ITEM
1.01 Entry into Material Definitive Agreement
On
September 22, 2009, we entered into an Amendment to Warrants and Securities
Purchase Agreement (the “Amendment”) with Quercus Trust, a copy of which is
attached as Exhibit 99.1 hereto, amending the Warrant and Securities
Purchase Agreement between us and Quercus Trust dated January 14, 2008 (the
“Agreement”).
The
material terms of the Amendment are as follows:
1. The
exercise for warrants previously issued by Quercus by us is reset from $2.60 per
share to $0.75 per share.
2. Any
previously accrued liquidated damages under the Securities Purchase Agreement to
the date of the Amendment are waived.
3. Axion
and Quercus have agreed to elect three new directors on behalf of Quercus,
each to serve a three year term. See Item
5.02. below.
4. Quercus
has agreed to invest an additional $2,000,000 in connection with a minimum $10
million capital raise by us upon certain terms and conditions as set forth in
the Amendment.
5. Certain
deadlines in the Agreement for filing of post effective amendments are extended
from 7 business days and 30 calendar days are extended to 15 business days and
60 calendar days, respectively.
The
Amendment provides us with a further financing commitment by Quercus as well as
provision of the benefit of the experience and expertise of the three named
individuals as new directors to us. The Amendment resolves
certain milestones set forth in the Agreement which were not fully met due to
the noncompletion of the Production Contract which was entered into by us and
delivered to Quercus on June 27, 2008.
ITEM
5.02 Election of Directors
On
September 23, 2009, our Board of Directors conducted a meeting during which it
passed a resolution by the unanimous vote of all directors present, which
constituted a quorum of the Board, to increase the number of directors from 8 to
11. The three directors shall each be elected to a three year
term. Upon the resignation or other departure of the first director
hereinafter, the vacancy will not be filled and the number of directors shall be
decreased to 10.
At the
same meeting, the following directors were elected by the unanimous vote of all
directors present, which constituted a quorum of the Board, to fill the
vacancies created by the increase in the number of directors: David
Gelbaum, David Anthony and Joseph Bartlett. The background of each
new director is set forth below:
David Gelbaum
:
Since 2002, Mr.
Gelbaum has been a private investor. From 1989 until 2002, he performed
quantitative modeling for stock price returns and derivative securities for TGS
Management, and from 1972 until 1989 he worked at Oakley & Sutton in a
similar capacity. Mr. Gelbaum is a trustee of The Quercus Trust.
David Anthony
:
Mr. Anthony is an
experienced entrepreneur, venture capitalist, and educator. He is Managing
Director of 21 Ventures, a position he has held since 2003, and sits on the
board of Agent Video Intelligence, 3GSolar, BioPetroClean, Juice Wireless, Open
Energy and VOIP Logic. Prior to 21 Ventures, David launched Notorious
Entertainment, a developer of multimedia brands. David received his MBA from The
Tuck School of Business at Dartmouth College and a BA in Economics from George
Washington University.
Joseph Bartlett
:
Mr.
Bartlett is counsel to the Quercus Trust and has practiced corporate
and securities law since 1985. From September 2004 until
August 2008 he was a partner at Greenberg Glusker LLP in Los Angeles,
California, and from September 2000 until September 2004 he was a
partner at Spolin Silverman Cohen and Bartlett LLP. He graduated,
magna cum laude, from the University of California, Hastings College of Law
in 1985, and received an AB in English literature from the University of
California at Berkeley in 1980.
ITEM
9.01 Exhibit
|
99.1
|
Amendment
to Securities Purchase Agreement, dated September 22,
2009
|
