AXPWQ Axion Power International Inc (CE)

 

As filed with the Securities and Exchange Commission October 24, 2014

Registration Statement No. 333-

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

  

REGISTRATION STATEMENT

ON FORM S-1

UNDER

THE SECURITIES ACT OF 1933

 

AXION POWER INTERNATIONAL, INC.

(Exact name of registrant as specified in its charter)

 

Delaware	3690	65-0774638
(State or other jurisdiction of	(Primary Standard Industrial	(I.R.S. Identification Number)
incorporation or organization)	Classification Code Number)

 

3601 Clover Lane

New Castle, Pennsylvania 16105

Telephone (724) 654-9300

(Address, including zip code, and telephone number, including

area code, of registrant’s principal executive offices)

 

David DiGiacinto

Chief Executive Officer

3601 Clover Lane

New Castle, Pennsylvania 16105

Telephone (724) 654-9300

(Name, address, including zip code, and telephone number,

including area code, of agent for service)

 

with copies to:

 

Jolie Kahn, Esq.	Steven M. Skolnick, Esq.
1020 Riverview	Lowenstein Sandler LLP
Conshohocken, PA 19428	1251 Avenue of the Americas
	New York, New York 10020
Telephone (215) 253-6645	Telephone (212) 262-6700

  

Approximate Date of Commencement of Proposed Sale to the Public: As soon as practicable after the effective date hereof.

 

If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. ¨

 

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. x (File No. 333-197978)

 

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o

  

  

If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer,” and “small reporting company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer o	Accelerated filer o
Non-accelerated filer o	Smaller reporting company x
(Do not check if a smaller reporting company)

 

CALCULATION OF REGISTRATION FEE

  

Title of each class of securities to be registered		Proposed maximum aggregate offering price(1)				Amount of registration fee
Common stock, no par value (2)(3)		$	115,000			$	13.36	(7)
Warrants to purchase common stock(2)			—	(4)			—	(5)
Shares of common stock underlying warrants (2)(3)		$	—			$	—
Representative's warrants			—				—	(6)
Shares of common stock underlying Representative's warrants (3)		$	—			$	—
Total		$	115,000			$	13.36

 

(1)

Estimated solely for the purpose of calculating the registration fee under Rule 457(o) of the Securities Act.

 

(2)

Includes shares of common stock and warrants to purchase shares of common stock which may be issued upon exercise of a 45-day option granted to the underwriter to cover over-allotments, if any.

 

(3)

Pursuant to Rule 416 under the Securities Act, the securities being registered hereunder include such indeterminate number of additional shares of common stock as may be issued after the date hereof as a result of stock splits, stock dividends or similar transactions.

 

(4)

The warrants to be issued to investors hereunder are included in the price of the common stock above.

 

(5)

No separate registration fee is required pursuant to Rule 457(g) promulgated under the Securities Act.

 

(6)

Assumes the underwriter’s over-allotment is fully exercised.

   

(7)

Paid with filing of the original Registration Statement on Form S-1, filed on August 8, 2014.

 

THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(a), MAY DETERMINE.

 

  

EXPLANATORY NOTE

 

This registration statement is being filed pursuant to Rule 462(b) as promulgated under the Securities Act of 1933, as amended. Axion Power International, Inc. (the “Registrant”) hereby incorporates by reference into this registration statement the contents of the Registration Statement on Form S-1, as amended (Registration No. 333-197978), including the exhibits thereto (the “Original Registration Statement”), which was declared effective by the Securities and Exchange Commission on October 23, 2014. This registration statement is being filed solely to increase the amount of securities offered pursuant to the Original Registration Statement. The required opinion of counsel and related consent and accountant’s consent are attached hereto and filed herewith.

 

 

PART II

 

INFORMATION NOT REQUIRED IN PROSPECTUS

 

Item 16. Exhibits and Financial Statement Schedules.

 

All exhibits filed or incorporated by reference in the registrant’s Registration Statement on Form S-1, as amended (File No. 333-197978), are incorporated by reference into, and shall be deemed to be part of, this Registration Statement, except for the following, which are filed herewith:

 

5.1	Opinion of Jolie Kahn, Esq. re: legality.
23.1	Consent of Jolie Kahn, Esq. (included in Exhibit 5.1).
23.2	Consent of EFP Rotenberg, LLP

  

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1933, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in New Castle, Pennsylvania, on the 24^th day of October, 2014.

 

AXION POWER INTERNATIONAL, INC.

By: /s/ David DiGiacinto
David DiGiacinto, Principal Executive Officer
By: /s/ Charles Trego
Charles Trego, Principal Financial Officer
Date: October 24, 2014

 

Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated:

 

Signature		Title		Date
/s/ David T. DiGiacinto		Director		October 24, 2014
David T. DiGiacinto
/s/ Michael Kishinevsky		Director		October 24, 2014
Michael Kishinevsky
/s/ Charles Trego		Director		October 24, 2014
Charles Trego
/s/ D. Walker Wainwright		Director		October 24, 2014
D. Walker Wainwright

 

 

Exhibit 5.1

 

Jolie Kahn, Esq.

1020 Riverview

Conshohocken, PA 19428

 

October 24, 2014

 

Axion Power International, Inc.

3601 Clover Lane

New Castle PA 16105

 

Ladies and Gentlemen:

 

I have acted as special counsel to Axion Power International, Inc., a Delaware corporation (the “ Company ”), in connection with the Company’s registration statement on Form S-1 (the “ Registration Statement ”), filed with the Securities and Exchange Commission (the “ Commission ”) under the Securities Act of 1933, as amended (the “ Securities Act ”), relating to the issuance and sale of $115,000 shares of common stock (the “Shares”), and Series A warrants and Series B warrants (the “Warrants”) and the shares of common stock underlying the Series A Warrants and Series B Warrants (the “Warrant Shares” and collectively with Shares and the Warrants, the “Securities”), issued by the Company.

 

In connection with this opinion, I have examined originals or copies, certified or otherwise identified to our satisfaction, of (i) the Registration Statement, including the form of prospectus included therein and the documents incorporated by reference therein, (ii) the Company’s certificate of incorporation, as amended to date, (iii) the Company’s by-laws, as amended to date, and (iv) certain resolutions of the Board of Directors of the Company. I have also examined originals or copies, certified or otherwise identified to our satisfaction, of such other documents, certificates and records as I have deemed necessary or appropriate, and I have made such investigations of law as I have deemed appropriate as a basis for the opinions expressed below.

 

In rendering the opinions expressed below, I have assumed and have not verified (i) the genuineness of the signatures on all documents that I have examined, (ii) the legal capacity of all natural persons, (iii) the authenticity of all documents supplied to us as originals and (iv) the conformity to the authentic originals of all documents supplied to us as certified or photostatic or faxed copies.

 

Based upon and subject to the foregoing and subject also to the limitations, qualifications, exceptions and assumptions set forth herein, I am of the opinion that:

 

1. the Securities have been duly authorized and, when sold as described in the prospectus, will be validly issued, fully paid and nonassessable; and

 

2. the Warrant Shares have been duly authorized and, when issued in accordance with the terms and conditions of the Warrants, the Warrant Shares will be validly issued, fully paid and non-assessable.

 

I express no opinion other than as to the federal laws of the United States of America and the Delaware General Corporation Law (including the statutory provisions, all applicable provisions of the Delaware Constitution and reported judicial decisions interpreting the forgoing). I hereby consent to the filing of this opinion as an exhibit to the Registration Statement and the reference to this firm under the caption “Legal Matters” in the prospectus included in the Registration Statement. In giving this consent, I do not admit that I am an “expert” under the Securities Act or under the rules and regulations of the Commission relating thereto with respect to any part of the Registration Statement.

 

	Very truly yours,
	/s/ Jolie G. Kahn, Esq.

 

 

Exhibit 23.2

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

Axion Power International, Inc.

3601 Clover Lane

New Castle, PA 16195

 

We hereby consent to the incorporation by reference in this Registration Statement on Form S-1 filed pursuant to Rule 462(b) of the Securities Act of 1933, as amended, of our report dated March 31, 2014, except for the effects of the reverse stock split described in Note 12, as to which the date is September 8, 2014, relating to the consolidated balance sheets of Axion Power International, Inc., as of December 31, 2013 and 2012 and the related consolidated statements of operations and comprehensive loss, stockholders’ equity, and cash flows for the years then ended and to the reference to us under the caption Experts. Our report contains an explanatory paragraph regarding the Company's ability to continue as a going concern.

 

/s/ EFP Rotenberg, LLP

 

EFP Rotenberg, LLP

Rochester, New York

October 24, 2014