performed, satisfied or complied with by it at or prior to
      the
      Closing;

     

    (c) No
      Injunction.
      No
      statute, rule, regulation, executive order, decree, ruling or injunction shall
      have been enacted, entered, promulgated or endorsed by any court or governmental
      authority of competent jurisdiction that prohibits the consummation of any
      of
      the transactions contemplated by the Transaction Documents;

     

    (d) Adverse
      Changes.
      Since
      the date of execution of this Agreement, no event or series of events shall
      have
      occurred that reasonably would have or result in a Material Adverse
      Effect;

     

    (e) Boo
      Koo Financial Statements.
      Boo Koo
      shall have delivered to the Company audited financial statements for the fiscal
      years ended December 31, 2006 and 2005 (collectively, the “Boo
      Koo Financial Statements”);

     

    
      
        
        

      

      
        18

        
          

        

      

      
        
        

      

    

     

    (f) Merger
      Agreement Form 8-K.
      Concurrently with or immediately prior to the Closing, the Company shall have
      acquired all of the outstanding capital stock of Boo Koo pursuant to the Merger
      Agreement, and the Company shall provide the Investors with the Current Report
      on Form 8-K to be filed on the Trading Day following the closing date under
      the
      Merger Agreement, containing the audited financial statements of Boo Koo and
      other required disclosure with respect to Boo Koo;

     

    (g) Company
      Deliverables.
      The
      Company shall have delivered the Company Deliverables in accordance with Section
      2.3(a); and

     

    (h) Termination.
      This
      Agreement shall not have been terminated as to such Investor in accordance
      with
      Section 6.5.

     

    5.2. Conditions
      Precedent to the Obligations of the Company to Sell Shares.
      The
      obligation of the Company to sell Shares at the Closing is subject to the
      satisfaction or waiver by the Company, at or before the Closing, of each of
      the
      following conditions:

     

    (a) Representations
      and Warranties.
      The
      representations and warranties of each Investor contained herein shall be true
      and correct in all material respects as of the date when made and as of the
      Closing Date as though made on and as of such date;

     

    (b) Performance.
      Each
      Investor shall have performed, satisfied and complied in all material respects
      with all covenants, agreements and conditions required by the Transaction
      Documents to be performed, satisfied or complied with by such Investor at or
      prior to the Closing;

     

    (c) No
      Injunction.
      No
      statute, rule, regulation, executive order, decree, ruling or injunction shall
      have been enacted, entered, promulgated or endorsed by any court or governmental
      authority of competent jurisdiction that prohibits the consummation of any
      of
      the transactions contemplated by the Transaction Documents;

     

    (d) Investors
      Deliverables.
      Each
      Investor shall have delivered its Investors Deliverables in accordance with
      Section 2.3(b); and

     

    (e) Termination.
      This
      Agreement shall not have been terminated as to such Investor in accordance
      with
      Section 6.5.

     

    5.3. Conditions
      Precedent to the Obligations of the Investors to Purchase Additional
      Shares.
      The
      obligation of each Investor to acquire Additional Shares at the Additional
      Shares Closing is subject to the satisfaction or waiver by such Investor, at
      or
      before the Additional Shares Closing, of each of the following
      conditions:

     

    (a) Representations
      and Warranties.
      The
      representations and warranties of the Company contained herein shall be true
      and
      correct in all material respects as of the date when made and as of the
      Additional Shares Closing as though made on and as of such date;

     

    (b) Performance.
      The
      Company shall have performed, satisfied and complied in all material respects
      with all covenants, agreements and conditions required by the Transaction
      Documents to be performed, satisfied or complied with by it at or prior to
      the
      Additional Shares Closing;

     

    
      
        
        

      

      
        19

        
          

        

      

      
        
        

      

    

     

    (c) No
      Injunction.
      No
      statute, rule, regulation, executive order, decree, ruling or injunction shall
      have been enacted, entered, promulgated or endorsed by any court or governmental
      authority of competent jurisdiction that prohibits the consummation of any
      of
      the transactions contemplated by the Transaction Documents;

     

    (d) Adverse
      Changes.
      Since
      the date of execution of this Agreement, no event or series of events shall
      have
      occurred that reasonably would have or result in a Material Adverse
      Effect;

     

    (e) Company
      Deliverables.
      The
      Company shall have complied with Section 2.4(a); and

     

    (f) Termination.
      This
      Agreement shall not have been terminated as to such Investor in accordance
      with
      Section 6.5.

     

    5.4. Conditions
      Precedent to the Obligations of the Company to Sell Additional
      Shares.
      The
      obligation of the Company to sell Additional Shares at the Additional Shares
      Closing is subject to the satisfaction or waiver by the Company, at or before
      the Additional Shares Closing, of each of the following conditions:

     

    (a) Representations
      and Warranties.
      The
      representations and warranties of each Investor contained herein shall be true
      and correct in all material respects as of the date when made and as of the
      Additional Shares Closing Date as though made on and as of such
      date;

     

    (b) Performance.
      Each
      Investor shall have performed, satisfied and complied in all material respects
      with all covenants, agreements and conditions required by the Transaction
      Documents to be performed, satisfied or complied with by such Investor at or
      prior to the Additional Shares Closing;

     

    (c) No
      Injunction.
      No
      statute, rule, regulation, executive order, decree, ruling or injunction shall
      have been enacted, entered, promulgated or endorsed by any court or governmental
      authority of competent jurisdiction that prohibits the consummation of any
      of
      the transactions contemplated by the Transaction Documents;

     

    (d) Investors
      Deliverables.
      Each
      Investor purchasing Additional Shares shall have complied with Section 2.4(b);
      and

     

    (e) Termination.
      This
      Agreement shall not have been terminated as to such Investor in accordance
      with
      Section 6.5.

     

    ARTICLE
      6.

    MISCELLANEOUS

     

    6.1. Fees
      and Expenses.
      Each
      party shall pay the fees and expenses of its advisers, counsel, accountants
      and
      other experts, if any, and all other expenses incurred by such party incident
      to
      the negotiation, preparation, execution, delivery and performance of the
      Transaction Documents. The Company shall pay all stamp and other taxes and
      duties levied in connection with the sale of the Shares.

     

    
      
        
        

      

      
        20

        
          

        

      

      
        
        

      

    

     

    6.2. Entire
      Agreement.
      The
      Transaction Documents, together with the Exhibits and Schedules thereto, contain
      the entire understanding of the parties with respect to the subject matter
      hereof and supersede all prior agreements, understandings, discussions and
      representations, oral or written, with respect to such matters, which the
      parties acknowledge have been merged into such documents, exhibits and
      schedules.

     

    6.3. Notices.
      Any and
      all notices or other communications or deliveries required or permitted to
      be
      provided hereunder shall be in writing and shall be deemed given and effective
      on the earliest of (a) the date of transmission, if such notice or communication
      is delivered via facsimile (provided the sender receives a machine-generated
      confirmation of successful transmission) at the facsimile number specified
      in
      this Section prior to 6:30 p.m. (New York City time) on a Trading Day, (b)
      the
      next Trading Day after the date of transmission, if such notice or communication
      is delivered via facsimile at the facsimile number specified in this Section
      on
      a day that is not a Trading Day or later than 6:30 p.m. (New York City time)
      on
      any Trading Day, (c) upon actual receipt by the party to whom such notice is
      required to be given, if sent by any means other than facsimile transmission.
      The address for such notices and communications shall be as
      follows:

    

      
        	
                If
                  to the Company:

              	
                Captech
                  Financial Group, Inc.

              
	 	
                4951
                  Airport Parkway, Suite 660

              
	 	
                Addison,
                  Texas 75001

              
	 	
                Facsimile:
                  (972) 930-9463

              
	 	
                Attn.:
                  Chief Financial Officer

              
	 	 
	
                With
                  a copy to:

              	
                Lowenstein
                  Sandler PC

              
	 	
                65
                  Livingston Avenue

              
	 	
                Roseland,
                  New Jersey 07068

              
	 	
                Facsimile:
                  (973) 597-2477

              
	 	
                Attn.:
                  Steven M. Skolnick, Esq.

              
	 	 
	
                If
                  to an Investor:

              	
                To
                  the address set forth under such Investor’s name on the signature pages
                  hereof;

              


      

    

     

    or
      such
      other address as may be designated in writing hereafter, in the same manner,
      by
      such Person.

     

    6.4. Amendments;
      Waivers; No Additional Consideration.
      No
      provision of this Agreement may be waived or amended except in a written
      instrument signed by the Company and the Investors holding a majority of the
      Shares. No waiver of any default with respect to any provision, condition or
      requirement of this Agreement shall be deemed to be a continuing waiver in
      the
      future or a waiver of any subsequent default or a waiver of any other provision,
      condition or requirement hereof, nor shall any delay or omission of either
      party
      to exercise any right hereunder in any manner impair the exercise of any such
      right. No consideration shall be offered or paid to any Investor to amend or
      consent to a waiver or modification of any provision of any Transaction Document
      unless the same consideration is also offered to all Investors who then hold
      Shares.

     

    
      
        
        

      

      
        21

        
          

        

      

      
        
        

      

    

     

    6.5. Termination.
      This
      Agreement may be terminated prior to Closing:

     

    (a) by
      written agreement of the Investors and the Company; and

     

    (b) by
      the
      Company or an Investor (as to itself but no other Investor) upon written notice
      to the other, if the Closing shall not have taken place by 6:30 p.m. Eastern
      time on the Outside Date; provided,
      that
      the right to terminate this Agreement under this Section 6.5(b) shall not
      be available to any Person whose failure to comply with its obligations under
      this Agreement has been the cause of or resulted in the failure of the Closing
      to occur on or before such time.

     

    In
      the
      event of a termination pursuant to this Section, the Company shall promptly
      notify all non-terminating Investors. Upon a termination in accordance with
      this
      Section 6.5, the Company and the terminating Investor(s) shall not have any
      further obligation or liability (including as arising from such termination)
      to
      the other and no Investor will have any liability to any other Investor under
      the Transaction Documents as a result therefrom.

     

    6.6. Construction.
      The
      headings herein are for convenience only, do not constitute a part of this
      Agreement and shall not be deemed to limit or affect any of the provisions
      hereof. The language used in this Agreement will be deemed to be the language
      chosen by the parties to express their mutual intent, and no rules of strict
      construction will be applied against any party. This Agreement shall be
      construed as if drafted jointly by the parties, and no presumption or burden
      of
      proof shall arise favoring or disfavoring any party by virtue of the authorship
      of any provisions of this Agreement or any of the Transaction
      Documents.

     

    6.7. Successors
      and Assigns.
      This
      Agreement shall be binding upon and inure to the benefit of the parties and
      their successors and permitted assigns. The Company may not assign this
      Agreement or any rights or obligations hereunder without the prior written
      consent of the Investors. Any Investor may assign any or all of its rights
      under
      this Agreement to any Person to whom such Investor assigns or transfers any
      Shares, provided such transfer complies with applicable securities laws and
      the
      transferee agrees in writing to be bound, with respect to the transferred
      Shares, by the provisions hereof that apply to the “Investors.”

     

    6.8. No
      Third-Party Beneficiaries.
      This
      Agreement is intended for the benefit of the parties hereto and their respective
      successors and permitted assigns and is not for the benefit of, nor may any
      provision hereof be enforced by, any other Person, except as otherwise set
      forth
      in Section 4.7 (as to each Investor Party).

     

    
      
        
        

      

      
        22

        
          

        

      

      
        
        

      

    

     

    6.9. Governing
      Law.
      All
      questions concerning the construction, validity, enforcement and interpretation
      of this Agreement shall be governed by and construed and enforced in accordance
      with the internal laws of the State of New York, without regard to the
      principles of conflicts of law thereof. Each party agrees that all Proceedings
      concerning the interpretations, enforcement and defense of the transactions
      contemplated by this Agreement and any other Transaction Documents (whether
      brought against a party hereto or its respective Affiliates, employees or
      agents) shall be commenced exclusively in the New York Courts. Each party hereto
      hereby irrevocably submits to the exclusive jurisdiction of the New York Courts
      for the adjudication of any dispute hereunder or in connection herewith or
      with
      any transaction contemplated hereby or discussed herein (including with respect
      to the enforcement of the any of the Transaction Documents), and hereby
      irrevocably waives, and agrees not to assert in any Proceeding, any claim that
      it is not personally subject to the jurisdiction of any such New York Court,
      or
      that such Proceeding has been commenced in an improper or inconvenient forum.
      Each party hereto hereby irrevocably waives personal service of process and
      consents to process being served in any such Proceeding by mailing a copy
      thereof via registered or certified mail or overnight delivery (with evidence
      of
      delivery) to such party at the address in effect for notices to it under this
      Agreement and agrees that such service shall constitute good and sufficient
      service of process and notice thereof. Nothing contained herein shall be deemed
      to limit in any way any right to serve process in any manner permitted by law.
      Each party hereto hereby irrevocably waives, to the fullest extent permitted
      by
      applicable law, any and all right to trial by jury in any legal proceeding
      arising out of or relating to this Agreement or the transactions contemplated
      hereby. If either party shall commence a Proceeding to enforce any provisions
      of
      a Transaction Document, then the prevailing party in such Proceeding shall
      be
      reimbursed by the other party for its reasonable attorneys’ fees and other costs
      and expenses incurred with the investigation, preparation and prosecution of
      such Proceeding.

     

    6.10. Survival.
      The
      representations, warranties, agreements and covenants contained herein shall
      survive the Closing and the delivery of the Shares; provided,
      however, that the representations and warranties contained herein shall expire
      on the third anniversary of the Closing.

     

    6.11. Execution.
      This
      Agreement may be executed in two or more counterparts, all of which when taken
      together 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, it being understood that both parties need not sign the same
      counterpart. In the event that any signature is delivered by facsimile
      transmission, such signature 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 signature page were an original
      thereof.

     

    6.12. Severability.
      If any
      provision of this Agreement is held to be invalid or unenforceable in any
      respect, the validity and enforceability of the remaining terms and provisions
      of this Agreement shall not in any way be affected or impaired thereby and
      the
      parties will attempt to agree upon a valid and enforceable provision that is
      a
      reasonable substitute therefor, and upon so agreeing, shall incorporate such
      substitute provision in this Agreement.

     

    6.13. Rescission
      and Withdrawal Right.
      Notwithstanding anything to the contrary contained in (and without limiting
      any
      similar provisions of) the Transaction Documents, whenever any Investor
      exercises a right, election, demand or option under a Transaction Document
      and
      the Company does not timely perform its related obligations within the periods
      therein provided, then such Investor may rescind or withdraw, in its sole
      discretion from time to time upon written notice to the Company, any relevant
      notice, demand or election in whole or in part without prejudice to its future
      actions and rights.

     

    
      
        
        

      

      
        23

        
          

        

      

      
        
        

      

    

     

    6.14. Replacement
      of Shares.
      If any
      certificate or instrument evidencing any Shares is mutilated, lost, stolen
      or
      destroyed, the Company shall issue or cause to be issued in exchange and
      substitution for and upon cancellation thereof, or in lieu of and substitution
      therefor, a new certificate or instrument, but only upon receipt of evidence
      reasonably satisfactory to the Company of such loss, theft or destruction and
      customary and reasonable indemnity, if requested. The applicants for a new
      certificate or instrument under such circumstances shall also pay any reasonable
      third-party costs associated with the issuance of such replacement Shares.
      If a
      replacement certificate or instrument evidencing any Shares is requested due
      to
      a mutilation thereof, the Company may require delivery of such mutilated
      certificate or instrument as a condition precedent to any issuance of a
      replacement.

     

    6.15. Remedies.
      In
      addition to being entitled to exercise all rights provided herein or granted
      by
      law, including recovery of damages, each of the Investors and the Company will
      be entitled to specific performance under the Transaction Documents. The parties
      agree that monetary damages may not be adequate compensation for any loss
      incurred by reason of any breach of obligations described in the foregoing
      sentence and hereby agrees to waive in any action for specific performance
      of
      any such obligation the defense that a remedy at law would be
      adequate.

     

    6.16. Payment
      Set Aside.
      To the
      extent that the Company makes a payment or payments to any Investor pursuant
      to
      any Transaction Document or an Investor enforces or exercises its rights
      thereunder, and such payment or payments or the proceeds of such enforcement
      or
      exercise or any part thereof are subsequently invalidated, declared to be
      fraudulent or preferential, set aside, recovered from, disgorged by or are
      required to be refunded, repaid or otherwise restored to the Company, a trustee,
      receiver or any other person under any law (including, without limitation,
      any
      bankruptcy law, state or federal law, common law or equitable cause of action),
      then to the extent of any such restoration the obligation or part thereof
      originally intended to be satisfied shall be revived and continued in full
      force
      and effect as if such payment had not been made or such enforcement or setoff
      had not occurred.

     

    6.17. Independent
      Nature of Investors’ Obligations and Rights.
      The
      obligations of each Investor under any Transaction Document are several and
      not
      joint with the obligations of any other Investor, and no Investor shall be
      responsible in any way for the performance of the obligations of any other
      Investor under any Transaction Document. The decision of each Investor to
      purchase Shares pursuant to the Transaction Documents has been made by such
      Investor independently of any other Investor. Nothing contained herein or in
      any
      Transaction Document, and no action taken by any Investor pursuant thereto,
      shall be deemed to constitute the Investors as a partnership, an association,
      a
      joint venture or any other kind of entity, or create a presumption that the
      Investors are in any way acting in concert or as a group with respect to such
      obligations or the transactions contemplated by the Transaction Documents.
      Each
      Investor acknowledges that no other Investor has acted as agent for such
      Investor in connection with making its investment hereunder and that no Investor
      will be acting as agent of such Investor in connection with monitoring its
      investment in the Shares or enforcing its rights under the Transaction
      Documents. Each Investor shall be entitled to independently protect and enforce
      its rights, including without limitation the rights arising out of this
      Agreement or out of the other Transaction Documents, and it shall not be
      necessary for any other Investor to be joined as an additional party in any
      proceeding for such purpose. The Company acknowledges that each of the Investors
      has been provided with the same Transaction Documents for the purpose of closing
      a transaction with multiple Investors and not because it was required or
      requested to do so by any Investor.

     

    
      
        
        

      

      
        24

        
          

        

      

      
        
        

      

    

     

    6.18. Limitation
      of Liability.
      Notwithstanding anything herein to the contrary, the Company acknowledges and
      agrees that the liability of an Investor arising directly or indirectly, under
      any Transaction Document of any and every nature whatsoever shall be satisfied
      solely out of the assets of such Investor, and that no trustee, officer, other
      investment vehicle or any other Affiliate of such Investor or any investor,
      shareholder or holder of shares of beneficial interest of such a Investor shall
      be personally liable for any liabilities of such Investor.

     

    [REMAINDER
      OF PAGE INTENTIONALLY LEFT BLANK

    SIGNATURE
      PAGES FOLLOW]

     

    
      
        
          
          

        

        
          25

          
            

          

        

        
          
          

        

      

    

    


    IN
      WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
      Agreement to be duly executed by their respective authorized signatories as
      of
      the date first indicated above.

     

    
      	 	 	 
	 	CAPTECH
              FINANCIAL GROUP, INC.
	 
 	 
 	 
 
	 	By:  	
              /s/
                Daniel Lee

            
	 	
              
Name:
Daniel
              Lee
	 	Title:
              CEO


    

    


     

    [REMAINDER
      OF PAGE INTENTIONALLY LEFT BLANK

    SIGNATURE
      PAGE FOR INVESTORS FOLLOWS]

     

    
      
        
        

      

      
        26

        
          

        

      

      
        
        

      

    


    IN
      WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
      Agreement to be duly executed by their respective authorized signatories as
      of
      the date first indicated above.

     

     

    
      	 	
              


              NAME
                OF INVESTOR

               

              _________________________________________
                

               

               

              By:
                _______________________________________

              Name:

              Title:

               

              Investment
                Amount: $_________________________

Tax
                ID No.:__________________________________


               

              


              ADDRESS
                FOR NOTICE

               

              c/o:_______________________________________

               

              Street:_____________________________________

               

              City/State/Zip:_______________________________

               

              Attention:___________________________________

               

              Tel:________________________________________

               

              Fax:________________________________________

               

               

              DELIVERY
                INSTRUCTIONS

              (if
                different from above)

               

              
                c/o:_______________________________________

                 

                Street:_____________________________________

                 

                City/State/Zip:_______________________________

                 

                Attention:___________________________________

                 

                Tel:________________________________________

              

            


    

     

    
      
        
        

      

      
        27