First Registration Statement. If (A) the First Registration Statement is (B) not filed with the Commission on or before the either the First Filing Deadline (a “First Filing Failure”), or (C) is not declared effective by the Commission on or before the First RS Effectiveness Deadline (an “First Effectiveness Failure”) or (D) on any day after the Effective Date sales of all of the First RS Shares required to be included on such First Registration Statement cannot be made (other than during an Allowable Suspension Period (as defined in Section 5.11)) pursuant to such First Registration Statement or otherwise (including as a result of a failure to keep such First Registration Statement effective, to disclose such information as is necessary for sales to be made pursuant to such First Registration Statement or to register a sufficient number of shares of Common Stock or to maintain the listing of the shares of Common Stock) (a “First Maintenance Failure”) then, as relief for the damages to any Investor by reason of any such delay in or reduction of its ability to sell such First RS Shares, the Company shall pay to each Investor relating to such First Registration Statement an amount in cash equal to $0.005 per First RS Share then held by the Investor, or issuable to such Investor upon (x) conversion of the Preferred Shares held by the Investor or (y) exercise of Initial Warrants held by the Investor, which First RS Share is covered by such First Registration Statement on each of the following dates: (i) the day of a First Filing Failure and on every thirtieth day (pro rated for periods totaling less than thirty (30) days) thereafter until the date such First Filing Failure is cured; (ii) the day of an First Effectiveness Failure and on every thirtieth day (pro rated for periods totaling less than thirty (30) days) thereafter until the date such First Effectiveness Failure is cured; and (iii) the initial day of a First Maintenance Failure and on every thirtieth day (pro rated for periods totaling less than thirty (30) days) thereafter until the date such First Maintenance Failure is cured. The payments to which an Investor shall be entitled to pursuant to this Section 7.9(a)(i) are referred to herein “First RS Registration Delay Payments.” First RS Registration Delay Payments shall be paid on the earlier of (x) the last day of the calendar month during which such First RS Registration Delay Payments are incurred and (y) the third business day after the event or failure giving rise to the First RS Registration Delay Payments is cured. In the event the Company fails to make First RS Registration Delay Payments in a timely manner, such First RS Registration Delay Payments shall bear interest at the rate of 1.5% per month (prorated for partial months) until paid in full. The parties agree that the maximum aggregate First RS Registration Delay Payments payable to an Investor under this Agreement shall be $0.06 per First RS Share held by such Investor or issuable to such Investor upon conversion of Preferred Stock or exercise of Initial Warrants held by such Investor. In addition, and notwithstanding anything to the contrary contained herein, if the Company has received a comment by the Commission requiring an Investor to be named as an underwriter in the First Registration Statement that, notwithstanding the reasonable best efforts of the Company, is not withdrawn by the Commission and such Investor elects in writing not to be named as a selling stockholder in the First Registration Statement, the Investor shall not be entitled to any First RS Registration Delay Payments with respect to such First Registration Statement.
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Sources: Unit Purchase Agreement (Flotek Industries Inc/Cn/)
First Registration Statement. If On or prior to 15 days following the Second Closing Date (Aas defined in the Purchase Agreement), or such earlier date that is 15 days following the date the Purchasers and the Company mutually agree in good faith there will be no further Closings (as defined in the Purchase Agreement) pursuant to the Purchase Agreement (the “First Filing Deadline”), the Company shall prepare and file with the SEC a Registration Statement on Form S-3 (or, if Form S-3 is not then available to the Company, on such form of registration statement as is then available to effect a registration for resale of the Registrable Second Closing Securities) for an offering to be made on a continuous basis pursuant to Rule 415 under the Securities Act (the “First Shelf Registration Statement”). Such First Shelf Registration Statement shall, subject to the limitations of Form S-3, include the aggregate amount of Registrable Second Closing Securities to be registered therein and shall contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such First Shelf Registration Statement) the “Plan of Distribution” in substantially the form attached hereto as Annex A. To the extent the staff of the SEC does not permit all of the Registrable Second Closing Securities to be registered on the First Shelf Registration Statement is filed pursuant to this Section 2.1(a) or for any other reason any Registrable Second Closing Securities are not then included in a Registration Statement filed under this Agreement, the Company shall (Bi) not filed with inform each of the Holders thereof and use its commercially reasonable efforts to file amendments to the First Shelf Registration Statement as required by the Commission on or before the either and/or (ii) withdraw the First Filing Deadline Shelf Registration Statement and file a new registration statement (a “First Filing FailureNew Registration Statement”), or (C) is not declared effective in either case covering the maximum number of Registrable Second Closing Securities permitted to be registered by the Commission SEC, on Form S-3 or before such other form available to register for resale the Registrable Second Closing Securities as a secondary offering; provided, however, that prior to filing such amendment or First RS Effectiveness Deadline (an “First Effectiveness Failure”) or (D) on any day after New Registration Statement, the Effective Date sales Company shall be obligated to use its commercially reasonable efforts to advocate with the SEC for the registration of all of the First RS Shares required to be included on such First Registration Statement cannot be made (other than during an Allowable Suspension Period (as defined Registrable Second Closing Securities in Section 5.11)) pursuant to such First Registration Statement or otherwise (accordance with the SEC Guidance, including as a result of a failure to keep such First Registration Statement effective, to disclose such information as is necessary for sales to be made pursuant to such First Registration Statement or to register a sufficient number of shares of Common Stock or to maintain the listing of the shares of Common Stock) (a “First Maintenance Failure”) then, as relief for the damages to any Investor by reason of any such delay in or reduction of its ability to sell such First RS Shareswithout limitation, the Company shall pay to each Investor relating to such First Registration Statement an amount in cash equal to $0.005 per First RS Share then held by the Investor, or issuable to such Investor upon (x) conversion Manual of the Preferred Shares held by the Investor or (y) exercise of Initial Warrants held by the Investor, which First RS Share is covered by such First Registration Statement on each of the following dates: (i) the day of a First Filing Failure and on every thirtieth day (pro rated for periods totaling less than thirty (30) days) thereafter until the date such First Filing Failure is cured; (ii) the day of an First Effectiveness Failure and on every thirtieth day (pro rated for periods totaling less than thirty (30) days) thereafter until the date such First Effectiveness Failure is cured; and (iii) the initial day of a First Maintenance Failure and on every thirtieth day (pro rated for periods totaling less than thirty (30) days) thereafter until the date such First Maintenance Failure is cured. The payments to which an Investor shall be entitled to pursuant to this Section 7.9(a)(i) are referred to herein “First RS Registration Delay Payments.” First RS Registration Delay Payments shall be paid on the earlier of (x) the last day of the calendar month during which such First RS Registration Delay Payments are incurred and (y) the third business day after the event or failure giving rise to the First RS Registration Delay Payments is cured. In the event the Company fails to make First RS Registration Delay Payments in a timely manner, such First RS Registration Delay Payments shall bear interest at the rate of 1.5% per month (prorated for partial months) until paid in full. The parties agree that the maximum aggregate First RS Registration Delay Payments payable to an Investor under this Agreement shall be $0.06 per First RS Share held by such Investor or issuable to such Investor upon conversion of Preferred Stock or exercise of Initial Warrants held by such Investor. In addition, and notwithstanding anything to the contrary contained herein, if the Company has received a comment by the Commission requiring an Investor to be named as an underwriter in the First Registration Statement that, notwithstanding the reasonable best efforts of the Company, is not withdrawn by the Commission and such Investor elects in writing not to be named as a selling stockholder in the First Registration Statement, the Investor shall not be entitled to any First RS Registration Delay Payments with respect to such First Registration Statement.Publicly Available Telephone Interpretations D.
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