UNITED
STATES


SECURITIES
AND EXCHANGE COMMISSION


Washington
D.C. 20549




FORM
10-K




xANNUAL REPORT UNDER SECTION 13 OR
15(d) OF THE SECURITIES EXCHANGE ACT OF
1934




For
the fiscal year ended December 31, 2009




o TRANSITION REPORT UNDER
SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934




For the transition period from ___
until ___





Commission
File Number 000-22573





AXION
POWER INTERNATIONAL, INC.


(Exact
name of registrant as specified in its charter)





Delaware
              
              65-0774638(State
      or other jurisdiction of
              
              (I.R.S.
      Employerincorporation
      organization)
              
              Identification
      No.)3601
      Clover LaneNew
      Castle, Pennsylvania
              
              16105(Address
      of principal executive offices)
              
              (Zip
      Code)Registrant’s telephone number, including area code
              (724)
      654-9300





Securities
Registered under Section 12(b) of the Act


None


Securities
Registered under Section 12(g) of the Act


Common
Stock, par value $.0001 per share




Indicate
by check mark if the registrant is a well-known seasoned issuer, as defined in
Rule 405 of the Securities Act.       Yes
 ̈  No x




Indicate
by check mark if the registrant is not required to file reports pursuant to
Section 13 or Section 15(d) of the Act.    Yes  ̈  No x




Indicate
by check mark whether the issuer (1) has filed all reports required to be filed
by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the
preceding 12 months (or for such shorter period that the registrant was required
to file such reports), and (2) has been subject to such filing requirements for
the past 90 days. Yes x No
 ̈





Indicate
by check mark whether the registrant has submitted electronically and posted on
its corporate Web site, if any, every Interactive Data File required to be
submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this
chapter) during the preceding 12 months (or for such shorter period that
the registrant was required to submit and post such
files). Yes   o   No 
o





Indicate
by check mark if disclosure of delinquent filers pursuant to Item 405 of
Regulation S-K is not contained herein, and will not be contained, to the best
of registrant’s knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. 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 “smaller
reporting company” in Rule 12b-2 of the Exchange Act.




Large
      accelerated filer  ̈
              Accelerated
      filer  ̈Non-accelerated
      filer  ̈
              Smaller
      reporting company x




Indicate
by check mark whether the registrant is a shell company (as defined in Rule
12b-2 of the Exchange Act).    Yes  ̈ No x




The
aggregate market value of the 10,263,109 shares of voting stock held by
non-affiliates of the registrant based on the closing price on the Over the
Counter Bulletin Board on June 30, 2009 was $14,368,353.




Indicate
the number of shares outstanding of each of the registrant’s classes of common
stock, as of the latest practicable date.





Shares
      OutstandingTitle of Class
                March 17, 2010Common
      Stock
                84,653,302




DOCUMENTS
INCORPORATED BY REFERENCE


None














TABLE
OF CONTENTS




PART
      IItem
      1.
                Description
      of Business.
                
                4Item
      1A.
                Risk
      Factors.
                
                11Item
      2.
                Properties.
                
                18Item
      3.
                Legal
      Proceedings.
                
                18Item
      4.
                Submission
      of Matters to a Vote of Security Holders.
                
                20PART
      IIItem
      5.
                Market
      for Registrant’s Common Equity, Related Stockholder Matters and Issuer
      Purchases Equity of Securities.
                
                21Item
      7.
                Management’s
      Discussion and Analysis of Financial Conditions and Results of
      Operations.
                
                25Item
      8.
                Financial
      Statements and Supplementary Data.
                
                36Item
      9.
                Changes
      in and Disagreements With Accountants on Accounting and Financial
      Disclosure.
                
                77Item
      9A(T).
                Controls
      and Procedures.
                
                78PART
      IIIItem
      10.
                Directors,
      Executive Officers and Corporate Governance.
                
                80Item
      11.
                Executive
      Compensation.
                
                85Item
      12.
                Security
      Ownership of Certain Beneficial Owners and Management and Related
      Stockholder Matters.
                
                91Item
      13.
                Certain
      Relationships and Related Transactions, and Director
      Independence.
                
                93Item
      14.
                Principal
      Accountant Fees and Services.
                
                94PART
      IVItem
      15.
                Exhibits.
                
                95






2


Cautionary
Note Regarding Forward-Looking Information




This
Annual Report on Form 10-K, in particular the “Management’s Discussion and
Analysis of Financial Condition and Results of Operations” appearing herein,
contains certain “forward-looking statements” within the meaning of Section 27A
of the Securities Act of 1933, as amended, and Section 21E of the Securities
Exchange Act of 1934, as amended. These forward-looking statements represent our
expectations, beliefs, intentions or strategies concerning future events,
including, but not limited to, any statements regarding our assumptions about
financial performance; the continuation of historical trends; the sufficiency of
our cash balances for future liquidity and capital resource needs; the expected
impact of changes in accounting policies on our results of operations, financial
condition or cash flows; anticipated problems and our plans for future
operations; and the economy in general or the future of the electrical storage
device industry, all of which are subject to various risks and
uncertainties.




When used
in this Annual Report on Form 10-K as well as in reports, statements, and
information we have filed with the Securities and Exchange Commission, in our
press releases, presentations to securities analysts or investors, in oral
statements made by or with the approval of an executive officer, the words or
phrases “believes,” “may,” “will,” “expects,” “should,” “continue,”
“anticipates,” “intends,” “will likely result,” “estimates,” “projects” or
similar expressions and variations thereof are intended to identify such
forward-looking statements. However, any statements contained in this periodic
report that are not statements of historical fact may be deemed to be
forward-looking statements. We caution that these statements by their nature
involve risks and uncertainties, certain of which are beyond our control, and
actual results may differ materially depending on a variety of important
factors, including, but not limited to such factors as the following. With
regard to the risks we may face, we advise you to carefully consider the
following risks and uncertainties:




·
              we have incurred net losses since
      inception, and we may not be able to generate sufficient revenue and gross
      margin in the future to achieve or sustain
      profitability;
 
 ·
              we may be unable to enforce or
      defend our ownership of proprietary
  technology;
 
 ·
              we have never manufactured carbon
      electrode assemblies in large commercial
  quantities;
 
 ·
              we may be unable to develop a
      cost effective alternative to conventional lead
      electrodes;
 
 ·
              our technology may be rendered
      obsolete as a result of technological changes in the battery industry or
      other storage technologies;
 
 ·
              we may not be able to establish
      reliable supply channels for the raw materials and components that will be
      used in our commercial proprietary lead/carbon (“PbC”)
      batteries;
 
 ·
              other manufacturers may not be
      able to modify established lead-acid battery manufacturing processes to
      replicate our processes to accommodate differences between their products
      and our commercial PbC battery
  technology;
 
 ·
              we will have limited market
      opportunities based on our anticipated manufacturing
      capacity;
 
 ·
              our shareholders may suffer
      significant dilution in the event that our outstanding warrants and
      options are ever exercised;
 
 ·
              we depend on key personnel and
      our business may be severely disrupted if we lose the services of our key
      executives and employees;
 
 ·
              our revenues may suffer if
      general economic conditions worsen, remain in the current adverse state
      and/or may not improve in a timely manner;
  and
 
 ·
              we are subject to stringent
      environmental
regulation.




3


PART I




Item 1   Description of Business




Our
Corporate History




Axion
Power Corporation was formed in September of 2003 to acquire and develop certain
innovative battery technology. Since inception Axion Power Corporation has been
engaged in research and development (“R&D”) of the new technology for the
production of our PbC batteries. As of December 31, 2003, Axion Power
Corporation engaged in a reverse acquisition with Tamboril Cigar Company
(“Tamboril”), a public shell company whereby Axion Power Corporation became a
wholly-owned subsidiary of Tamboril. Tamboril was originally incorporated in
Delaware in January 1997, operated a wholesale cigar business until December
1998 and was an inactive public shell thereafter until December 2003. Tamboril
changed its name to Axion Power International, Inc. immediately following the
reverse acquisition.




Since
inception, our operations have been financed by investors with little to no
revenue generated from operations. As a result, trading in our common stock has
been sporadic, volumes have been low, and the market price has been volatile. We
believe that a successful transition from R&D to manufacturing will improve
our cash balances and market profile and may result in a more active trading
market for our stock. However, we can provide no guarantees that our transition
efforts will be successful.





Since
early in 2008, we have devoted time and financial resources to upgrading, and
where necessary replacing, existing battery manufacturing equipment as part of
our long range business plan.  In the future, a large portion of this
upgraded equipment will be used to manufacture our proprietary PbC lead carbon
product.





On
December 18, 2009, we entered into a Securities Purchase Agreement pursuant to
which we agreed to issue common stock at a price of $0.57 per share for total
gross proceeds of $26,081,816 and net cash proceeds of $24,928,323 after
“breakup” fees and cash offering costs. The transaction was consummated on
December 22, 2009.





During
2009, we continued to make improvements to our production processes including
capital acquisitions and quality control systems. We also received, installed
and continued to engineer our first automated electrode manufacturing line.
Manufacturing activity for 2009 consisted of continued production of PbC
prototype and test batteries, as well as manufacturing traditional batteries
pursuant to sales orders. Manufacturing of traditional batteries enables us to
train factory personnel, test systems and make production and quality
improvements with the focus on future PbC battery production.  Some of
the proceeds from the private placement funding we closed in December 2009 are
intended to be used to fully complete our first electrode production line and
add the proper automated quality control components. This basic line will then
be duplicated and improved as additional electrode production lines are added to
allow us to get to meaningful commercialization levels. We will also use a
portion of the proceeds for working capital.




The
Battery Industry




There are
two principal types of lead-acid batteries: flooded batteries and valve
regulated lead-acid. The choice of battery depends mainly on the specific
application that the battery serves. Typical standby or stationary applications
use valve regulated lead-acid batteries due to their inherent advantages,
including spill proof design, low maintenance, compact form, low self-discharge
and high performance. On the other hand, applications like industrial equipment,
traction and railroad applications are better served by the flooded lead-acid
battery types due to their superior performance in continuous deep discharge
applications and at high operating temperatures, among other features.
Technology within the lead-acid battery industry has remained relatively stable
for the last 30 years, and an industry-wide lack of innovation has generally
restrained growth into new applications and emerging markets.




Alternative
energy applications like wind and solar power require an energy storage solution
that combines low cost and long deep discharge cycle life. Lead-acid batteries
are currently one of the gold standards in large-scale power storage
applications, but the short cycle-life of lead-acid chemistry at deep discharge
levels is a primary inhibitor to growth. Due primarily to the cycle-life
limitations of lead-acid batteries, a number of battery manufacturers are
experimenting with alternative battery technologies that are far more expensive
to implement, but offer substantial cycle-life advantages.


4





The North
American lead-acid battery industry is mature with a few leading vendors that
have a global presence and a larger number of smaller regional and local vendors
that cater to the needs of the North American market. The first tier companies
that have a global presence include EnerSys, Exide Technologies and Johnson
Controls.  The second tier companies that cater mainly to the North
American Markets include, among others, East Penn Manufacturing, C&D
Technologies, GS Batteries, Crown Batteries, Trojan Battery and Eagle Picher
Technologies (which was recently purchased by OM Group). The user segments that
rely on lead-acid batteries include automotive applications, standby
applications ranging from uninterruptible power supplies to telecommunication
applications, limited power storage for wind and solar systems and motive power
for heavy-duty equipment and railroad applications.




Our
Business




We are a
development stage company that has invested six years and approximately $18.4
million through December 31, 2009 in R&D expense to develop a patented
energy storage device that uses carbon electrode assemblies to replace the
lead-based negative electrodes found in conventional lead-acid batteries. Our
PbC energy storage device is a battery-supercapacitor hybrid that combines the
simplicity of lead-acid batteries with the fast recharge rate and longer cycle
life of supercapacitors, resulting in a relatively low-cost device that has
versatility of design that will allow differing iterations to deliver maximum
power; maximum energy; or a range of balances between the two.




Our PbC
technology is protected by six issued U.S. patents, nine pending U.S. patent
applications and other proprietary features and structures. The resulting
devices are technically sophisticated and yet simple in design. The carbon
electrode assemblies are fabricated from readily available raw materials using,
for the most part, standard industrial processes and techniques. The electrodes
are then assembled into PbC batteries that can employ the same cases, covers,
positive electrodes, separators and electrolyte as conventional lead-acid
batteries, and can be assembled with the same equipment and manufacturing
methods used throughout the world for manufacturing conventional lead-acid
batteries. PbC batteries use significantly less lead than standard lead-acid
batteries with a comparable size, and the lead, plastics and acid employed are
routinely and profitably recycled at existing recycling facilities around the
world, which makes the PbC battery extremely environmentally friendly and far
more so than most competing battery technologies.




In
February 2007, our PbC technology received the Frost & Sullivan Technology
Innovation Award for the best development in the field of lead-acid batteries
for 2006.





In
January 2009, our facility was tested and found to be in compliance with
emission standards established by new federal guidelines in accordance with the
Clean Air Act–Title III; however, this does not ensure continued or future
compliance by the Company.




We
believe that for large-scale deep-discharge energy storage systems (10 kWh or
greater), our PbC devices may prove to offer the lowest total cost of ownership
solution available in comparison to alternative battery storage technologies. As
ongoing development work on our technologies progresses, we believe that further
cost reductions and performance gains will be likely.




We
believe our advanced battery technologies are uniquely situated to answer the
current challenges facing the conventional lead-acid battery and that industry
as a whole. While we explore the various potential applications for our PbC
technology, our battery manufacturing plant in New Castle, Pennsylvania provides
us with both an excellent R&D facility and a near perfect pilot production
plant in which to produce our advanced energy storage devices. This plant allows
us to manufacture our PbC carbon electrodes in limited quantity and to assemble
our new energy storage batteries for laboratory testing and for small scale
demonstration projects. In manufacturing this battery assembly using
conventional lead-acid battery production equipment, we provide proof to our
future PbC carbon negative electrode customers that our product is suitable to
immediate use in their factories.




The PbC
battery production is limited at this time by our inability to make the carbon
electrodes in large numbers. As part of our plan to transition from pilot
production of PbC electrodes to commercial manufacturing we entered into a
letter agreement in the fourth quarter of 2008 for a sublease agreement for a
second facility in New Castle, Pennsylvania that provides us with an additional
54,000 square feet of production, R&D and office space. It is anticipated
that this facility will be used primarily to produce our PbC electrode
assemblies. In addition, this transition will require that we:





·
            refine our planned fabrication
      methods for carbon electrode
assemblies;


5




·
              demonstrate the feasibility of
      manufacturing our PbC device and our other technologies, using standard
      techniques and
equipment;


·
            demonstrate and document the
      performance of our products in key applications;
  and





·
            respond appropriately to
      anticipated and unanticipated technical and manufacturing
      challenges.




Our
battery plant has a permitted manufacturing capacity of 3,000 batteries per day,
so we currently have excess battery manufacturing capacity that we are able to
dedicate to production of high margin specialty batteries that are required in
relatively small numbers for direct sales.





We plan
to develop our lead carbon technology for use in a variety of applications
including:




·
            motive power
      applications;





·
            stationary power
      applications;





·
            hybrid electric vehicle
      applications; and





·
            military
      applications.




We
believe demand for cost-effective energy storage systems produced using our PbC
technology will grow rapidly. We also believe that our technologies can be among
the leaders in the high performance battery market, and that our competitive
advantages will include:




·
              Cost effectiveness: Due to an
      extended cycle life and relatively low production
      costs;
 
 ·
              Ease of integration: Our planned
      carbon electrode assemblies will be designed to replace the standard lead
      negative electrodes in conventional lead-acid batteries. In some
      applications that require fixed voltage operations, voltage conversion may
      be needed;
 
 ·
              Superior flexibility: By changing
      the number, geometry and arrangement of the electrode assemblies, we
      expect to be able to configure our devices to favor either maximum energy
      storage or maximum power delivery;
and
 
 ·
              Reduced lead content: Depending
      on the energy, power and cycling requirements of a particular application,
      our fully recyclable device will use substantially less lead than
      conventional lead-acid
batteries.


We
anticipate our ability to establish and maintain a competitive position will be
dependent on several factors, including:


·
              the availability of raw materials
      and key components;
 
 ·
              our ability to design and
      manufacture commercial carbon electrode
  assemblies;
 
 ·
              our ability to establish and
      operate facilities that can fabricate electrode assemblies and
      commercially manufacture our PbC device with consistent quality at a
      predictable cost;
 
 ·
              our ability to establish and
      expand a customer base;
 
 ·
              our ability to execute and
      perform on any future strategic distribution agreements with tier one
      and/or tier two battery
manufacturers;
 
 ·
              our ability to compete against
      established and emerging battery and other storage
      technologies;
 
 ·
              general worldwide economic
      conditions;




6





·
            the market for batteries in
      general; and





·
            our ability to retain key
      personnel.




Our
objective is to become an industry leader in low cost, high performance energy
storage systems. We plan to achieve this objective by pursuing the following
core strategies:




·
            Platform
      technology business model. We plan to implement a platform
      technology business model where we will focus on developing and
      manufacturing carbon electrode assemblies that we can offer for sale to
      established battery manufacturers who want to use our PbC carbon electrode
      products in their batteries.





·
            Leverage
      relationships with thought leaders. We are engaged in discussions
      with industry consortia, research institutions, automotive OEM’s and other
      thought leaders in the fields of utility applications and hybrid electric
      vehicles technology. As we develop our relationships in the field of
      energy research, we believe the opportunities for government funding and
      consortia participation will expand rapidly and improve our access to
      potential suppliers and
customers.





·
            Leverage
      relationships with battery manufacturers. Our business model is based on
      the premise that we can most effectively address the needs of the market
      by selling electrode assemblies to established lead-acid battery
      manufacturers who want to add advanced battery technology to their
      existing product lines. This business model should allow us to leverage
      the business abilities, manufacturing facilities and distribution networks
      of established manufacturers in order to reduce our time to market and
      increase our potential market
  penetration.





·
            Build a
      recognized brand. We
      believe strong brand name recognition is important to increase product
      awareness and to effectively penetrate the mass market. We intend to
      differentiate our brand by emphasizing our combination of high performance
      and low total cost of ownership per storage
  cycle.





·
            Focus on
      specific markets.
      Markets for hybrid electric vehicles and conventional utility applications
      are becoming increasingly attractive. We are actively pursuing the use of
      our lead carbon technology products in these emerging
      markets.





·
            Maintain our
      technical advantage and reduce manufacturing costs. We intend to maintain our
      technical advantage by continuing to invest in R&D to improve the
      performance of our PbC devices and other technologies and to continue to
      lower our manufacturing
costs.




The
battery industry is mature, capital intensive, heavily regulated, highly
competitive and averse to product performance risks associated with radical
departures from established technology and, with the severe decline in worldwide
automobile sales, currently experiencing unprecedented cutbacks. Additionally,
due to the nature of the industry, we do not believe we will be able to make a
credible entry into the battery market until we have proven the advantages of
our PbC device technology in demonstration projects with end users. Therefore,
our business plan contemplates two discrete phases: the development phase
(including prototype and demonstration) and the commercialization
phase.




Development
Phase. We are currently in the development phase of our business, and we
are focusing on producing small quantities of commercial prototypes in our own
manufacturing facilities. These commercial prototypes will serve as the
foundation for a series of paid demonstration projects with established end
users. If the projects are successful and end user testing validates the
advantages of our PbC device technology under real-world operating conditions,
it will be easier to proceed to the full commercialization phase. In general,
our development path in each identified target market will include the
following:





·
            Prototype
      manufacturing. We
      are finalizing design work and manufacturing methods for our commercial
      prototype PbC carbon electrodes. These electrode assemblies will be the
      key component in the onsite manufacturing of our PbC
      batteries.


7





·
            Demonstration
      projects. When we
      have developed and bench tested our commercial prototype PbC devices for a
      particular target market, we will negotiate additional demonstration
      projects for each of the intended applications. In some of the larger
      projects we may partner with a larger battery manufacturer in order to
      provide the required quantity of PbC devices. Our goal is to document
      the superior performance of our products in real-world
      applications.





·
            Commercial
      production. When we
      have developed sufficient data to support a decision to commence full
      scale production of a product or product line, we intend to use our New
      Castle, Pennsylvania facility until we reach our maximum permitted
      capacity, after which we plan to pursue strategic relationships with other
      battery manufacturers that are willing to manufacture co-branded
      commercial PbC products. Those products will contain our proprietary
      negative electrode assembly, which we will continue to manufacture at our
      New Castle facility and build our brand
  recognition.





Our
planned demonstration projects are not expected to generate sufficient gross
profit to offset our expected operating costs. Accordingly, we do not expect to
attain profitability during the development phase. If we enter into a
commercialization relationship for a specific product or product line, we
believe our margins may improve based on efficiencies of scale. However, there
is no assurance that the commercialization of products for one or more market
segments will generate sufficient revenue to offset our anticipated R&D and
other operating expenses and yield a profit.




Commercialization
Phase. During the commercialization phase, we intend to implement a
platform technology business model where we will develop and manufacture the PbC
carbon electrode assemblies that are unique to our PbC batteries. In addition to
using these assemblies in our batteries, we eventually intend to sell our
proprietary assemblies to other established battery manufacturers who are
seeking to market more advanced batteries. We believe a platform technology
business model will reduce our time to market, allow us to rely on the
established business abilities of existing manufacturers and forge a strong
brand identity for our PbC products, while allowing us to focus on a narrow band
of value-added activities that should minimize our investment and maximize our
profitability.




Until we
complete our planned demonstration projects, our negotiation position with
respect to manufacturing relationships with established battery manufacturers
may be impaired. Even if our planned demonstration projects are successful, we
may be unable to negotiate manufacturing relationships on terms acceptable to
us. If we decide to manufacture and distribute a line of commercial battery
products ourselves, rather than sell carbon electrode assemblies to established
battery manufacturers, our time to market and our anticipated capital costs may
increase dramatically.




We plan
to initially focus on high-value market segments where the total cost of
ownership is the primary determining factor in product selection. We believe our
commercial PbC device will be most appealing where longer life, high
performance, and low maintenance are fully valued.




Our
Patents and Intellectual Property




We own
six issued U.S. patents and have nine patent applications pending at the date of
this report covering various aspects of our PbC technologies. There is no
assurance that any of the pending patent applications will ultimately be
granted. Our issued patents are:




·
            U.S. Patent No. 6,466,429
      (expires May 2021) - Electric double layer
    capacitor;





·
            U.S. Patent No. 6,628,504
      (expires May 2021) - Electric double layer
    capacitor;





·
            U.S. Patent No. 6,706,079
      (expires May 2022) - Method of formation and charge of the negative
      polarizable carbon electrode in an electric double layer
      capacitor;





·
            U.S. Patent No. 7,006,346
      (expires April 2024) - Positive Electrode of an electric double layer
      capacitor;





·
            U.S. Patent No. 7,110,242
      (expires February 2021) - Electrode for electric double layer capacitor
      and method of fabrication thereof;
and


8





·
            U.S. Patent No. 7,119,047
      (expires February 2021) - Modified activated carbon for carbon for
      capacitor electrodes and method of fabrication
    thereof.




We have
no duty to pay any royalties or license fees with respect to the
commercialization of our PbC device technology, and we are not subject to any
field of use restrictions. We believe our patents and patent applications, along
with our trade secrets, know-how and other intellectual property, will be
critical to our success.




Our
ability to compete effectively with other companies will depend on our ability
to maintain and protect the PbC device intellectual property and technology. We
plan to file additional patent applications in the future. However, the degree
of protection offered by our existing patents or the likelihood that our future
applications will be granted is uncertain. Competitors in both the United States
and foreign countries, many of which have substantially greater resources and
have made substantial investment in competing technologies, may have, or may
apply for and obtain patents that will prevent, limit or interfere with our
ability to make and sell products based on our PbC device technology.
Competitors may also intentionally infringe on our patents. The prosecution and
defense of patent litigation is both costly and time-consuming, even if the
outcome is favorable to us. An adverse outcome in the defense of a patent
infringement suit could subject us to significant liabilities to third parties.
Although third parties have not asserted any infringement claims against us,
there is no assurance that third parties will not assert such claims in the
future.




We also
rely on trade secrets, know-how and other unpatented technology, and there is no
assurance that others will not independently develop the same or similar
technology or obtain unauthorized access to our trade secrets, know-how and
other unpatented technology. To protect our rights in these areas, we require
all employees, consultants, advisors and collaborators to enter into strict
confidentiality agreements. These agreements may not provide meaningful
protection for our unpatented technology in the event of an unauthorized use,
misappropriation or disclosure. While we have attempted to protect the
unpatented proprietary technology that we develop or acquire, and will continue
to attempt to protect future proprietary technology through patents, copyrights
and trade secrets, we believe that our success will depend, to a large extent,
upon continued innovation and technological expertise.




We may
license technology from third parties. Our proposed products are still in the
development stage, and we may need to license additional technologies to
optimize the performance of our products. We may not be able to license these
technologies on commercially reasonable terms or at all. In addition, we may
fail to successfully integrate any licensed technology into our proposed
products. Our inability to obtain any necessary licenses could delay our product
development and testing until alternative technologies can be identified,
licensed and integrated.




In
general, the level of protection afforded by a patent is directly proportional
to the ability of the patent owner to protect and enforce his rights through
legal action. Since our financial resources are limited, and patent litigation
can be both expensive and time consuming, there can be no assurance that we will
be able to successfully prosecute an infringement claim in the event that a
competitor develops a technology or introduces a product that infringes on one
or more of our patents or patent applications. There can be no assurance that
our competitors will not independently develop other technologies that render
our proposed products obsolete. In general, we believe the best protection of
our proprietary technology will come from market position, technical innovation,
speed-to-market and product performance. There is no assurance that we will
realize any benefit from our intellectual property rights.




Our
Competition




We plan
to compete with a number of established competitors in the battery and
supercapacitor industry, including:





·Maxwell
            ·Enersys·Energy
      Conversion Devices
            ·
      Exide·Panasonic
            · Japan Storage
      Battery·Nippon-Chemicon
            ·Ness


9





In
addition, many universities, research institutions and other companies are
developing advanced energy storage technologies including:




·
            symmetric
      supercapacitors;





·
            asymmetric supercapacitors with
      organic electrolytes;





·
            nickel metal hydride
      batteries;





·
            lithium ion
      batteries;





·
            other advanced lead-acid devices;
      and





·
            flow
      batteries.




Other
business entities are developing advanced energy production technologies like
fuel cells, solar cells and windmills which may use our products, or, in some
cases, compete with our products. Since some of our competitors are developing
technologies that may ultimately have costs similar to, or lower than, our
projected costs, there can be no assurance we will be able to compete
effectively.




Most of
our potential competitors have longer operating histories, greater name
recognition, access to larger customer bases and significantly greater
financial, sales and marketing, manufacturing, distribution, technical and other
resources than us. As a result, they may be able to respond more quickly to
changing customer demands or to devote greater resources to the development,
promotion and sales of their products than we can.




Our
competitors with more diversified product offerings may be better positioned to
withstand changing market conditions. Some of our competitors own, partner with,
have longer term or stronger relationships with suppliers of raw materials and
components, which could result in them being able to obtain raw materials on a
more favorable basis than us. It is possible that new competitors or alliances
among existing competitors could emerge and rapidly acquire significant market
share, which would harm our business.




The
development of technology, equipment and manufacturing techniques and the
operation of a facility for the automated production of rechargeable batteries
require large capital expenditures. In order to minimize our capital investment
in manufacturing facilities and establish strong brand name recognition for our
products, our overall strategy is to negotiate strategic alliances and other
production agreements with established battery manufacturers that want to add
high-performance co-branded products to their existing product lines. There can
be no assurance, however, that our platform technology business model will
succeed in the battery industry.





Raw
Materials




During
the research stage, we used readily available raw materials, off-the-shelf
components manufactured by others and hand-made components fabricated by our
staff. As we begin manufacturing in commercial quantities, we will need to
establish reliable supply channels for commercial quantities of raw materials
and components. We believe established suppliers of raw materials and components
will be able to satisfy our requirements on a timely basis. However, we do not
have any long-term supply contracts and the unavailability of necessary raw
materials or components could delay the production of our products and adversely
impact our results of operations.




Lead is
the primary raw material in lead-acid batteries and currently accounts for
approximately 80% of our raw material and component costs in the specialty
conventional lead-acid batteries we now manufacture. Lead prices have fluctuated
dramatically over the last two years, similar to other industrial grade
commodity metals. Our PbC technology will require substantially less lead than
conventional batteries, providing a distinct competitive cost advantage if lead
prices increase above historical averages.





Environmental
Protection




Lead is a
toxic material that is a primary raw material in our PbC batteries. We also use,
generate and discharge other toxic, volatile and hazardous chemicals and wastes
in our research, development and manufacturing activities. We comply with
federal, state and local laws and regulations regarding pollution control and
environmental protection. Under some statutes and regulations, a government
agency, or other parties, may seek to recover response costs from operators of
property where releases of hazardous substances have occurred or are ongoing,
even if the operator was not responsible for such release or otherwise at fault.
In addition, more stringent laws and regulations may be adopted in the future,
and the costs of complying with those laws and regulations could be substantial.
If we fail to control the use of, or to adequately restrict the discharge of,
hazardous substances, we could be subject to significant monetary damages and
fines, or forced to suspend certain operations. In January 2009, our facility
was tested and found to be in compliance with emission standards as established
by new federal guidelines in accordance with the Clean Air Act – Title
III.


10





Our
Research and Development




We engage
in extensive R&D for the purpose of improving our PbC technology and our
proposed products. Our goal is to increase efficiency and reduce costs in order
to maximize our competitive advantage. Our R&D organization works closely
with our engineering team, our suppliers and potential customers to improve our
product design and lower manufacturing costs. During the years ended December
31, 2009 and 2008, we spent $4.4 million and $4.0 million, respectively, on
R&D, and $18.4 million since inception. While our limited financial
resources and short operating history makes it difficult for us to estimate our
future expenditures, we expect to incur R&D expenditures of consistent
magnitude for the foreseeable future.




Our
Employees




We
presently employ a staff of 54, including a 16 member scientific and engineering
team, and 26 people who are involved principally in manufacturing. We are not
subject to any collective bargaining agreements, and we believe we have a good
relationship with our employees.




Description
of Properties




In April
2008, we signed a new lease that added to our existing space at our
manufacturing plant in New Castle, Pennsylvania. The lease calls for a monthly
payment of $16,142 with an initial term of two years beginning April 2008. The
lease includes two successive five-year renewal options, with future rent to be
negotiated at a commercially reasonable rate. We entered into a new lease for
this space on March 28, 2010, for the period commencing April 3, 2010 with a
monthly rental payment of $16,700, which is fixed through 2013, and an initial
term of three years, with two successive five-year renewal options and with
future rent to be negotiated at a commercially reasonable rate.  The
battery manufacturing facility includes approximately 70,438 square feet of
floor space, including 7,859 square feet of office, locker, lab and lunch area,
46,931 square feet of manufacturing space, 1,488 square feet of dedicated lab
space, 9,200 square feet of storage buildings and 5,000 square feet of basement
area. In addition to the monthly rental, we are obligated to pay all required
maintenance costs, taxes and special assessments, maintain public liability
insurance, and maintain fire and casualty insurance for an amount equal to 100%
of the replacement value of the leased premises. Our battery manufacturing
operations at this facility are conducted through a wholly owned subsidiary
named Axion Power Battery Manufacturing, Inc. Our management believes our
property is in good condition.




In
December 2008, we signed a letter agreement to sublease from a current tenant on
a month-to-month basis a building consisting of 54,000 square feet in New
Castle, Pennsylvania. This space provides 48,000 of combined manufacturing and
warehouse space and 6,000 square feet of combined office and R&D space. This
letter agreement is effective through December 31, 2010. We can enter into a
sales agreement or a long-term lease for this space at any time during the
sublease letter agreement.  The rent is $19,300 on a monthly
basis.  In addition to the monthly rent, we are obligated to pay all
required maintenance costs, taxes and special assessments, maintain public
liability insurance, and maintain fire and casualty insurance for an amount
equal to 100% of the replacement value of the leased premises.  We
intend to conduct our PbC and R&D operations from this
facility.




Item 1A Risk Factors





Investing
in our common stock is very speculative and involves a high degree of risk. You
should carefully consider all of the information in this report before making an
investment decision. The following are among the risks we face related to our
business, assets and operations. They are not the only risks we face. Additional
risks and uncertainties not presently known to us or that we currently believe
to be immaterial may also arise. Any of these risks could materially and
adversely affect our business, results of operations and financial condition,
which in turn could materially and adversely affect the trading price of our
common stock. You should not purchase our shares unless you can afford to lose
your entire investment.


11





We
are a development stage company, and our business and prospects are extremely
difficult to evaluate.




Since our
inception in September 2003, the majority of our resources have been dedicated
to our R&D efforts, and we have only recently begun to transition into the
very early stages of commercial PbC prototype production. We do not have a
stable operating history that you can rely on in connection with your evaluation
of our current business and our future business prospects. Our business and
prospects must be carefully considered in light of the limited history of PbC
technology and the many business risks, uncertainties and difficulties that are
typically encountered by development stage companies that have sporadic revenues
and are committed to focusing on research, development and product testing for
an indeterminate period of time. Some of the principal risks and difficulties we
have encountered and expect to continue to encounter include, but are not
limited to, our ability to:




·
            Maintain effective control over
      the cost of our research, pace of progress, development and product
      testing activities;





·
            Develop cost effective
      manufacturing methods for essential components of our proposed
      products;





·
            Improve the performance of our
      commercial prototype
batteries;





·
            Successfully transition from our
      laboratory research and pilot production efforts to commercial
      manufacturing and sales of our battery
  technologies;





·
            Adapt and successfully execute
      our business plan;





·
            Implement and improve
      operational, financial and management control systems and
      processes;





·
            License complementary
      technologies if necessary and successfully defend our intellectual
      property rights against potential
claims;





·
            Respond effectively to
      competitive developments and changing market
      conditions;





·
            Continue to attract, retain and
      motivate qualified personnel;
and





·
            Manage each of the other risks
      set forth below.




Because
of our limited operating history and our relatively recent transition into the
production of prototype PbC devices that we are relying on to become our core
revenue generating products, we have limited insight into trends and conditions
that may exist or might emerge and affect our business. There is no assurance
that our business strategy will be successful or that we will successfully
address the risks identified in this report.




We
have incurred net losses from inception and do not expect to introduce our first
commercial PbC products for a minimum of three months.




From our
inception we have incurred net losses and expect to continue to incur
substantial and possibly increasing losses for the foreseeable future as we
increase our spending to finance the development of and production methods for
our PbC devices, our administrative activities, and the costs associated with
being a public company. Our operating losses have had, and will continue to
have, an adverse impact on our working capital, total assets and stockholders’
equity. For the year ended December 31, 2009, we had a net loss applicable to
common shareholders of approximately $18.6 million.  In addition, we
had cumulative losses from inception (September 18, 2003) to December 31, 2009
of $60.9 million. Our PbC technology has not reached a point where we can mass
produce batteries based on the technology, and we will not be in a position to
commercialize such products until we complete the design development,
manufacturing process development and pre-market testing activities. We believe
the development and testing process will require a minimum of an additional
three months. There can be no assurance that our development and testing
activities will be successful or that our proposed products will achieve market
acceptance or be sold in sufficient quantities and at prices necessary to make
them commercially viable. If we do not realize sufficient revenue to achieve
profitability, our business could be harmed.


12





Our
revenues may suffer if general economic conditions do not begin to
improve.




Our
revenues and our ability to generate earnings are affected by the general
economic factors that are adversely impacting the global economy, such as lack
of liquidity in the capital markets, reduced demand for consumer and industrial
products, excessive inflation, currency fluctuations, increased commodity prices
and employment levels, resulting in a temporary or longer-term overall decline
in demand for our products. This trend continues with excess supply in the
industries in which we operate.




As
we sell our products, we may become the subject of product liability
claims.




Due to
the hazardous nature of many of the key materials used in the manufacturing of
batteries, the producers of such products may be exposed to a greater number of
product liability claims, including possible environmental claims. We currently
have product liability insurance up to $1,000,000 per occurrence and $5,000,000
in the aggregate to protect us against the risk that in the future a product
liability claim or product recall could materially and adversely affect our
business operations. Inability to obtain sufficient insurance coverage at an
acceptable cost or otherwise to protect against potential product liability
claims could prevent or inhibit the commercialization of our product. We cannot
assure you that as we continue distribution of our products that we will be able
to obtain or maintain adequate coverage on acceptable terms, or that such
insurance will provide adequate coverage against all potential claims. Even if
we maintain adequate insurance, any successful claim could materially and
adversely affect our reputation and prospects, and divert management’s time and
attention. If we are sued for any injury allegedly caused by our future products
our liability could exceed our total assets and our ability to pay such
liability.




Our
products contain hazardous materials including lead.




Lead is a
toxic material that is a primary raw material in our batteries. We also use,
generate and discharge other toxic, volatile and hazardous chemicals and wastes
in our research, development and manufacturing activities. We are required to
comply with federal, state and local laws and regulations regarding pollution
control and environmental protection. Under some statutes and regulations, a
government agency, or other parties, may seek to recover response costs from
operators of property where releases of hazardous substances have occurred or
are ongoing, even if the operator was not responsible for such release or
otherwise at fault. In addition, more stringent laws and regulations may be
adopted in the future, and the costs of complying with those laws and
regulations could be substantial. If we fail to control the use of, or
inadequately restrict the discharge of, hazardous substances, we could be
subject to significant monetary damages and fines, or be forced to suspend
certain operations.




We
are subject to stringent environmental regulation.




We use or
generate certain hazardous substances in our research and manufacturing
facilities. We do not carry environmental impairment insurance. We believe that
all permits and licenses required for the operation of our business are in
place. Although we do not know of any material environmental, safety or health
problems in our property or processes, there can be no assurance that problems
will not develop in the future which could have a material adverse effect on our
business, results of operation, or financial condition.




The
growth we seek is substantial and challenging to achieve and
maintain.




The
realization of our business objectives will require substantial future growth.
Even in the event we are able to complete the development of our prototypes,
introduce our products to the market and grow our business, we expect that rapid
growth will significantly challenge our managerial, operational and financial
resources. We must continue to prepare for our growth, if any, through
appropriate systems and controls. We must also establish, train and manage a
much larger work force, which will again require advance planning. If we do not
prepare for and manage the growth of our business effectively, our potential for
success could be materially and adversely affected.




Being
a public company increases our administrative costs significantly.




As a
public company, we incur significant legal, accounting and other expenses that
would not be incurred by a comparable private company. Securities and Exchange
Commission rules and regulations have made some activities more time consuming
and expensive and require us to implement corporate governance and internal
control procedures that are not typical for development stage companies. We also
incur a variety of internal and external costs associated with the preparation,
filing and distribution of the periodic public reports and proxy statements
required by the Securities Exchange Act of 1934, as amended. During the twelve
months ended December 31, 2009, we spent $230,433 on these expenses, however, we
do expect that Securities and Exchange Commission rules and regulations,
including the prospective requirements of auditor attestation under Section 404
of the Sarbanes Oxley Act of 2002, will make it more difficult and expensive for
us to attract and retain qualified directors and executive
officers.


13





We
depend on key personnel, and our business may be severely disrupted if we lose
the services of our key executives and employees.




Our
business is dependent upon the knowledge and experience of our key scientists,
engineers and executive officers. Given the competitive nature of our industry,
there is the risk that one or more of our key scientists or engineers will
resign their positions, which could have a disruptive impact on our operations.
If any of our key scientists, engineers or executive officers do not continue in
their present positions, we may not be able to easily replace them and our
business may be severely disrupted. If any of these individuals joins a
competitor or forms a competing company, we could lose important know-how and
experience and incur substantial expense to recruit and train suitable
replacements. Currently, all of our key employees have employment contracts
which have remaining terms of at least four months and non-compete provisions
that extend an additional 24 months beyond contract termination.




We
cannot begin automated production of our PbC technology for a minimum of three
months.




We will
not be able to begin full commercial production of our PbC energy storage
devices until we complete our current testing operations, our planned
application evaluation and our planned product development. We believe our path
to automated production will require a minimum of three months. Even if our
prototype development operations are successful, there can be no assurance that
we will be able to establish and maintain our facilities and relationships for
the manufacturing, distribution and sale of our PbC batteries and other
technologies or that any future products will achieve market acceptance and be
sold in sufficient quantities and at prices necessary to make them commercially
successful. Even if our proposed products are commercially successful, there can
be no assurance that we will realize enough revenue and gross margin from the
sale of products to achieve profitability.




Our
certificate of incorporation and by-laws provide for indemnification and
exculpation of our officers and directors.




Our
certificate of incorporation provides for indemnification of our officers,
directors and employees to the fullest extent permitted by Delaware law. It also
provides exculpation of our directors for monetary damages arising from breach
of their fiduciary duties in cases that do not involve fraud or willful
misconduct. The Securities and Exchange Commission has advised that it believes
that indemnification for liabilities arising under the securities laws is
against public policy as expressed in the securities laws and is therefore
unenforceable.





We
have limited manufacturing experience which may translate into substantial cost
overruns in manufacturing and marketing our products.




As we
transition into the commercial production of our prototype devices, we may
experience substantial cost overruns in manufacturing and marketing our PbC
technologies, and we may not have sufficient capital in the future to
successfully complete such tasks. In addition, we may not be able to manufacture
or market our products because of industry conditions, general economic
conditions, and/or competition from potential manufacturers and distributors.
Either of these inabilities could cause us to abandon our current business plan
and may cause our operations to eventually fail.




Risks
related to our PbC Technology




We
need to improve the performance of our commercial prototypes to achieve large
scale production.




Our
commercial prototypes do not satisfy all of our performance expectations, and we
need to continue to improve various aspects of our PbC technology as we move
forward with larger scale production of our commercial prototypes. There is no
assurance that we will be able to resolve the known technical issues. Future
testing of our prototypes may reveal additional technical issues that are not
currently recognized as obstacles. If we cannot improve the performance of our
prototypes in a timely manner, we may be forced to redesign or delay the large
scale production of commercial prototypes or possibly cause us to abandon our
product development efforts altogether.


14





We
do not have any long-term vendor contracts.




We
currently purchase the raw materials for our carbon electrodes and a variety of
other components from third parties. We then fabricate our carbon electrodes and
build our prototypes in-house. We do not have any long-term contracts with
suppliers of raw materials and components, and our current suppliers may be
unable to satisfy our future requirements on a timely basis. Moreover, the price
of purchased raw materials and components could fluctuate significantly due to
circumstances beyond our control. If our current suppliers are unable to satisfy
our long-term requirements on a timely basis, we may be required to seek
alternative sources for necessary materials and components or redesign our
proposed products to accommodate available substitutes.




We
do not have extensive manufacturing experience.




We do not
have extensive manufacturing experience with respect to manufacturing our
commercial prototypes in quantities required to achieve our operational goals,
and there is no assurance that we will be able to retain a qualified
manufacturing staff or effectively manage the manufacturing of our proposed
products when we are ready to do so.




We
will be a small player in an intensely competitive market and may be unable to
compete.




The
lead-acid battery industry is large, intensely competitive and resistant to
technological change. If our product development efforts are successful, we will
have to compete or enter into further strategic relationships with
well-established companies that are much larger and have greater financial
capital and other resources than we do. We may be unable to convince end users
that products based on our PbC technology are superior to available
alternatives. Moreover, if competitors introduce similar products, they may have
a greater ability to withstand price competition and finance their marketing
programs. There is no assurance that we will be able to compete
effectively.




To
the extent we enter into strategic relationships, we will be dependent upon our
partners.




Some of
our products are not intended for direct sale to end users and our business
strategy is likely to require us to enter into strategic relationships with
manufacturers of other power industry equipment that use batteries and other
energy storage devices as important components of their finished products. The
agreements governing any future strategic relationships are unlikely to provide
us with control over the activities of any strategic relationship we negotiate
and our future partners, if any, could retain the right to terminate the
strategic relationship at their option. Our future partners will have
significant discretion in determining the efforts and level of resources that
they dedicate to our products and may be unwilling or unable to fulfill their
obligations to us. In addition, our future partners may develop and
commercialize, either alone or with others, products that are similar to or
competitive with the products that we intend to produce.





Risks
relating to our intellectual property




We
may rely on licenses for our PbC technology, which may affect our continued
operations with respect thereto.




As we
develop our PbC technology, we may need to license additional technologies to
optimize the performance of our products. We may not be able to license these
technologies on commercially reasonable terms or at all. In addition, we may
fail to successfully integrate any licensed technology into our proposed
products. Our inability to obtain any necessary licenses could delay our product
development and testing until alternative technologies can be identified,
licensed and integrated. The inability to obtain any necessary third-party
licenses could cause us to abandon a particular development path, which could
seriously harm our business, financial position and results of our
operations.




If
we are unable to protect our proprietary technology and preserve our trade
secrets, we will increase our vulnerability to competitors which could
materially adversely impact our ability to remain in business.




Our
ability to successfully commercialize our products will depend, in large
measure, on our ability to protect those products and our technology with
domestic and foreign patents. We will also need to continue to preserve our
trade secrets. The issuance of a patent is not conclusive as to its validity or
as to the enforceable scope of the claims of the patent. The patent positions of
technology companies, including us, are uncertain and involve complex legal and
factual issues.




We cannot
assure you that our patents will prevent other companies from developing similar
products or products which produce benefits substantially the same as our
products, or that other companies will not be issued patents that may prevent
the sale of our products or require us to pay significant licensing fees in
order to market our products. Accordingly, if our patent applications are not
approved or, even if approved, if such patents are circumvented or not upheld in
a court of law, our ability to competitively exploit our patented products and
technologies may be significantly reduced. Additionally, the coverage claimed in
a patent application can be significantly reduced before the patent is
issued.


15





From time
to time, we may need to obtain licenses to patents and other proprietary rights
held by third parties in order to develop, manufacture and market our products.
If we are unable to timely obtain these licenses on commercially reasonable
terms, our ability to commercially exploit such products may be inhibited or
prevented. Additionally, we cannot assure investors that any of our products or
technology will be patentable or that any future patents we obtain will give us
an exclusive position in the subject matter claimed by those patents.
Furthermore, we cannot assure investors that our pending patent applications
will result in issued patents, that patent protection will be secured for any
particular technology, or that our issued patents will be valid or enforceable
or provide us with meaningful protection.




If
we are required to engage in expensive and lengthy litigation to enforce our
intellectual property rights, the costs of such litigation could be material to
our results of operations, financial condition and liquidity and, if we are
unsuccessful, the results of such litigation could materially adversely impact
our entire business.




We may
find it necessary to initiate further litigation to enforce our patent rights,
to protect our trade secrets or know-how or to determine the scope and validity
of the proprietary rights of others. We plan to aggressively defend our
proprietary technology and any issued patents if funding is available to do so.
Litigation concerning patents, trademarks, copyrights and proprietary
technologies can often be time-consuming and expensive and, as with litigation
generally, the outcome is inherently uncertain.




Although
we have entered into invention assignment agreements with our employees and with
certain advisors, if those employees or advisors develop inventions or processes
independently which may relate to products or technology under development by
us, disputes may also arise about the ownership of those inventions or
processes. Time-consuming and costly litigation could be necessary to enforce
and determine the scope of our rights under these agreements.





We also
rely on confidentiality agreements with our strategic partners, customers,
suppliers, employees and consultants to protect our trade secrets and
proprietary know-how. We may be required to commence litigation to enforce such
agreements, and it is certainly possible that we will not have adequate remedies
for breaches of our confidentiality agreements.




Other
companies may claim that our technology infringes on their intellectual property
or proprietary rights and commence legal proceedings against us which could be
time-consuming and expensive and could result in our being prohibited from
developing, marketing, selling or distributing our products.




Because
of the complex and difficult legal and factual questions that relate to patent
positions in our industry, we cannot assure you that our products or technology
will not be found to infringe upon the intellectual property or proprietary
rights of others. Third parties may claim that our products or technology
infringe on their patents, copyrights, trademarks or other proprietary rights
and demand that we cease development or marketing of those products or
technology or pay license fees. We may not be able to avoid costly patent
infringement litigation, which will divert the attention of management away from
the development of new products and the operation of our business. We cannot
assure investors that we would prevail in any such litigation. If we are found
to have infringed on a third party’s intellectual property rights, we may be
liable for money damages, encounter significant delays in bringing products to
market or be precluded from manufacturing particular products or using
particular technology.




Other
parties may challenge certain of our foreign patent applications. If such
parties are successful in opposing our foreign patent applications, we may not
gain the protection afforded by those patent applications in particular
jurisdictions and may face additional proceedings with respect to similar
patents in other jurisdictions, as well as related patents. The loss of patent
protection in one jurisdiction may influence our ability to maintain patent
protection for the same technology in another jurisdiction.




New
technology may lead to our competitors developing superior products which would
reduce demand for our products.




Research
into the electrochemical applications for carbon nanotechnology and other
storage technologies is proceeding at a rapid pace, and many private and public
companies and research institutions are actively engaged in the development of
new battery technologies based on carbon nanotubes, nanostructured carbon
materials and other non-carbon materials. These new technologies may, if
successfully developed, offer significant performance or price advantages when
compared with our technologies. There is no assurance that our existing patents
or our pending and proposed patent applications will offer meaningful protection
if a competitor develops a novel product based on a new
technology.


16





Risks
relating to our common stock




The
number of shares of common stock we are obligated to register could depress our
stock price.




Effective
May 29, 2009, we registered 3,421,036 shares of our common stock for resale by
certain selling stockholders.  Pursuant to a private placement
transaction of our Common Stock, which closed on December 22, 2009, and which is
the subject of a registration statement on Form S-1 which we filed with the SEC
on January 15, 2010, we are obligated to register an additional 45,757,572
shares of our common stock for resale by the selling stockholders. The sale of a
significant number of these shares may cause the market price of our common
stock to decline.




We
have issued a large number of convertible securities, warrants and options that
may increase, perhaps significantly, the number of common shares
outstanding.




As of
March 17, 2010, we had 84,653,302 shares of common stock outstanding, (a) we
have 100,000 unvested common shares that have been granted and not issued, (b)
we have warrants outstanding and that, if exercised, would generate proceeds of
$18,979,625 and cause us to issue up to an additional 13,865,433 shares of
common stock. 1,385,714 of these warrants were classified as derivative
liabilities, and (c) we have options outstanding to purchase common stock that,
if exercised, would generate proceeds of $4,655,799 and result in the issuance
of an additional 1,721,270 shares of common stock.





We have
provided and intend to continue offering compensation packages to our management
and employees that emphasize equity-based compensation.




As a key
component of our growth strategy, we have provided and intend to continue
offering compensation packages to our management and employees that emphasize
equity-based compensation. In particular:




·
            Our incentive stock plan
      authorized incentive awards for up to 2,000,000 shares of our common
      stock; we have issued incentive awards for an aggregate of 782,950 shares;
      and we have the power to issue incentive awards for an additional
      1,217,050 shares without stockholder
  approval;





·
            Our independent directors’ stock
      option plan authorized options for up to 500,000 shares of our common
      stock; we have issued options for an aggregate of 467,685 shares; and have
      the power to issue options for an additional 32,315 shares without
      stockholder approval;





·
            We have issued contractual
      options for an aggregate of 1,943,000 shares of our common stock, of which
      908,000 are currently outstanding, to executive officers under the terms
      of their employment agreements with us;
  and





·
            We have issued contractual
      options for an aggregate of 1,180,700 shares of our common stock, of which
      485,400 are currently outstanding to certain employees, attorneys and
      consultants under the terms of their agreements with
      us.




We are
required to account for the fair market value of equity compensation awards as
operating expenses. As our business matures and expands, we expect to incur
increasing amounts of non-cash compensation expense, which may materially and
adversely affect our future operating results.




We
may issue stock to finance acquisitions.




We may
wish to acquire complementary technologies, additional facilities and other
assets. Whenever possible, we will try to use our stock as an acquisition
currency in order to conserve our available cash for operations, but use of
stock as an acquisition currency will also dilute the ownership of then
currently existing stockholders. Future acquisitions may give rise to
substantial charges for the impairment of goodwill and other intangible assets
that would materially and adversely affect our reported operating results. Any
future acquisitions will involve numerous business and financial risks,
including:


17





·
            difficulties in integrating new
      operations, technologies, products and
  staff;





·
            diversion of management attention
      from other business concerns;
and





·
            cost and availability of
      acquisition financing.




We will
need to be able to successfully integrate any businesses we may acquire in the
future, and the failure to do so could have a material adverse effect on our
business, results of operations and financial condition.




Because
of factors unique to us, the market price of our common stock is likely to be
volatile.




Due to
the large number of shares that we have registered and will register in the
future on behalf of certain selling stockholders, the development stage of our
business and numerous other factors, the trading price of our common stock has
been and is likely to continue to be highly volatile. In addition, actual or
anticipated variations in our quarterly operating results; the introduction of
new products by competitors; changes in competitive conditions or trends in the
battery industry; changes in governmental regulation and changes in securities
analysts’ estimates of our future performance or that of our competitors or our
industry in general, could adversely affect our future stock price. Investors
should not purchase our common stock if they are unable to suffer a complete
loss of their investment.





Our
stock price may not stabilize at current levels.




Our
common stock is quoted on the Over the Counter Bulletin Board. Since trading in
our common stock began in January 2004, trading has been sporadic, trading
volumes have been low and the market price has been volatile. The closing price
reported as of March 17, 2010, the latest practicable date, was $1.15 per share.
Current quotations are not necessarily a reliable indicator of value and there
is no assurance that the market price of our stock will stabilize at or near
current levels.





Item 2  Properties





In April
2008, we signed a new lease that added to our existing space at our
manufacturing plant in New Castle, Pennsylvania. On March 28, 2010, we entered
into a new lease for the space with a monthly rental payment of $16,700 and a
term of three years, with two successive five-year renewal options and with
future rent to be negotiated at a commercially reasonable rate.  The
battery manufacturing facility includes approximately 70,438 square feet of
floor space, including 7,859 square feet of office, locker, lab and lunch area,
46,931 square feet of manufacturing space, 1,488 square feet of dedicated lab
space, 9,200 square feet of storage buildings and 5,000 square feet of basement
area. In addition to the monthly rental, we are obligated to pay all required
maintenance costs, taxes and special assessments, maintain public liability
insurance, and maintain fire and casualty insurance for an amount equal to 100%
of the replacement value of the leased premises. Our battery manufacturing
operations at this facility are conducted through a wholly owned subsidiary
named Axion Power Battery Manufacturing, Inc. Our management believes our
property is in good condition.





In
December 2008, we signed a letter agreement to sublease from a current tenant on
a month-to-month basis a building consisting of 54,000 square feet in New
Castle, Pennsylvania. This space provides 48,000 square feet of combined
manufacturing and warehouse space and 6,000 square feet of combined office and
R&D space. This letter agreement is effective through December 31, 2010. We
can enter into a sales agreement or a long-term lease at any time during the
sublease letter agreement.  The rent is $19,300 on a monthly
basis.  In addition to the monthly rent, we are obligated to pay all
required maintenance costs, taxes and special assessments, maintain public
liability insurance, and maintain fire and casualty insurance for an amount
equal to 100% of the replacement value of the leased premises.  We
intend to continue occupying this space and to conduct our PbC and R&D
operations from this facility.




Item 3  Legal Proceedings





Taylor Litigation
and Bankruptcy Court Litigation




On
February 10, 2004, Lewis “Chip” Taylor, Chip Taylor in Trust, Jared Taylor,
Elgin Investments, Inc. and Mega-C Technologies, Inc. (collectively the “Taylor
Group”) filed a lawsuit in the Ontario Superior Court of Justice Commercial List
(Case No. 04-CL-5317) that named Tamboril, Axion Power Corporation, and others
as defendants (the “Taylor Litigation”). As discussed more fully below, by
virtue of orders entered on February 11, 2008 and June 9, 2008 by the Bankruptcy
Court in the Mega-C bankruptcy case, as confirmed by a judgment entered on
November 10, 2009, this action against us is subject to the permanent
injunction of the confirmed Chapter 11 Plan of Mega-C.  On April 14,
2009, the Ontario Superior Court entered an order dismissing us from the Taylor
Litigation.


18





In April
2004, we filed an involuntary Chapter 11 petition against Mega-C in the U.S.
Bankruptcy Court for the District of Nevada (Case No. 04-50962-gwz). In March
2005, the Bankruptcy Court appointed William M. Noall (“Noall”) to serve as
Chapter 11 Trustee for the Mega-C case. On June 7, 2005, the Chapter 11 Trustee
commenced an adversary proceeding against Sally Fonner (“Fonner”), the trustee
of the Mega-C Trust (Adversary Proceeding No. 05-05042-gwz), demanding, among
other things, the turnover of at least 7,327,500 shares held by the Mega-C Trust
as property of the bankruptcy estate. On July 27, 2005, we commenced an
adversary proceeding against Noall and Fonner (Adversary Proceeding No.
05-05082-gwz).




On
December 12, 2005, we entered into the Settlement Agreement with Mega-C,
represented by Chapter 11 Trustee Noall, and the Mega-C Trust, represented by
its trustee Fonner.




The
Settlement Agreement was approved by the Bankruptcy Court after a hearing in an
order dated February 1, 2006. Certain terms were subject to confirmation and
effectiveness of Mega-C’s Chapter 11 plan of reorganization. On November 8,
2006, the Bankruptcy Court entered an order confirming the Chapter 11 plan. The
confirmed Chapter 11 plan was subsequently substantially consummated on November
21, 2006. The Settlement Agreement was fully incorporated in the confirmed
Chapter 11 plan. The plan is fully effective and substantially consummated.
Accordingly, all pending and potential disputes between the parties have been
resolved.




The
litigation settlement and releases provided by the Chapter 11 plan are now
binding on Mega-C, the Chapter 11 trustee, the Taylor Group and all other
parties described in the plan of reorganization. In an order entered on February
11, 2008, the Bankruptcy Court granted our motion for partial summary judgment,
holding that the alleged “oral” agreement creating rights or interests in the
Technology in favor of the Taylor Group never existed and, even if it had, the
Taylor Group transferred any such rights to the Debtor which were then
transferred to us by the confirmed Chapter 11 plan. The Bankruptcy Court held
that the Taylor Group has no interest in or rights to the Technology. The
Bankruptcy Court held that any attempts to claim an interest in or contest our
title to the Technology are contrary to the permanent injunction of the Chapter
11 plan. The Bankruptcy Court held that the Taylor Litigation against us is
barred by the permanent injunction of the confirmed Chapter 11
plan.




In orders
entered on June 9, 2008, the Bankruptcy Court mandated that the Taylor Group
litigation against us be dismissed. On June 18, 2008, the Taylor Group filed a
notice of appeal from these orders. The Taylor Group signed a pleading
consenting to dismiss us from the Taylor Group litigation in Canada.
 On June 27, 2008, we filed a notice of cross-appeal from the Bankruptcy
Court’s orders denying our request for sanctions and our request to hold the
Taylors in contempt of court for their failure to comply with the permanent
injunction of the confirmed Chapter 11 plan.  The Taylors’ appeal and our
cross-appeal have been dismissed as interlocutory by the Bankruptcy Appellate
Panel for lack of jurisdiction.  On February 10, 2009, the Taylors filed a
second motion to vacate the February 11, 2008 order granting summary judgment in
our favor. At a hearing on the Taylors’ second motion to vacate the
February 11, 2008 summary judgment order on April 23, 2009, the Bankruptcy Court
denied the Taylors’ motion in its entirety.  The order denying the Taylors’
second motion to vacate and judgment were entered on November 10,
2009.




In
connection with a related adversary proceeding in the Bankruptcy Court, the
Liquidation Trustee and the Taylors entered into a settlement agreement
whereby, among other things, the Taylors agreed to withdraw virtually all of
their claims as creditors and shareholders in the Mega C bankruptcy
case, dismiss their appeals from the confirmation order and dismiss their
appeal from the Settlement Agreement.    The Taylors’
appeals from the confirmation order and from the settlement agreement have now
been dismissed.  The Ninth Circuit dismissed the appeal from the Settlement
Agreement by a group identifying themselves as the “Unaffiliated Shareholders”.
The Ninth Circuit awarded double costs on appeal to the Company.  The
Unaffiliated Shareholders’ appeal from the Confirmation Order has also been
dismissed.  As a result, all appeals from the Settlement Agreement and the
Confirmation Order have been resolved in the Company’s favor.




By virtue
of the confirmed Chapter 11 plan, all of the Mega-C’s right, title and interest,
if any, in the technology was transferred to us. By virtue of the February 11,
2008 orders of the Bankruptcy Court, as subsequently confirmed in the judgment
entered on November 10, 2009, the Taylor Group has no interest in or rights to
the technology.  By virtue of the April 14, 2009 order from the
Ontario Superior Court, the Taylor Litigation has been dismissed against
us.  The Taylors filed a notice of appeal from the November judgment,
which is pending in the Bankruptcy Appellate Panel for the Ninth Circuit. 
We filed a cross-appeal from the portion of the judgment denying Axion’s
requests for sanctions and to hold the Taylors in
contempt.


19





Contingent
Shares




We agreed
to sell 1,000,000 shares of common stock to a foreign partnership, Mercatus
& Partners Limited at a price of $2.50 per share as part of a group of
comparable transactions where the purchaser planned to contribute a portfolio of
small public company securities to a pair of offshore funds in exchange for fund
units, and then use the fund units as security for bank financing that would be
used to pay for the underlying securities. Contrary to the terms and conditions
of our agreement, the foreign partnership was in possession of a stock
certificate representing these 1,000,000 shares; however, completion of the
transaction was contingent upon receipt of the proceeds from the foreign
partnership, which were not received. The 1,000,000 shares were recovered on
December 4, 2007 and forwarded to Continental Stock Transfer Agency for
cancellation, which took place that same month.




In
connection with the offering described above, four holders of warrants to
purchase shares of our common stock agreed to exercise their warrants to
purchase, in the aggregate, 301,700 shares of common stock (the “Incompletely
Exercised Warrant Shares”) for the purpose of selling them to the foreign
partnership in a transaction that was substantially similar to the one we
entered into with the same foreign partnership. These shares were to be issued
to the foreign partnership upon receipt of payment, which was in turn contingent
upon the foreign partnership tendering the payment of the purchase price for
these shares. Contrary to the terms and conditions of their agreements, the
foreign partnership transferred the shares to two of its creditors who both hold
the shares as holders-in-due-course.





On or
about March 15, 2010  Axion Power International, Inc., Traci and
William Ahearn, Sally Fonner and Dr. James Smith (“Axion and the Four
Shareholders”) have entered into a settlement agreement with Banca M.B.,
Sp.A. under which Banca M.B. Sp.A. has paid to Axion and the Four
Shareholders the sum of Four Hundred and Ninety Thousand Dollars in full
settlement of all claims.  The case against Banca M.B., Sp.A. by Axion and
the Four Shareholders has been dismissed with prejudice.  The cases against
Mr. Masi and Brown Brothers Harriman & Company are continuing.  Axion
and the Four Shareholders also have a judgment in the amount of $1,500,000
against Mercatus & Partners, Ltd. and Stephano Cevolo which is being
domesticated in Italy with the intention of being executed against the assets of
both Mercatus & Partners, Ltd. and Mr. Cevolo in Italy.





Item 4  Submission of Matters to a Vote of Security
Holders





On
December 10, 2009, the holders of the issued and outstanding shares of our
common stock and Series A Convertible Preferred Stock, par value $0.0001 per
share (“Series A Stock”) representing 21,703,959 votes, which constituted a
majority of all votes entitled to be cast, together with holders of the holders
of the issued and outstanding shares of our Series A Stock representing 430,000
shares, which constituted two-thirds of the issued and outstanding shares of our
Series A Stock, voting alone as a separate class, executed a written
consent in accordance with the provisions set forth in §228 of the Delaware
General Corporation Law that approved certain amendments to our certificate of
incorporation.  These amendments amend the Certificate of Powers,
Designations, Preferences and Rights of the Series A Convertible Preferred
Stock, par value $0.0001 per share to provide that, simultaneously with or
subsequent to the closing by us of a sale of our common stock at a price of at
least $0.50 per share and with an aggregate purchase price of at least
$18,420,000, the remaining 630,897 issued and outstanding shares of Series A
Stock, including any dividends otherwise owing with respect thereto, shall be
automatically converted into 8,785,483 shares of our common stock without any
further action required on the part of the holders of Series A Stock, and the
powers, designations, preferences and rights of holders of Series A Stock shall
automatically become null and void.  An Information Statement
pertaining to these amendments mailed to shareholders on or about January 15,
2010.  Our Series A Convertible Preferred Stock has been converted
into 8,785,483 shares of common stock pursuant to an amendment to the Series A
Certificate of Designation filed with the Delaware Secretary of State on
February 24, 2010.


20


PART II





Item 5    Market for Registrant’s Common Equity,
Related Stockholder Matters and Issuer Purchases of Equity
Securities





Market
information




At the
start of the year ended December 31, 2008, our common stock was trading on the
OTC Pink Sheets under the symbol AXPW.PK.  On July 3, 2008, our common
stock resumed trading on the Over the Counter Bulletin Board under the symbol
“AXPW”.  Trading in our common stock has historically been sporadic,
trading volumes have been low, and the market price has been
volatile.




The
following table shows the range of high and low bid prices for our common stock
as reported by the OTC Pink Sheets and the OTC Bulletin Board, as the case may
be, for each quarter since the beginning of 2007. The quotations reflect
inter-dealer prices, without retail markup, markdown or commission and may not
represent actual transactions.




Period
                    
                    High
                    
                    
                    LowFirst
      Quarter 2008
                    
                    $
                    2.74
                    
                    
                    $
                    1.85Second
      Quarter 2008
                    
                    $
                    2.50
                    
                    
                    $
                    1.15Third
      Quarter 2008
                    
                    $
                    2.05
                    
                    
                    $
                    1.30Fourth
      Quarter 2008
                    
                    $
                    1.72
                    
                    
                    $
                    1.01First
      Quarter 2009
                    
                    $
                    1.25
                    
                    
                    $
                    0.80Second
      Quarter 2009
                    
                    $
                    2.10
                    
                    
                    $
                    0.78Third
      Quarter 2009
                    
                    $
                    2.75
                    
                    
                    $
                    1.05Fourth
      Quarter 2009
                    
                    $
                    2.25
                    
                    
                    $
                    1.20





On March
17, 2010, the sale price for our common stock as reported on the Over the
Counter Bulletin Board was $1.15 per share.




Securities
outstanding and holders of record




On
December 31, 2009 there were approximately 463 record holders of our common
stock and 75,767,818 shares of our common stock issued and
outstanding.




Dividend
Policy




We have
not paid and do not expect to pay dividends on our common stock. Any future
decision to pay dividends on our common stock will be at the discretion of our
board of directors and will depend upon, among other factors, our results of
operations, financial condition and capital requirements.




Information
respecting equity compensation plans




Summary Equity Compensation
Plan Information: The following table provides summary information on our
equity compensation plans as of December 31, 2009:




Plancategory:
                        
                        Numberofshares
                          issuableonexerciseof
                          outstandingoptions
                        
                        
                        Weightedaverage
                          exercisepriceof
                          outstandingoptions
                        
                        
                        Numberofshares
                          availableforfuture
                          issuanceunderequity
                          compensationplansEquitycompensationplansapprovedbystockholders2004
      Incentive Stock Plan
                        
                        
                        51,950
                        
                        
                        $
                        3.48
                        
                        
                        
                        1,217,0502004
      Directors’ Option Plan
                        
                        
                        438,120
                        
                        
                        $
                        1.78
                        
                        
                        
                        32,315Equity compensation plans not
      approved by stockholdersContract
      options held by officers
                        
                        
                        908,000
                        
                        
                        $
                        3.22Contract
      options held by employees, consultants and attorneys
                        
                        
                        485,400
                        
                        
                        $
                        2.74Total
      equity awards
                        
                        
                        1,883,470
                        
                        
                        $
                        2.77


21





The
Company has two stockholder approved equity compensation plans and occasionally
enters into employment and other contracts that provide for equity compensation
arrangements other than those contemplated by the stockholder approved plans.
The following sections summarize the Company’s equity compensation
arrangements.




Equity
Incentive Plans Not Approved by Stockholders: The Company issued 629,300,
228,000, 789,500 and 36,000 stock purchase options in the fiscal years ended
December 31, 2006, 2007, 2008 and 2009, respectively, to officers, employees,
attorneys and consultants in connection with contractual agreements that do not
reduce the shares available under the stockholder’s approved plans. The
following paragraphs summarize these contractual stock options.




In
January 2004, members of the law firm of Fefer, Petersen & Cie, general
corporate counsel (of which one member was a director of the Company at the
time) were granted two-year contractual options to purchase 189,300 shares of
common stock at a price of $2.00 per share as partial compensation for services
rendered, valued at $68,296. These members also received 116,700 warrants as
consideration of pre-merger Tamboril debt. In August 2004, $1.00 of the exercise
price of the total 306,000 options and warrants owned by these members was
considered paid in advance in consideration of unbilled legal services provided
by the firm. The Company recorded $306,000 related to this reduction. All of the
warrants and options were exercised in the fourth quarter of 2005; however,
$306,000 of the amount is included in stock subscription receivable as of
December 31, 2005 and was received in 2006.




In July
2004, the President and Chief Operating Officer of the Company, Charles
Mazzacato, was granted a contractual option to purchase 240,000 shares of common
stock at a price of $4.00 per share. This option vests on a monthly basis at the
rate of 60,000 shares per year commencing July 31, 2005 and is exercisable for
five years after each vesting date. The market value of our common stock at the
date of grant was greater than the exercise price, which resulted in a total
intrinsic value of $180,000. In accordance with  Accounting Principles
Board Opinion 25, “Accounting for Stock Issued to Employees” (“APB 25”) the
Company expensed the intrinsic value over the vesting period which resulted in
expense of $18,750 and $45,000 during the years ended December 31, 2004 and
2005, respectively. On January 1, 2006, the Company adopted the provisions of
ASC718 “Compensation – Stock Compensation” using the modified prospective
transition method as discussed below and recorded compensation of $124,364
during the year ended December 31, 2006. During the year ended December 31, 2006
the options were forfeited as a result of his termination of employment from the
Company in 2006.




In July
2004, the Chief Financial Officer of the Company, Peter Roston, was granted a
contractual option to purchase 200,000 shares of common stock at a price of
$4.00 per share. This option will vest on a monthly basis at the rate of 50,000
shares per year commencing July 31, 2005 and is exercisable for five years after
each vesting date. The market value of the Company’s common stock at the date of
grant was greater than the exercise price, which resulted in a total intrinsic
value of $150,000. In accordance with APB 25 the Company has expensed the
intrinsic value over the vesting period, which resulted in expense of $15,625
and $37,500 during the years ended December 31, 2004 and 2005, respectively. On
January 1, 2006, the Company adopted the provisions of ASC 718 (formerly FASB
123R) as discussed below and recorded compensation of $138,182 during the year
ended December 31, 2006. During the year ended December 31, 2006 the options
were forfeited as a result of his termination of employment from the Company in
2006.




In April
2005, the Chief Executive Officer of the Company, Thomas Granville, was granted
a contractual option to purchase 180,000 shares of common stock at a price of
$2.50 per share. This option vests at the rate of 7,500 shares per month
commencing May 1, 2005 and is exercisable for five years after each vesting
date. The market value of our common stock at the date of grant was less than
the exercise price which resulted in no intrinsic value in accordance with APB
25. On January 1, 2006, the Company adopted the provisions of ASC 718 as
discussed below and recorded compensation of $112,500 during the year ended
December 31, 2006.




In April
2005, a European financial advisor was granted a contractual option to purchase
30,000 shares of common stock at a price of $2.50 per share. Options for an
aggregate of 20,000 shares vested during the year ended December 31, 2005 and
will be exercisable for five years. On December 31, 2005, a total of 10,000
unvested options were forfeited when the advisory agreement was terminated. The
options were valued at $35,998 using the Black-Scholes-Merton option pricing
model and included as expense in 2005.




In
September 2005, the Chief Technical Officer of the Company, Edward Buiel, was
granted a contractual option to purchase 90,000 shares of common stock at a
price of $4.00 per share. This option vests at the rate of 2,500 shares per
month commencing October 2005 and is exercisable for five years after each
vesting date. The market value of our common stock at the date of grant was less
than the exercise price which resulted in no intrinsic value in accordance with
APB 25. On January 1, 2006, the Company adopted the provisions of ASC 718 as
discussed below and recorded compensation of $68,100 during the year ended
December 31, 2006.


22





In
February 2006, the Chief Executive Officer of the Company, Thomas Granville, was
granted a three year option to purchase 500,000 shares of common stock at an
exercise price of $6.00. Of this total 300,000 options vested immediately and
the balance is expected to vest, subject to the attainment of certain specified
objectives, over the next one to three years. These options are valued at
$300,187 utilizing the Black-Scholes-Merton option pricing model with $259,027
of compensation recorded in 2006.





In
February 2006, the Chief Technical Officer of the Company, Edward Buiel, was
granted an option to purchase 35,000 shares of common stock at an exercise price
of $6.00. Of this total 10,000 options vested immediately and the balance is
expected to vest, subject to the attainment of certain specified objectives,
over the next two to three years. These options are valued at $20,994 utilizing
the Black-Scholes-Merton option pricing model with $13,330 of compensation
recorded in 2006.





In
February 2006, members and affiliates of the law firm of Fefer, Petersen &
Cie, general corporate counsel (of which one member was a director of the
Company at the time) were granted a three year option to purchase 360,000 shares
of common stock at an exercise price of $6.00. Of this total 240,000 options
vested immediately and the balance will vest at the rate of 10,000 shares per
month during the year ended December 31, 2006. These options are valued at
$193,449 utilizing the Black-Scholes-Merton option pricing model and are
recorded as legal expense in 2006.





In
February 2006, the external bankruptcy counsel of the Company, Cecilia
Rosenauer, was granted a three year option to purchase 15,000 shares of common
stock at an exercise price of $6.00. The options vested on the effective date of
Mega-C’s Chapter 11 plan of reorganization, which took place in November 2006.
These options are valued at $2,483 utilizing the Black-Scholes-Merton option
pricing model and are recorded as legal expense in 2006.





In March
2006, two employees were granted three year options to purchase a total of
24,000 shares of common stock at an exercise price of $4.00 and $6.00. The
options vest at a rate of 2,500 per month over the first 6 months and 1,500 per
month thereafter. The options are exercisable through March 2009. These options
are valued at $28,257 utilizing the Black-Scholes-Merton option pricing model
with $24,408 of compensation recorded in 2006.





In
December 2006, the Chief Technical Officer of the Company, Edward Buiel, was
granted a contractual option to purchase an additional 100,000 shares of our
common stock at a price of $3.75 per share. A total of 50,000 options vested on
December 29, 2009 and the remaining 50,000 will vest on December 29, 2010. The
options will be exercisable for a period of five years from the vesting date.
These options are valued at $267,372, utilizing the Black-Scholes-Merton option
pricing model with $6,481 of compensation recorded in 2006.





In
February 2006, a consultant, Trey Fecteau, was granted a three year option to
purchase 97,000 shares of common stock at an exercise price of $4.00. The
options vested upon completion of contractual services in December 2006. The
options are exercisable through December 2009. These options are valued at
$150,702 utilizing the Black-Scholes-Merton option pricing model. This amount
reduced the proceeds of the Series A Preferred Stock offering in
2006.





In
January 2007, D. Walker Wainwright, a director of the Company, was granted an
option to purchase 40,000 shares of common stock at an exercise price of $5.00
as compensation for services related to due diligence, negotiation and sale of
the 2006 Series A Preferred Stock offering. These three-year options were
immediately vested on the date of grant, are valued at $52,230 utilizing the
Black-Scholes-Merton option pricing model and are recorded as offering costs in
2007.





In August
2007, the Company’s Chief Financial Officer, Andrew Carr Conway, Jr., was
granted a contractual option to purchase 80,000 shares of common stock at an
exercise price of $4.50. 20,000 options vest immediately upon contract inception
and the remainder vest at a rate of 10,000 per month over the life of his
six-month employment contract. These two-year options are valued at $37,356
utilizing the Black-Scholes-Merton option pricing model with $24,904 recorded as
compensation in 2007.





In
December 2007, the Company’s Vice-President of Manufacturing Engineering, Robert
Nelson, was granted a contractual option to purchase 108,000 shares of common
stock at an exercise price of $5.00. The options vest at a rate of 3,000 per
month over a three year period, but are being amortized over the term of his two
year employment contract. These five-year options are valued at $108,504
utilizing the Black-Scholes-Merton option pricing model with $4,521 recorded as
compensation in 2007.


23


In March
2008, the Company’s Chief Financial Officer, Andrew Carr Conway, Jr., was
granted a contractual option to purchase 30,000 shares of common stock at an
exercise price of $4.50. 10,000 options vested immediately upon grant and are
exercisable through December 2009, and the remaining 20,000 options vested in
May 2008 and are exercisable through May 2010.  These options are
valued at $15,600 utilizing the Black-Scholes-Merton option pricing model with
$15,600 recorded as compensation in 2008.





In June
2008, the Company’s Chief Financial Officer, Andrew Carr Conway, Jr., was
granted a contractual option to purchase 10,000 shares of common stock at an
exercise price of $4.50. These options vested in June 2008 and are exercisable
through June 2010. These options are valued at $5,200 utilizing the
Black-Scholes-Merton option pricing model and recorded as compensation in
2008.





In June
2008, the following Equity Awards were issued as part of a restructuring of key
employee contracts that was designed to provide for the long term stability of
the Company:





(i) Our
Chief Executive Officer, Thomas Granville, was granted a contractual option to
purchase an additional 90,000 shares of our common stock at a price of $2.50 per
share. The options vest prorated over the 24-month term of his contract, and are
exercisable for a period of five years from the vesting date. These options are
valued at $79,872, utilizing the Black-Scholes-Merton option pricing model with
$23,296 of compensation recorded in 2008.





(ii) Our
Chief Technical Officer, Edward Buiel, was granted a contractual option to
purchase an additional 100,000 shares of our common stock at a price of $2.50
per share. The options will cliff vest on May 31, 2011, and are exercisable for
a period of five years from the vesting date. These options are valued at
$95,436, utilizing the Black-Scholes-Merton option pricing model with $18,557 of
compensation recorded in 2008.





(iii) Our
former Chief Financial Officer, Donald Hillier, was granted an option to
purchase 180,000 shares of our common stock. The exercise price of the option is
$2.50 per share, and the option vests at the rate of 5,000 shares per month
through the term of the Employment Agreement and are exercisable for a period of
5 years from the vesting date. These options are valued at $179,244, utilizing
the Black-Scholes-Merton option pricing model with $34,853 of compensation
recorded in 2008.





(iv)
Three employees were granted contractual options to purchase an additional
200,000 shares of our common stock at a price of $2.50 per share. 5,000 of these
options vested in June 2008 upon execution of the employment contracts, with the
balance cliff vesting on June 15, 2011, and are exercisable for a period of
three years from the vesting date. These options are valued at $165,041,
utilizing the Black-Scholes-Merton option pricing model with $34,222 of
compensation recorded in 2008.





(v) Seven
employees were granted contractual options to purchase an additional 179,500
shares of our common stock at a price of $2.50 per share. 43,500 of these
options vested in December 2008 upon execution of the employment contracts, with
the balance vesting through the term of the employment agreement and are
exercisable for a period of three years from the vesting date. These options are
valued at $36,171, utilizing the Black-Scholes-Merton option pricing model with
$5,330 of compensation recorded in 2008.





During
2009 the Company granted a total of 36,000 contractual stock options to an
employee at an exercise price of $2.50 per share. 6,000 of these options vested
in January 2009 upon execution of the employment contract, with the balance
vesting at a rate of 1,000 per month, and are exercisable for a period of five
years from vesting date. These options are valued at $14,507, utilizing the
Black-Scholes-Merton model with $4,835 of expense expected to be recorded during
2009.


24


Item
7 Management’s Discussion and Analysis of Financial Condition and Results of
Operations





The
following discussion should be read in conjunction with the consolidated
financial statements and the related notes that are set forth in our financial
statements elsewhere in this annual report.





Overview





We are a
development stage company that was formed in September 2003 to acquire and
develop certain innovative battery technology. Since inception, Axion Power
Corporation, (“APC”) has been engaged in R&D of the new technology for the
production of lead-acid-carbon energy storage devices that we refer to as our
PbC devices. As of December 31, 2003, APC engaged in a reverse acquisition with
Tamboril, a public shell company. Tamboril was originally incorporated in
Delaware in January 1997, operated a wholesale cigar business until December
1998 and was an inactive public shell thereafter until December 2003. The
information presented herein relates to the operations of APC, the accounting
acquirer. Tamboril, the legal acquirer, changed its name to Axion Power
International, Inc. We formed a new corporation, Axion Power Battery
Manufacturing Inc., which purchased the foreclosed assets of a failed battery
manufacturing plant and now conducts our manufacture of specialty
batteries.





At
December 31, 2009, we have incurred cumulative net losses of approximately $60.9
million applicable to the common shareholder. This includes approximately $2.3
million in interest of which $1.4 million relates to discount on notes. We have
an additional $17.7 million in accumulated preferred stock dividends.We had approximately
$24.7 million in current assets and $1.6 million in current liabilities at
December 31, 2009, which left a net working capital surplus of approximately
$23.2 million. As discussed below, we netted $24.9
million in cash proceeds and converted $0.4 of notes payable including fees into
the sale of our common stock in December 2009, along with $0.8 million in debt
financing proceeds and $0.6 million in grant funding proceeds. Management
believes those funds will support operations through 2012.





During
2009, we continued to make improvements to our production processes including
capital acquisitions and quality control systems. We also received, installed
and continued to engineer our first automated electrode manufacturing line.
Manufacturing activity for 2009 consisted of continued production of PbC
prototype and test batteries, as well as manufacturing traditional batteries
pursuant to sales orders. Manufacturing of traditional batteries enables us to
train factory personnel, test systems and make production and quality
improvements with the focus on future PbC battery
production.  Additionally, some of the proceeds from the December 2009
private placement will be used to complete our first electrode production line
and add the proper automated quality control components. This basic line will
then be duplicated and improved as additional electrode production lines are
added to allow us to get to meaningful commercialization levels. We will also
use a portion of the proceeds for working capital.





Since
early in 2008, we have devoted time and financial resources to upgrading, and
where necessary replacing, existing battery manufacturing equipment as part of
our long range business plan. In the future, a large portion of this upgraded
equipment will be used to manufacture our proprietary PbC lead carbon product.
The Quercus Trust invested $18 million in us in 2008 which, among other
things, moved these upgrades forward.  The investment also
allowed us to pursue design and fabrication of automated electrode
manufacturing equipment, which will be used in the manufacture of
the negative carbon electrode component of our PbC battery.





Key
Performance Indicators





Because
of our early stage of development, the usual financial measures are not
particularly relevant or helpful in the assessment of company
operations.





We do not
use non-financial measures to evaluate our performance other than the degree of
success of our R&D and demonstration projects. Our demonstration projects
entail extended periods of time to assess our energy devices over multiple
charge and discharge cycles. Further, the results of our demonstration projects
do not lend themselves to simple measurement and presentation.





The
single most significant financial metric for us is the adequacy of working
capital in order to continue to fund our R&D efforts and move to the
commercialization of our proprietary product. Capital is also necessary to fund
the equipment and methods required to progress from demonstration projects to
commercial deployment. We believe we can maintain operations and fund R&D
and production through 2012 without further capital infusions.


25


We
believe we need to continue to characterize and perfect our products in house
and through a limited number of demonstration projects before moving into mass
production. While the results of this work are moving toward that goal, we
cannot assure you that the products will be successful in their present design
or that further R&D will not be needed. The successful completion of present
and future characterization and demonstration projects is critical to the
development and acceptance of our technology.





We must
devise methodologies to manufacture our energy storage devices in commercial
quantities. While we have assembled an engineering team that we believe can
accomplish this goal, and are adding to it as we go forward, there is no
assurance that we will be able to successfully mass produce our
product.





If we
successfully complete our characterization and demonstration projects, we must
present sufficiently compelling evidence to prospective users of energy storage
devices in order to persuade them to purchase our technology.





Material
Trends and Uncertainties





We will
continue to utilize substantial portions of our available cash funds for
R&D. Even with adequate funding, there is no assurance our new technology
can be successfully commercialized. While we intend to continue to manufacture
specialty batteries and AGM batteries, there is no assurance of profits or
whether those profits will be sufficient to sustain us as we continue to develop
our new technology.





Recent
Financing Activities





The Quercus Investment. On
January 14, 2008, we entered into the Securities Purchase Agreement with
Quercus, pursuant to which we agreed to issue to Quercus up to 8,571,429 shares
of our common stock, together with five year common stock purchase warrants that
will entitle the holder to purchase up to 10,000,000 additional shares of our
common stock.





At the
initial closing on January 14, 2008, Quercus invested $4.0 million in exchange
for 1,904,762 shares and warrants to purchase an additional 2,857,143 shares at
an exercise price of $2.60 per share. At the second closing on April 17, 2008,
Quercus invested an additional $4.0 million in exchange for 1,904,762 shares of
our common stock and warrants to purchase an additional 2,380,953 shares of
common stock at an exercise price of $2.60 per share.





On June
30, 2008, Quercus invested the final $10.0 million in exchange for 4,761,905
shares of our common stock and warrants to purchase an additional 4,761,905
shares of stock at an exercise price of $2.60 per share. All of the warrants
issued to Quercus expire by June 29, 2013. A portion of the proceeds of the June
30, 2008 financing were used to retire the remainder of the $2,640,000 December
2007 Bridge Loan that we had previously entered into. By June 30, certain of the
bridge lenders had converted $1,080,684 into 514,611 shares of common stock and
warrants to purchase 580,940 shares of common stock at an exercise price of
$2.60 per share. The warrant expires on June 29, 2013.  As a result of
conversion and repayment, the December 2007 Bridge Loans have been completely
retired, extinguishing all indebtedness under those instruments as of July 1,
2008.





Machinery and Equipment Loan
Fund.  On July 22, 2009, the Pennsylvania Department of
Community and Economic Development approved our application for a loan from the
Machinery and Equipment Loan Fund in the maximum amount of
$791,055.  The proceeds of the loan will be used to defray part of the
cost of equipment purchased for use at our facility on Green Ridge Road in
New Castle. The loan will bear interest at the rate of 3% interest per annum and
will be payable in equal monthly installments of principal and interest over a
period of seven years, maturing on October 1, 2016.  We are required
to create and/or retain the number of full-time equivalent jobs specified in the
loan application within three (3) years after the date of disbursement of
Machinery and Equipment Loan Fund loan proceeds. The Machinery and Equipment
Loan Fund loan initial proceeds in the amount of $776,244 were received by us on
September 14, 2009.





2009 Secured Bridge Loan
Financing.  In August of 2009 we structured a short term bridge
loan with certain of our directors and investors, the “Secured Bridge Loan”,
secured by all of our intellectual property. Under the arrangement, we received
funding of $800,000 through September 30, 2009.


26


The
Secured Bridge Loan had an original maturity date of December 31, 2009; a loan
origination fee equal to 8% of the original loan; 3,405 warrants upon occurrence
of the loan issuable for each $100,000 invested and exercisable at $2.00 until
August 12, 2014. Anti-dilution provisions apply to the warrants. On or about
December 8, 2009, we borrowed an additional $541,666 from Robert Averill, one of
our directors, on substantially similar terms to the bridge loans in August
2009. The new bridge loan bears no interest but has a fee of 8% of the
principal amount thereof.  The holders of these notes had the right to
convert the note together with interest, into any security sold by us in an
institutional offering.  $371,353 of the principal amount and fee was
converted into an investment in us as part of the December 22, 2009 private
placement described below, and $970,313 of principal amount and accrued fees
thereon was repaid in December of 2009.   Upon repayment of the
note, all conversion rights terminated.





TheDecember 2009 Private
Placement.  On December 18, 2009, we entered into a Securities
Purchase Agreement pursuant to which we agreed to issue common stock at a price
of $0.57 per share for total gross proceeds of $26,081,816 and net cash proceeds
of $24,928,323 after “breakup” fees and cash offering costs. The transaction
was consummated on December 22, 2009.





In
connection with the execution of the Securities Purchase Agreement, The Quercus
Trust entered into a Lock Up Agreement with regard to all of its shares of our
common stock held by The Quercus Trust and any warrants to purchase shares of
our common stock for a period of one year, and an Amendment No. 2 to the
Securities Purchase Agreement with The Quercus Trust pursuant to which it agreed
(i) to waive further registration rights on shares owned by The Quercus
Trust that have not yet been registered; (ii) to waive further anti-dilution
rights on its warrants to purchase our common stock below an exercise price of
$0.75 per share; and (iii) to pay the Company $500,000 in lieu of acquiring an
additional $2,000,000 of our common stock under the Securities Purchase
Agreement with the Quercus Trust.





In the
registration rights agreement entered into in conjunction with the Securities
Purchase Agreement with those selling stockholders, we agreed to file one or
more registration statements under the Securities Act of 1933, as amended,
covering the resale by those selling stockholders of the shares of our common
stock issued pursuant to the Securities Purchase Agreement. The registration
rights provisions contain conventional terms including indemnification and
contribution undertakings and a provision for liquidated damages in the event
the required registration statements are not filed, or are not declared
effective, prior to deadlines set forth in the Securities Purchase
Agreement.





Grant
Activities





On
October 6, 2008, we received notice that we were the recipient of a federal
grant for the development of new lightweight, high-powered batteries for use in
vehicles operated by the U.S. Marine Corps. The first year, of this grant,
provides $1,200,000 to us for the project. In December of 2006 and January of
2007, we presented our technology to branches of the Armed Forces. In February
of 2007, after receiving a letter of support from the Office of Naval Research,
we submitted a proposal to the Department of Defense. The proposal to further
study the applicability of our PbC technology for use in military assault
vehicles was sponsored by a U.S. Congressman. The grant was not approved in the
2008 federal budget, but was resubmitted and approved in the 2009
budget.  Under the grant program, we will be working with the Navy and
Marine Corps to study the feasibility of utilizing one of our PbC ® products in
their assault and silent watch vehicles.We expect to
complete negotiation of our agreement for this project in 2010 and would expect
to commence activities immediately thereafter.





On
February 5, 2009, we received two grants from the Advanced Lead-Acid Battery
Consortium (the “ALABC”), the leading industry association made up in part by
the largest companies supplying the world’s battery market. The two grants total
approximately $380,000 and will help support research into two key areas. The
first grant seeks to identify the mechanism by which the optimum specification
of carbon, when included in the negative active material of a valve-regulated
lead-acid battery, provides protection against accumulation of lead sulfate
during high-rate partial-state-of-charge operation. The second grant seeks
simply to characterize our proprietary PbC battery in hybrid electric vehicle
(HEV) type duty-cycle testing. The grants are administered through the Durham,
NC-based International Lead Zinc Research Organization acting on behalf of the
ALABC. The research work is already underway and will continue into the first
quarter of 2010.





On
February 9, 2009, we received notice that we are the recipient a grant from the
Pennsylvania Alternative Fuels Incentive Grant program. The $800,000 initial
grant, which was announced by Governor Edward Rendell on January 29, 2009, is
part of Pennsylvania’s overall effort to invest in businesses that are creating
important and innovative clean energy and bio-fuels technologies. The award
proceeds will be used to demonstrate the advantages our proprietary PbC battery
technologies provide in a variety of electric vehicle types including: HEVs,
such as the popular Toyota Prius;  “plug-ins” (PHEVs)  used
in commuter, delivery and other vehicles; and in electric vehicles (EVs) and
converted (from combustion engine operation) EVs. The grant was initially billed
against in the fourth quarter of 2009 and the project will continue into the
fourth quarter of 2010.


27


On August
5, 2009, the United States Department of Energy announced that “Exide Technology
with Axion Power International” was awarded a $34.3 million grant for the
production of advanced lead-acid batteries using lead-carbon electrodes for
micro and mild hybrid applications under a program to accelerate the
Manufacturing and Deployment of the Next Generation of U.S. Batteries and
Electric Vehicles.  As of the date of this report, it is still not
determined what portion, if any, of this grant will be awarded to or indirectly
made available for the benefit of the Company.





On
December 22, 2009,  the Pennsylvania Energy Development Authority
awarded us a $248,650 grant to assist us in the development and deployment of an
Axion PowerCubeTM battery energy storage system using the our PbC battery
technology. The 500 kilowatt PowerCube will be built and installed at our New
Castle battery manufacturing facility and will be designed to enhance a Smart
Grid electrical distribution system, that will potentially include  a
future solar-powered electric vehicle charging station and a potential
wind-powered energy system.  We expect to begin work
on this project in the first quarter of 2010.





In
a press release dated February 22, 2010, it was announced that Axion Power
Battery Manufacturing, Inc. will receive a $298,605 solar energy program grant
to assist with solar power energy storage research and development. This grant,
along with proceeds from the December 22, 2009 Pennsylvania Energy Development
Authority award will contribute funding to our development program with an
estimated total project cost of $1 million.





A summary
of awarded grants is listed as follows:


Total Grant
                    Amount
                  
                  
                  2009 Cost
                    ReimbursementDOD
      Office of Naval Research
                  
                  $
                  1,200,000
                  
                  
                  $
                  —ALABC
                  
                  
                  380,000
                  
                  
                  
                  380,000PA
      Alternative Fuels Incentive Grant Program
                  
                  
                  800,000
                  
                  
                  
                  195,000Pennsylvania
      Energy Development Authority
                  
                  
                  248,650
                  
                  
                  
                  —Pennsylvania
      Department of Community and Economic Development
                  
                  
                  298,605
                  
                  
                  
                  —$
                  2,927,255
                  
                  
                  $
                  575,000




Results
of Operations





The
comparative data below presents our results of operations for the years ended
December 31, 2009 and 2008. While certain of the data is not strictly comparable
because some line items are positive and some negative, the provided percentages
demonstrate the relative significance of the individual line items and also the
relative changes from year to year.





·
            Our primary activity in our
      current development stage consists of R&D efforts for advanced battery
      applications and PbC carbon electrode
  devices.





·
            Revenues are for specialty
      collector and racing car, AGM batteries, flooded batteries, all sold to
      customers, as well as PbC test batteries sold to a strategic partner. Cost
      of goods sold represent the raw materials, components, labor and
      manufacturing overhead absorbed in producing batteries sold to
      customers.





·
            Research
      & development expenses are incurred to design, develop, and test
      advanced batteries and an energy storage product based on our patented
      lead carbon technology. These costs include engineering and R&D
      employee labor and expenses, materials and components consumed in
      production for pilot products, demonstration projects, testing and
      prototypes. These costs also include manufacturing costs incurred for
      R&D activities including the creation, testing and improvement of
      plant production processes needed for production of our proprietary
      technologies.





·
            Selling,
      general and administrative expenses include employee compensation, legal,
      auditing and other costs associated with our Securities and Exchange
      Commission filings, selling and marketing costs, investor public
      relations, and legal costs associated with
  litigation.


28







Years EndedDecember 31,Statements
      of Operations
                                    
                                    2009
                                    
                                    
                                    % of net loss
                                    
                                    
                                    2008
                                    
                                    
                                    % of net lossRevenues
                                    
                                    $
                                    1,843,592
                                    
                                    
                                    
                                    
                                    
                                    $
                                    679,559Cost
      of goods sold
                                    
                                    
                                    1,693,714
                                    
                                    
                                    
                                    
                                    
                                    
                                    368,922Gross
      profit
                                    
                                    
                                    149,878
                                    
                                    
                                    
                                    -0.8
                                    %
                                    
                                    
                                    310,637
                                    
                                    
                                    
                                    -2.9
                                    %ExpensesResearch
      & development
                                    
                                    
                                    4,426,956
                                    
                                    
                                    
                                    23.8
                                    %
                                    
                                    
                                    3,960,909
                                    
                                    
                                    
                                    37.3
                                    %Selling,
      general & administrative
                                    
                                    
                                    3,837,526
                                    
                                    
                                    
                                    20.6
                                    %
                                    
                                    
                                    4,846,189
                                    
                                    
                                    
                                    45.7
                                    %Interest
      expense - related party
                                    
                                    
                                    186,063
                                    
                                    
                                    
                                    1.0
                                    %
                                    
                                    
                                    1,137,436
                                    
                                    
                                    
                                    10.7
                                    %Derivative
      revaluation
                                    
                                    
                                    6,292,401
                                    
                                    
                                    
                                    33.8
                                    %
                                    
                                    
                                    (2,844
                                    )
                                    
                                    
                                    0.0
                                    %Interest
      & other income, net
                                    
                                    
                                    (14,641
                                    )
                                    
                                    
                                    -0.1
                                    %
                                    
                                    
                                    (57,224
                                    )
                                    
                                    
                                    -0.5
                                    %Net
      loss before income taxes
                                    
                                    
                                    (14,578,427
                                    )
                                    
                                    
                                    78.3
                                    %
                                    
                                    
                                    (9,573,829
                                    )
                                    
                                    
                                    90.2
                                    %Income
      Taxes
                                    
                                    
                                    -
                                    
                                    
                                    
                                    0.0
                                    %
                                    
                                    
                                    (79,170
                                    )
                                    
                                    
                                    -0.7
                                    %Deficit
      accumulated during development stage
                                    
                                    
                                    (14,578,427
                                    )
                                    
                                    
                                    78.3
                                    %
                                    
                                    
                                    (9,494,659
                                    )
                                    
                                    
                                    89.5
                                    %Less
      preferred stock dividends and beneficial conversion
feature
                                    
                                    
                                    (4,046,836
                                    )
                                    
                                    
                                    21.7
                                    %
                                    
                                    
                                    (1,117,699
                                    )
                                    
                                    
                                    10.5
                                    %Net
      loss applicable to common shareholders
                                    
                                    $
                                    (18,625,263
                                    )
                                    
                                    
                                    100.0
                                    %
                                    
                                    $
                                    (10,612,358
                                    )
                                    
                                    
                                    100.0
                                    %Basic
      and diluted net loss per share
                                    
                                    $
                                    (0.67
                                    )
                                    
                                    
                                    
                                    
                                    
                                    $
                                    (0.46
                                    )Weighted
      average common shares outstanding
                                    
                                    
                                    27,619,839
                                    
                                    
                                    
                                    
                                    
                                    
                                    
                                    22,826,187





Summary
of Consolidated Results for the Year Ended December 31, 2009 compared with the
Year Ended December 31, 2008




Revenue




Revenues
for year ended December 31, 2009 were approximately $1.8 million compared to
revenues of approximately $0.7 million for the same period in 2008. This
represents an increase of 157% in revenues reported during 2009 over the same
period in 2008. This increase  is primarily the result
of  increased sales of flooded batteries to a large scale buyers group
and  to a large North American lead-acid battery manufacturing company
and also from sales of PbC test batteries to a strategic partner.  We
have two customers that accounted for approximately 61% of revenue for the year
ended December 31, 2009 and one customer accounted for 10% of revenue for the
same period in 2008.  As a Development Stage Company, with operational
focus on the development and commercialization of our PbC electrodes and
batteries, revenues generated from current PbC sales remain insignificant when
compared to total operations.




29


Cost
of Goods Sold




Cost of
goods sold represents costs for batteries sold to customers and includes various
raw materials with lead being the most significant.  We also use
components such as plastic battery cases and covers as well as separators and
acid.  We also incur manufacturing labor and overhead costs as well as
costs for packaging and shipping. Cost of goods sold for the year ended December
31, 2009 was approximately $1.7 million compared to cost of goods sold of
approximately $0.4 million for the year ended December 31, 2008.  This
represents approximately a 325% increase, and is consistent with the increase in
sales volume and the increase in sales of lower margin
products.  Included in cost of goods sold is a lower of cost or market
adjustment for inventory for the year ended December 31, 2009 which was $0.1
million as compared to $0 at December 31, 2008. This represents a reduction of
carrying costs for inventory items in which the expected net realizable value
exceeds the historical carrying costs.  As of December 31, 2009,
inventory costs of $1,008,092 consisted of $432,385 of finished goods, $212,844
of work-in-process and $364,557 of raw materials. As of December 31, 2008,
inventory costs of $1,269,515 consisted of $353,657 of finished goods, $343,776
of work-in-process and $572,082 of raw materials.





Research
& Development Expenses




Research
and development expenses include compensation for employees and contractors, as
well as small test equipment, supplies and overhead. These costs also include
manufacturing employee compensation, manufacturing facility and overhead costs
attributed to research and development activities. Research and development also
includes prototype production and testing costs. Research and development
expenses for year ended December 31, 2009 were approximately $4.4 million
compared to approximately $4.0 million for year ended December 31, 2008,
representing a 10% increase in spending in the year ended December 31, 2009 over
the year ended December 31, 2008. During 2009 research and development expenses
were reduced by $0.4 for cost reimbursements arising from research grant
proceeds invoiced and earned during the second half of 2009.  The
increase in expense is due to additional efforts incurred to design, develop and
test advanced batteries and an energy storage product based on our patented lead
carbon battery (PbC) including manufacturing activities to prepare the plant for
future PbC production, pilot product production and demonstration project
production activities.





Selling,
General & Administrative Expenses




Selling,
general and administrative expenses include compensation for employees and
contractors, legal and accounting fees, and costs incurred for investor
relations and activities associated with fund raising. Selling, general and
administrative costs for the year ended December 31, 2009 were approximately
$3.8 million compared to approximately $4.8 million for the year ended December
31, 2008. This represents a 21% decrease in spending compared with the same
period during 2008. In 2008, expenses included some non recurring costs due to
substantial legal, auditing and accounting expenses associated with becoming
current with our public filings.





Interest
Expense - Related Party




Interest
expense during the year ended December 31, 2009 was $0.2 million, as compared to
approximately $1.1 million for the year ended December 31, 2008, representing an
82% decrease.  This decrease was due to the satisfaction of
indebtedness in 2008, thus lowering interest accruing and payable in
2009.





Derivative
Revaluation




FASB ASC
815-40 "Derivatives and
Hedging – Contracts in Entity’s own Equity" became effective January 1,
2010 and required that derivative revaluations be recognized whenever the
Company incurs a liability associated with the issuance of an equity-based
instrument. The instrument is revalued for each reporting period until the
liability is settled.




Losses
from derivative revaluation for the year ended December 31, 2009, were $6.2
million. $5.0 million of the loss is attributed to revaluations of the warrants
issued to The Quercus Trust, comprised of a $7.2 million loss due to the reset
in the exercise price of the warrants previously issued to Quercus from $2.60 to
$0.75 per share, offset by $2.2 million of income from revaluations attributable
to lower stock prices. As part of the most recent amendment to the Quercus
Securities Purchase Agreement, The Quercus Trust waived any future “down round”
protection below $0.75; therefore, the liability attributed to those warrants
has been reclassified into stockholders’ equity. $1.3 million of the December
31, 2009 loss results from revaluation of warrants issued to placement agents
associated with the 2008 sale of Common Stock of the Company to The Quercus
Trust. Of this loss, $1.0 million arose as a result of the reduction of the
warrant exercise price in accordance with the warrant agreement from $2.60 to
$0.57 per share as a result of the December 2009 private
placement.  There was $2,844 in derivative revaluation income during
2008 prior to the adoption of FASB ASC 815-40.


30


Net
Loss




For the
fiscal year ended December 31, 2009, our net loss before income taxes increased
$5.0 million, or 52%, to $(14.6) million on revenue of $1.8 million, from an
operating loss of approximately $9.6 million on revenue of $0.7 million for the
fiscal year ended December 31, 2008. As discussed above, the factors primarily
affecting this increase in operating loss were the non-cash derivative
revaluation losses resulting from the January 1, 2009 adoption of FASB ASC
815-40 offset in part by lower selling, general, administrative and interest
expenses. Excluding derivative revaluation, loss before income taxes would have
been $8.3 million and $9.6 million for the years ended December 31, 2009 and
2008, respectively, a decrease of 14%.





The net
loss applicable to common shareholders for the year ended December 31, 2009 of
$18.6 million includes $4.0 million of non-cash charges related to the preferred
stock dividend. The net loss applicable to common shareholders of $10.6 million
for the year ended December 31, 2008 includes non-cash charges related to
preferred stock dividends of $1.1 million.




Liquidity
and Capital Resources





Our
primary source of liquidity has historically been cash generated from issuances
of our equity or debt securities. From inception through fiscal year ended
December 31, 2009, we generated insignificant revenue from operations. Given the
recent financing proceeds from our December 2009 private placement with gross
proceeds of $26 million, we expect to be able to continue operations through
2012 without additional funding from grants or financing resources.





We may
also receive funds from recent grant submissions both with the federal
government, through the “Stimulus Package” programs, and the Commonwealth of
Pennsylvania.  While these latter two events do not currently have a
direct effect on liquidity, they do provide the basis for potential liquidity
sources in 2010.





Cash,
Cash Equivalents, Short Term Investments and Working Capital





At
December 31, 2009, we had approximately $23.3 million of cash and cash
equivalents compared to approximately $3.1 million at December 31,
2008.  At December 31, 2009 working capital was $23.2 million compared
to a working capital of $5.4 million at December 31, 2008. Cash equivalents
consist of short-term liquid investments with original maturities of no more
than three months and are readily convertible into cash.  Due to the
timing of recent financing, on December 31, 2009, none of our cash had been
deposited into short-term liquid investments and remained as cash on deposit
fully insured by the FDIC Temporary Liquidity Guarantee Program.





Cash
Flows from Operating Activities





Net cash
used in operations for the year ended December 31, 2009 was $6.6 million. Cash
used in operations for this same period ended December 31, 2008 was
approximately $8.9 million. The use of cash in operations is reflective of the
net loss before income taxes at this developmental stage of the business. The
26% reduction of cash used in operations for the year ended December 31, 2009 as
compared to the prior year is primarily due to $1.0 million decrease in selling,
general and administrative costs, a $0.9 million reduction of interest expense,
and $0.4 million due to changes in components of operating assets and
liabilities.





Cash
Flows from Investing Activities





Net
cash provided by investing for year ended December 31, 2009 was approximately
$0.8 million compared to net cash used by investing activities of approximately
$(3.6) million for the same period ended December 31, 2008. Activities in 2009
include cash provided by the maturity of approximately $2.2 million of short
term investments deposited into cash equivalents offset by approximately $1.4
million used to purchase equipment for both production and research and
development and notes receivable.




31


Cash
Flows from Financing Activities


Financing
activities for the year ended December 31, 2009 consisted of $0.8 million in
Machinery and Equipment Loan Fund financing received from the Commonwealth of
Pennsylvania. $24.9 million in cash received from a private placement offering,
plus $0.3 million from the conversion of related party notes into common stock
as part of the December 2009 private placement offering.





Significant
Financing Arrangements





The Quercus
Investment. On January 14, 2008, we entered into the
Securities Purchase Agreement with Quercus, pursuant to which we agreed to issue
to Quercus up to 8,571,429 shares of our common stock, together with a five year
common stock purchase warrants that will entitle the holder to purchase up to
10,000,000 additional shares of our common stock.





At the
initial closing on January 14, 2008, Quercus invested $4.0 million in exchange
for 1,904,762 shares and warrants to purchase an additional 2,857,143 shares at
an exercise price of $2.60 per share. At the second closing on April 17, 2008,
Quercus invested an additional $4.0 million in exchange for 1,904,762 shares of
our common stock and warrant to purchase an additional 2,380,953 shares of at an
exercise price of $2.60 per share.





On June
30, 2008, we completed the third and final tranche of the Quercus investment,
whereby Quercus invested $10.0 million in exchange for 4,761,905 shares of our
common stock and warrants to purchase an additional 4,761,905 shares of stock at
an exercise price of $2.60 per share. All of the warrants issued to Quercus
expire by June 29, 2013. A portion of the proceeds of the June 30, 2008
financing were used to retire the remainder of the $2,640,000 December 2007
Bridge Loan that we had previously entered into. Prior to June 30, certain of
the bridge lenders had converted $335,000 into 158,659 shares of common stock
and warrants to purchase 237,488 shares of common stock at an exercise price of
$2.60 per share. On June 30, 2008, one of our directors converted $800,000 of
Bridge Loan indebtedness into 380,952 shares of common stock and a warrant to
purchase 380,952 shares at an exercise price of $2.60 per share. The warrant
expires on June 29, 2013 and the entire conversion was under the same terms as
the Quercus investment.





On
September 22, 2009, we entered into an Amendment to Warrants and Securities
Purchase Agreement with Quercus Trust, amending the January 14, 2008 Warrant and
Securities Purchase Agreement. The material terms of the Amendment are as
follows:





·
              The exercise for warrants
      previously issued to Quercus by us is reset from $2.60 per share to $0.75
      per share.




·
              Any previously accrued liquidated
      damages under the Securities Purchase Agreement to the date of the
      Amendment are
waived.




·
              Axion and Quercus
      have agreed to elect three new directors on behalf of Quercus, each
      to serve a three year
term.




·
              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.




·
              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.





This
Amendment provided 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 resolved
certain milestones set forth in the Agreement which were not fully met due to
the non completion of the Production Contract which was entered into by us on
June 27, 2008. See further discussion under the caption entitled 2009 Private Placement
below.





Machinery and Equipment Loan
Fund.  On July 22, 2009, the Pennsylvania Department of
Community and Economic Development approved our application for a loan from the
Machinery and Equipment Loan Fund in the maximum amount of
$791,055.  The proceeds of the loan will be used to defray part of the
cost of equipment purchased for use at our facility on Green Ridge Road in
New Castle. The loan will bear interest at the rate of 3% interest per annum and
will be payable in equal monthly installments of principal and interest over a
period of seven years maturing on October 1, 2016.  We are required to
create and/or retain the number of full-time equivalent jobs specified in the
loan application within three (3) years after the date of disbursement of
Machinery and Equipment Loan Fund loan proceeds. The Machinery and Equipment
Loan Fund loan initial proceeds in the amount of $776,244 were received by us on
September 14, 2009.


32


2009 Secured Bridge Loan
Financing.  In August of 2009 we structured a short term bridge
loan with certain of our directors and investors, the “Secured Bridge Loan”,
secured by all of our intellectual property. Under the arrangement, we received
funding of $800,000 through September 30, 2009.





The
Secured Bridge Loan had an original maturity date of December 31, 2009; a loan
origination fee equal to 8% of the original loan; 3,405 warrants upon occurrence
of the loan issuable for each $100,000 invested and exercisable at $2.00 until
August 12, 2014. Anti-dilution provisions apply to the warrants. On or about
December 8, 2009, we borrowed an additional $541,666 from Robert Averill, one of
our directors, on substantially similar terms to the bridge loans in August
2009. The new bridge loan bears no interest but has a fee of 8% of the
principal amount thereof.  The holders of these notes had the right to
convert the note together with interest, into any security sold by us in an
institutional offering.  $371,353 of the principal amount and fee was
converted into an investment in us as part of the December 22, 2009 private
placement described below, and $970,313 of principal amount and accrued fees
thereon was repaid in December of 2009.   Upon repayment of the
note, all conversion rights terminated.





2009 Private Placement. On
December 18, 2009, we entered into a Securities Purchase Agreement as a Private
Placement, pursuant to which we agreed to issue 45,757,572 shares of our common
stock at a price of $0.57 per share for total gross proceeds of $26,081,816.
($371,366 of which was a non-cash conversion of outstanding bridge loan
indebtedness plus fees and interest thereon), The net cash proceeds, from this
transaction of $24,928,323, include $500,000 in “breakup” fees from the Quercus
Trust, cash offering costs of $1,282,127  and $50,000 in legal fees
related to the transaction. We also issued 719,665 shares of our common stock
for $410,209 of non cash offering costs. The transaction was consummated on
December 22, 2009.





On
December 15, 2009, in connection with the execution of the Securities Purchase
Agreement, The Quercus Trust entered into a Lock Up Agreement with regard to all
of its shares of our common stock held by The Quercus Trust and any warrants to
purchase shares of our common stock for a period of one year, and an Amendment
No. 2 to the Securities Purchase Agreement with The Quercus Trust pursuant to
which it agreed (i) to waive further registration rights on shares owned by
The Quercus Trust that have not yet been registered; (ii) to waive further
anti-dilution rights on its warrants to purchase our common stock below an
exercise price of $0.75 per share; and (iii) to pay the Company $500,000 in lieu
of acquiring an additional $2,000,000 of our common stock under the Stock
Purchase Agreement with the Quercus Trust.





Research Grant .On December 22, 2009,
the Pennsylvania Energy Development Authority awarded us a $248,650 grant to
assist us in the development and deployment of an Axion PowerCube battery energy
storage system using our PbC batteries. The 500 kilowatt PowerCube will be
built and installed at our New Castle battery manufacturing facility and will be
designed to enhance a Smart Grid electrical distribution system, including a
potential future solar-powered electric vehicle charging station and a potential
wind-powered energy system.





The
“Management’s Discussion and Analysis of Financial Condition or Plan of
Operation” section of this prospectus discusses our financial statements, which
have been prepared in accordance with GAAP. To prepare these financial
statements, we must make estimates and assumptions that affect the reported
amounts of assets and liabilities. These estimates also affect our reported
revenues and expenses. On an ongoing basis, management evaluates its estimates
and judgment, including those related to revenue recognition, accrued expenses,
financing operations and contingencies and litigation. Management bases its
estimates and judgment on historical experience and on various other factors
that are believed to be reasonable under the circumstances, the results of which
form the basis for making judgments about the carrying value of assets and
liabilities that are not readily apparent from other sources. Actual results may
differ from these estimates under different assumptions or conditions. The
following represents a summary of our critical accounting policies, defined as
those policies that we believe are the most important to the portrayal of our
financial condition and results of operations and that require management’s most
difficult, subjective or complex judgments, often as a result of the need to
make estimates about the effects of matters that are inherently
uncertain.





Critical
Accounting Policies, Judgments and Estimates





Use of Estimates: The
preparation of financial statements in conformity with accounting principles
generally accepted in the United States requires management to make estimates
and assumptions that affect reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statement and the reported amounts of revenues and expenses during the reporting
period. Actual results could differ from the estimates.


33


Principles of Consolidation:The condensed consolidated financial statements include the accounts of
the Company, and its wholly owned subsidiaries, Axion Power Battery
Manufacturing, Inc., APC and C&T. All significant inter-company balances and
transactions have been eliminated in consolidation.





Derivative Financial
Instruments:The Company’s objectives in using derivative financial
instruments are to obtain the lowest cash cost-source of funds. Derivative
liabilities are recognized in the consolidated balance sheets at fair value
based on the criteria specified in FASB ASC topic 815-40 "Derivatives and Hedging – Contracts
in Entity’s own Equity". The estimated fair value of the derivative
liabilities is calculated using the Black-Scholes-Merton method where applicable
and such estimates are revalued at each balance sheet date, with changes in
value recorded as other income or expense in the consolidated statement of
operations. As a result of the Company’s adoption of ASC topic 815-40, effective
January 1, 2009 some of the Company’s warrants are now accounted for as
derivatives.





Inventory: Inventory is
recorded at the lower of cost or market value, and adjusted as appropriate for
decreases in valuation and obsolescence. Adjustments to the valuation and
obsolescence reserves are made after analyzing market conditions, current and
projected sales activity, inventory costs and inventory balances to determine
appropriate reserve levels. As of December 31, 2009, $118,257 in inventory
valuation reserves was established. Cost is determined using the first-in
first-out (FIFO) method. Many components and raw materials we purchase have
minimum order quantities. As of December 31, 2009, inventory costs of $1,008,092
consisted of $432,385 of finished goods, $212,844 of work-in-process and
$364,557 of raw materials. As of December 31, 2008, inventory costs of
$1,269,515 consisted of $353,657 of finished goods, $343,776 of work-in-process
and $572,082 of raw materials.





Revenue
Recognition: The Company recognizes revenue when there is
persuasive evidence of an agreement, delivery has occurred or services have been
rendered, the sales price to the buyer is fixed or determinable and
collectability is reasonably assured. Evidence of an agreement and fixed or
determinable sales price is predominantly based on a customer purchase order or
other form of written sales order or written agreement. Sales on account are
approved only for credit-worthy customers; otherwise payment in full is received
prior to shipment. Shipping terms are generally FOB shipping point and revenue
is recognized when product is shipped to the customer. In limited cases, if
terms are FOB destination or contingent upon collection by a prime contractor,
then in these cases, revenue is recognized when the product is delivered to the
customer’s delivery site or the conditions for collection have been fulfilled.
The Company records sales net of discounts and estimated customer allowances and
returns. We offer a 90 day free replacement warranty on some specialty collector
car and motorsports products. Collector car products also carry a four year
prorated warranty that begins at the end of the 90 days.  To date, our
warranty exposure on these products has been minimal. Flooded battery sales do
not have standard warranty provisions and instead are sold at a discount in lieu
of warranty.  There are no other post shipment obligations that may
impact the timing of revenue recognition for the year ending December 31,
2009.





Proceeds from
Grants: The Company records proceeds from grants over the period
necessary to match them with the related costs for which such grants are to
compensate. Grants for assets are recorded as deferred revenue and amortized
over the expected life of such asset as a reduction of depreciation expense. As
permitted by IAS 20.29, a grant relating to income may be reported separately as
other income or deducted from the related expenses. The Company records grants
as deduction from related expenses or as other income as follows: (i) grants not
deemed significant by management are considered to be reimbursements for
specific research activities and are recorded as such, and (ii) grants that are
considered material are those activities performed under a contract, typically
with a governmental agency, in which there is required a significant allocation
of Company resources, including personnel and materials, and thus are recorded
as other income.





The
Company recognizes proceeds from grants only when (a) there is reasonable
assurance that the Company has complied with all conditions attached to the
grant, and (b) the grant proceeds are collectible. To date proceeds from grants,
other than proceeds for assets, have been direct reimbursements for costs
incurred for research activities on behalf of a trade group that are deemed not
significant and are reported as a reduction of the direct research costs
incurred. To date, other than proceeds for assets and the two grants totaling
$380,000 from the ALABC, there have not been any proceeds recognized from grants
that are considered significant.


34


Stock-Based Compensation:
Prior to January 1, 2006, we accounted for stock option awards in
accordance with the recognition and measurement provisions of former
authoritative literature APB 25 and related interpretations, as permitted by
former authoritative literature Statement of Financial Accounting Standard No.
123 (“SFAS 123”), “Accounting
for Stock-Based Compensation”. Under APB 25, compensation cost for stock
options issued to employees was measured as the excess, if any, of the fair
value of our stock at the date of grant over the exercise price of the option
granted. Compensation cost was recognized for stock options, if any, ratably
over the vesting period. As permitted by SFAS 123, we reported pro-forma
disclosures presenting results and earnings as if we had used the fair value
recognition provisions of SFAS 123 in the Notes to the Condensed Consolidated
Financial Statements.





Effective
January 1, 2006, we adopted the provisions of FASB ASC topic 718 using the
modified prospective transition method. Stock-based compensation related to
non-employees is recognized as compensation expense in the accompanying
condensed consolidated statements of operations and is based on the fair value
of the services received or the fair value of the equity instruments issued,
whichever is more readily determinable. Our accounting policy for equity
instruments issued to consultants and vendors in exchange for goods and services
follows the provisions of FASB ASC 505-50 “Equity-Based Payments to
Non-Employees”(formerly EITF 96-18, “Accounting for Equity Instruments
That are Issued to Other Than Employees for Acquiring, or in Conjunction with
Selling, Goods or Services” and EITF 00-18, “Accounting Recognition for Certain
Transactions Involving Equity Instruments granted to Other Than
Employees.”) The measurement date for the fair value of the equity
instruments issued is determined at the earlier of (1) the date at which a
commitment for performance by the consultant or vendor is reached or (2) the
date at which the consultant or vendor’s performance is complete. In the case of
equity instruments issued to consultants, the fair value of the equity
instrument is recognized over the term of the consulting agreement.





Research and Development:R&D costs are recorded in accordance with FASB ASC topic 730, “Accounting for Research and
Development Costs,” which requires that costs incurred in R&D
activities covering basic scientific research and the application of scientific
advances to the development of new and improved products and their uses be
expensed as incurred. The policy of expensing the costs of R&D activities
relate to (1) in-house work conducted by us, (2) costs incurred in connection
with contracts that outsource R&D to third party developers and (3) costs
incurred in connection with the acquisition of intellectual property that is
properly classified as in-process R&D. R&D includes the conceptual
formulation, design and testing of product alternatives, construction of
prototypes, and operation of pilot plants. It does not include routine or
periodic alterations to existing products, production lines, manufacturing
processes, and other ongoing operations, even though those alterations may
represent improvements, and it also does not include market research
or market-testing activities. All R&D costs have been expensed





Off Balance Sheet
Arrangements





We do not
have any off-balance sheet arrangements that have, or are reasonably likely to
have, an effect on our financial condition, financial statements, revenues or
expenses.


35


Item
8   Financial Statements and Supplementary Data





REPORT OF
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM





To the
Board of Directors and Stockholders of


Axion
Power International, Inc.





As
successor by merger, effective October 1, 2009, to the registered public
accounting firm Rotenberg & Co., LLP, we have audited the accompanying
consolidated balance sheets of Axion Power International, Inc. as of December
31, 2009 and 2008, and the related consolidated statements of operations, cash
flows, and changes in stockholders’ equity and comprehensive income for the
years then ended and for the period since inception (September 18, 2003) through
December 31, 2009. Axion Power International Inc.’s management is responsible
for these consolidated financial statements. Our responsibility is to express an
opinion on these consolidated financial statements based on our
audits.





We
conducted our audits in accordance with the standards of the Public Company
Accounting Oversight Board (United States). Those standards require that we plan
and perform the audit to obtain reasonable assurance about whether the
consolidated financial statements are free of material misstatement. The company
is not required to have, nor were we engaged to perform, an audit of its
internal control over financial reporting. Our audit included consideration of
internal control over financial reporting as a basis for designing audit
procedures that are appropriate in the circumstances, but not for the purpose of
expressing an opinion on the effectiveness of the company’s internal control
over financial reporting. Accordingly, we express no such opinion. An audit also
includes examining, on a test basis, evidence supporting the amounts and
disclosures in the consolidated financial statements, assessing the accounting
principles used and significant estimates made by management, as well as
evaluating the overall consolidated financial statement presentation. We believe
that our audits provide a reasonable basis for our opinion.





In our
opinion, the consolidated financial statements referred to above present fairly,
in all material respects, the financial position of Axion Power International,
Inc. as of December 31, 2009 and 2008, and the results of its operations and its
cash flows for the years then ended and for the period since inception
(September 18, 2003) through December 31, 2009 in conformity with accounting
principles generally accepted in the United States of America.





As
discussed in Note 2 to the consolidated financial statements, effective January
1, 2009, the Company changed the manner in which it accounts for certain
warrants pursuant to new authoritative guidance in FASB ASC topic 815-40,
“Contract in Entity’s Own Equity.”





/s/ EFP
Rotenberg, LLP





EFP
Rotenberg, LLP


Rochester,
New York


March 30,
2010


36


AXION
POWER INTERNATIONAL, INC


CONSOLIDATED
BALANCE SHEETS


(A
Development Stage Company)





December 31, 2009
                                    
                                    
                                    December 31, 2008ASSETSCurrent
      Assets:Cash
      and cash equivalents
                                    
                                    $
                                    23,279,466
                                    
                                    
                                    $
                                    3,124,168Short-term
      investments
                                    
                                    
                                    -
                                    
                                    
                                    
                                    2,193,920Accounts
      receivable
                                    
                                    
                                    194,315
                                    
                                    
                                    
                                    128,035Other
      receivables
                                    
                                    
                                    208,179
                                    
                                    
                                    
                                    64,456Prepaid
      expenses
                                    
                                    
                                    79,987
                                    
                                    
                                    
                                    78,989Inventory
                                    
                                    
                                    1,008,092
                                    
                                    
                                    
                                    1,269,515Total
      current assets
                                    
                                    
                                    24,770,039
                                    
                                    
                                    
                                    6,859,083Property
      & equipment, net
                                    
                                    
                                    4,216,080
                                    
                                    
                                    
                                    3,274,183Other
      receivables, non-current
                                    
                                    
                                    34,601
                                    
                                    
                                    
                                    28,388TOTAL
      ASSETS
                                    
                                    $
                                    29,020,720
                                    
                                    
                                    $
                                    10,161,654LIABILITIES
      AND STOCKHOLDERS' EQUITYCurrent
      Liabilities:Accounts
      payable
                                    
                                    $
                                    1,375,292
                                    
                                    
                                    $
                                    1,324,287Other
      current liabilities
                                    
                                    
                                    82,326
                                    
                                    
                                    
                                    162,580Notes
      payable, current
                                    
                                    
                                    101,684
                                    
                                    
                                    
                                    -Total
      current liabilities
                                    
                                    
                                    1,559,302
                                    
                                    
                                    
                                    1,486,867Deferred
      revenue
                                    
                                    
                                    856,237
                                    
                                    
                                    
                                    751,096Derivative
      liabilities
                                    
                                    
                                    1,616,788
                                    
                                    
                                    
                                    -Notes
      payable, long term
                                    
                                    
                                    649,549
                                    
                                    
                                    
                                    -Total
      liabilities
                                    
                                    
                                    4,681,876
                                    
                                    
                                    
                                    2,237,963Stockholders'
      Equity:Convertible
      preferred stock-12,500,000 shares authorized.    Senior
      preferred – 1,000,000 shares designated
                                      .    0
      issued and outstanding (137,500 in 2008)
                                    
                                    
                                    -
                                    
                                    
                                    
                                    1,656,735.   
      Series A preferred – 2,000,000 shares designated
                                      .    630,897
      shares issued and outstanding (718,997 in 2008)
                                    
                                    
                                    9,069,871
                                    
                                    
                                    
                                    9,440,359Common
      stock-100,000,000 shares authorized $0.0001 par value 75,767,818
      issued & outstanding (26,417,437 in 2008)
                                    
                                    
                                    7,576
                                    
                                    
                                    
                                    2,641Additional
      paid in capital
                                    
                                    
                                    76,372,520
                                    
                                    
                                    
                                    46,184,287Deficit
      accumulated during development stage
                                    
                                    
                                    (60,859,150
                                    )
                                    
                                    
                                    (49,111,062
                                    )Cumulative
      foreign currency translation adjustment
                                    
                                    
                                    (251,973
                                    )
                                    
                                    
                                    (249,269
                                    )Total
      Stockholders' Equity
                                    
                                    
                                    24,338,844
                                    
                                    
                                    
                                    7,923,691TOTAL
      LIABILITIES & STOCKHOLDERS' EQUITY
                                    
                                    $
                                    29,020,720
                                    
                                    
                                    $
                                    10,161,654





The
accompanying notes are an integral part of these condensed consolidated
financial statements


37


AXION
POWER INTERNATIONAL, INC


CONSOLIDATED
STATEMENTS OF OPERATIONS


(A
Development Stage Company)





Years Ended
                          
                          
                          Inception12/31/2009
                          
                          
                          (9/18/2003) to2009
                          
                          
                          2008
                          
                          
                          12/31/2009Revenues
                          
                          $
                          1,843,592
                          
                          
                          $
                          679,559
                          
                          
                          $
                          3,332,439Cost
      of goods sold
                          
                          
                          1,693,714
                          
                          
                          
                          368,922
                          
                          
                          
                          2,903,976Gross
      profit (loss)
                          
                          
                          149,878
                          
                          
                          
                          310,637
                          
                          
                          
                          428,463ExpensesResearch
      & development
                          
                          
                          4,426,956
                          
                          
                          
                          3,960,909
                          
                          
                          
                          18,378,626Selling,
      general & administrative
                          
                          
                          3,837,526
                          
                          
                          
                          4,846,189
                          
                          
                          
                          21,852,907Interest
      expense - related party
                          
                          
                          186,063
                          
                          
                          
                          1,137,436
                          
                          
                          
                          2,337,986Impairment
      of assets
                          
                          
                          -
                          
                          
                          
                          -
                          
                          
                          
                          1,391,485Derivative
      revaluation
                          
                          
                          6,292,401
                          
                          
                          
                          (2,844
                          )
                          
                          
                          (222,267
                          )Mega
      C Trust Share Augmentation (Return)
                          
                          
                          -
                          
                          
                          
                          -
                          
                          
                          
                          400,000Interest
      & other income, net
                          
                          
                          (14,641
                          )
                          
                          
                          (57,224
                          )
                          
                          
                          (548,793
                          )Net
      loss before income taxes
                          
                          
                          (14,578,427
                          )
                          
                          
                          (9,573,829
                          )
                          
                          
                          (43,161,481
                          )Income
      Taxes
                          
                          
                          -
                          
                          
                          
                          (79,170
                          )
                          
                          
                          4,300Deficit
      accumulated during development stage
                          
                          
                          (14,578,427
                          )
                          
                          
                          (9,494,659
                          )
                          
                          
                          (43,165,781
                          )Less
      preferred stock dividends and beneficial conversion
feature
                          
                          
                          (4,046,836
                          )
                          
                          
                          (1,117,699
                          )
                          
                          
                          (17,693,369
                          )Net
      loss applicable to common shareholders
                          
                          $
                          (18,625,263
                          )
                          
                          $
                          (10,612,358
                          )
                          
                          $
                          (60,859,150
                          )Basic
      and diluted net loss per share
                          
                          $
                          (0.67
                          )
                          
                          $
                          (0.46
                          )
                          
                          $
                          (3.45
                          )Weighted
      average common shares outstanding
                          
                          
                          27,619,839
                          
                          
                          
                          22,826,187
                          
                          
                          
                          17,650,362





The
accompanying notes are an integral part of these condensed consolidated
financial statements


38


AXION
POWER INTERNATIONAL, INC


CONSOLIDATED
STATEMENTS OF CASH FLOWS


(A
Development Stage Company)





Years Ended
                            
                            
                            InceptionDecember 31,
                            
                            
                            (9/18/2003) 
      to2009
                            
                            
                            2008
                            
                            
                            12/31/2009Cash
      Flows from Operating Activities:Deficit
      accumulated during development stage
                            
                            $
                            (14,578,427
                            )
                            
                            $
                            (9,494,659
                            )
                            
                            $
                            (43,165,781
                            )Adjustments
      required to reconcile deficit accumulated during development stage to
      cash flows used by operating activitiesDepreciation
                            
                            
                            441,005
                            
                            
                            
                            189,804
                            
                            
                            
                            984,291Non-cash
      interest expense
                            
                            
                            139,668
                            
                            
                            
                            868,211
                            
                            
                            
                            1,970,251Impairment
      of assets
                            
                            
                            -
                            
                            
                            
                            -
                            
                            
                            
                            1,391,486Derivative
      revaluations
                            
                            
                            6,292,401
                            
                            
                            
                            (2,844
                            )
                            
                            
                            (222,267
                            )Mega
      C Trust Share Augmentation (Return)
                            
                            
                            -
                            
                            
                            
                            -
                            
                            
                            
                            400,000Share
      based compensation expense
                            
                            
                            986,982
                            
                            
                            
                            861,705
                            
                            
                            
                            5,337,481Changes
      in Operating Assets & LiabilitiesAccounts
      receivable
                            
                            
                            (66,280
                            )
                            
                            
                            5,612
                            
                            
                            
                            (201,184
                            )Other
      receivables
                            
                            
                            (143,723
                            )
                            
                            
                            277,345
                            
                            
                            
                            (186,219
                            )Prepaid
      expenses
                            
                            
                            (998
                            )
                            
                            
                            3,113
                            
                            
                            
                            (77,399
                            )Inventory
                            
                            
                            261,423
                            
                            
                            
                            (893,879
                            )
                            
                            
                            (1,008,091
                            )Accounts
      payable
                            
                            
                            51,005
                            
                            
                            
                            (249,149
                            )
                            
                            
                            3,029,936Other
      current liabilities
                            
                            
                            (80,254
                            )
                            
                            
                            (421,009
                            )
                            
                            
                            103,458Liability
      to issue equity instruments
                            
                            
                            -
                            
                            
                            
                            -
                            
                            
                            
                            178,419Deferred
      revenue and other
                            
                            
                            105,151
                            
                            
                            
                            (2,370
                            )
                            
                            
                            943,726Net
      cash used by operating activities
                            
                            
                            (6,592,047
                            )
                            
                            
                            (8,858,120
                            )
                            
                            
                            (30,521,893
                            )Cash
      Flows from Investing ActivitiesShort
      term investments
                            
                            
                            2,193,920
                            
                            
                            
                            (2,193,920
                            )
                            
                            
                            -Other
      receivables, non-current
                            
                            
                            (6,213
                            )
                            
                            
                            (28,388
                            )
                            
                            
                            (1,251,617
                            )Purchase
      of property & equipment
                            
                            
                            (1,382,902
                            )
                            
                            
                            (1,432,213
                            )
                            
                            
                            (5,197,082
                            )Investment
      in intangible assets
                            
                            
                            -
                            
                            
                            
                            -
                            
                            
                            
                            (167,888
                            )Net
      cash provided (used) by investing activities
                            
                            
                            804,805
                            
                            
                            
                            (3,654,521
                            )
                            
                            
                            (6,616,587
                            )Cash
      Flow from Financing ActivitiesProceeds
      from related party debt, net
                            
                            
                            265,687
                            
                            
                            
                            (1,483,485
                            )
                            
                            
                            5,445,458Proceeds
      from notes payable, net
                            
                            
                            751,234
                            
                            
                            
                            -
                            
                            
                            
                            751,234Proceeds
      from sale of common stock; net of costs
                            
                            
                            24,928,323
                            
                            
                            
                            16,468,500
                            
                            
                            
                            45,114,228Proceeds
      from exercise of warrants
                            
                            
                            -
                            
                            
                            
                            -
                            
                            
                            
                            1,655,500Proceeds
      from sale of preferred stock, net of costs
                            
                            
                            -
                            
                            
                            
                            -
                            
                            
                            
                            7,472,181Net
      cash provided by financing activities
                            
                            
                            25,945,244
                            
                            
                            
                            14,985,015
                            
                            
                            
                            60,438,601Net
      Change in Cash and Cash Equivalents
                            
                            
                            20,158,002
                            
                            
                            
                            2,472,374
                            
                            
                            
                            23,300,121Effect
      of Exchange Rate on Cash
                            
                            
                            (2,704
                            )
                            
                            
                            (19,450
                            )
                            
                            
                            (20,655
                            )Cash
      and Cash Equivalents - Beginning
                            
                            
                            3,124,168
                            
                            
                            
                            671,244
                            
                            
                            
                            -Cash
      and Cash Equivalents - Ending
                            
                            $
                            23,279,466
                            
                            
                            $
                            3,124,168
                            
                            
                            $
                            23,279,466





The
accompanying notes are an integral part of these condensed consolidated
financial statements


39




Axion
Power International, Inc.
 Consolidated
Statement of Stockholders' Equity (Deficit)
 For
Periods Ended December 31, 2003 through 2009
 (A
Development Stage Company)





Preferred
                                                  
                                                  
                                                  Common
                                                  
                                                  
                                                  Deficit
                                                    Accumulated
                                                    During
                                                  
                                                  
                                                  Other
                                                    Comprehensive
                                                    Income
                                                    Cumulative
                                                  
                                                  
                                                  Total
                                                    Stockholders'Shares
                                                  
                                                  
                                                  Senior
                                                    Preferred
                                                  
                                                  
                                                  Series A
                                                    Preferred
                                                  
                                                  
                                                  Shares
                                                  
                                                  
                                                  Common
                                                    Stock Amount
                                                  
                                                  
                                                  Additional Paid-
                                                    In Capital
                                                  
                                                  
                                                  Subscriptions
                                                    Receivable
                                                  
                                                  
                                                  Development
                                                    Stage
                                                  
                                                  
                                                  Translation
                                                    Adjustments
                                                  
                                                  
                                                  Equity
                                                    (Deficit)Inception September 18,
      2003
                                                  
                                                  
                                                  0
                                                  
                                                  
                                                  $
                                                  0
                                                  
                                                  
                                                  $
                                                  0
                                                  
                                                  
                                                  
                                                  0
                                                  
                                                  
                                                  $
                                                  0
                                                  
                                                  
                                                  $
                                                  0
                                                  
                                                  
                                                  $
                                                  0
                                                  
                                                  
                                                  $
                                                  0
                                                  
                                                  
                                                  $
                                                  0
                                                  
                                                  
                                                  $
                                                  0Shares to founders upon
      formulation of APC
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  1,360,000
                                                  
                                                  
                                                  
                                                  137
                                                  
                                                  
                                                  
                                                  (137
                                                  )
                                                  
                                                  
                                                  0
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  0Stock based
      compensation
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  170,000
                                                  
                                                  
                                                  
                                                  17
                                                  
                                                  
                                                  
                                                  48,936
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  48,953Conversion of debt to
      equity
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  1,108,335
                                                  
                                                  
                                                  
                                                  111
                                                  
                                                  
                                                  
                                                  1,449,889
                                                  
                                                  
                                                  
                                                  (350,000
                                                  )
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  1,100,001Debt Discount from convertible
      debt
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  86,402
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  86,402Unamortized discount on
      convertible debt
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  (77,188
                                                  )
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  (77,188
                                                  )Fair value of options issued as
      loan inducements
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  15,574
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  15,574Recapitalization:- Shares issued to Mega-C
      trust
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  6,147,483
                                                  
                                                  
                                                  
                                                  615
                                                  
                                                  
                                                  
                                                  (615
                                                  )
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  0- Equity acquired in
      recapitalization
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  1,875,000
                                                  
                                                  
                                                  
                                                  188
                                                  
                                                  
                                                  
                                                  (188
                                                  )
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  0Net Loss December 31,
      2003
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  (3,097,030
                                                  )
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  (3,097,030
                                                  )Other Comprehensive income
      (loss):Foreign Currency Translation
      Adjustment
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  (56,547
                                                  )
                                                  
                                                  
                                                  (56,547
                                                  )Comprehensive
      loss
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  (3,153,577
                                                  )Balance at December 31,
      2003
                                                  
                                                  
                                                  0
                                                  
                                                  
                                                  $
                                                  0
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  10,660,818
                                                  
                                                  
                                                  $
                                                  1,067
                                                  
                                                  
                                                  $
                                                  1,522,674
                                                  
                                                  
                                                  $
                                                  (350,000
                                                  )
                                                  
                                                  $
                                                  (3,097,030
                                                  )
                                                  
                                                  $
                                                  (56,547
                                                  )
                                                  
                                                  $
                                                  (1,979,836
                                                  )Shares issued to
      founders
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  445,000
                                                  
                                                  
                                                  
                                                  45
                                                  
                                                  
                                                  
                                                  (45
                                                  )
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  0Augmentation shares issued to
      Mega-C trust
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  180,000
                                                  
                                                  
                                                  
                                                  18
                                                  
                                                  
                                                  
                                                  (18
                                                  )
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  0Conversion of
      debt
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  283,333
                                                  
                                                  
                                                  
                                                  28
                                                  
                                                  
                                                  
                                                  451,813
                                                  
                                                  
                                                  
                                                  350,000
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  801,841Warrants in consideration for
      technology purchased
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  563,872
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  563,872Common stock offering - net of
      cost
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  823,800
                                                  
                                                  
                                                  
                                                  81
                                                  
                                                  
                                                  
                                                  1,607,053
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  1,607,134Proceeds from exercise of
      warrants
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  475,200
                                                  
                                                  
                                                  
                                                  48
                                                  
                                                  
                                                  
                                                  867,972
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  868,020Liability converted as partial
      prepayment on options
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  306,000
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  306,000Stock based
      compensation
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  45,000
                                                  
                                                  
                                                  
                                                  5
                                                  
                                                  
                                                  
                                                  191,738
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  191,742Fraction Shares Issued Upon
      Reverse Spilt
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  48,782
                                                  
                                                  
                                                  
                                                  5
                                                  
                                                  
                                                  
                                                  (5
                                                  )
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  0Net Loss December 31,
      2004
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  (3,653,637
                                                  )
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  (3,653,637
                                                  )Other Comprehensive income
      (loss):Foreign Currency Translation
      Adjustment
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  (74,245
                                                  )
                                                  
                                                  
                                                  (74,245
                                                  )Comprehensive
      loss
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  (3,727,882
                                                  )Balance at December 31,
      2004
                                                  
                                                  
                                                  0
                                                  
                                                  
                                                  $
                                                  0
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  12,961,933
                                                  
                                                  
                                                  $
                                                  1,296
                                                  
                                                  
                                                  $
                                                  5,511,054
                                                  
                                                  
                                                  $
                                                  0
                                                  
                                                  
                                                  $
                                                  (6,750,667
                                                  )
                                                  
                                                  $
                                                  (130,792
                                                  )
                                                  
                                                  $
                                                  (1,369,109
                                                  )Proceeds From Exercise of Warrants
      & Options
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  853,665
                                                  
                                                  
                                                  
                                                  85
                                                  
                                                  
                                                  
                                                  1,283,395
                                                  
                                                  
                                                  
                                                  (496,000
                                                  )
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  787,480Common Stock Offering
      Proceeds
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  600,000
                                                  
                                                  
                                                  
                                                  60
                                                  
                                                  
                                                  
                                                  1,171,310
                                                  
                                                  
                                                  
                                                  (200,000
                                                  )
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  971,370Preferred Stock Offering
      proceeds
                                                  
                                                  
                                                  385,000
                                                  
                                                  
                                                  
                                                  3,754,110
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  (25,000
                                                  )
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  3,729,110Conversion of preferred to
      common
                                                  
                                                  
                                                  (245,000
                                                  )
                                                  
                                                  
                                                  (2,475,407
                                                  )
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  1,470,000
                                                  
                                                  
                                                  
                                                  147
                                                  
                                                  
                                                  
                                                  2,475,260
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  0Stock issued for
      services
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  500,000
                                                  
                                                  
                                                  
                                                  50
                                                  
                                                  
                                                  
                                                  1,524,950
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  1,525,000Fair Value of Options for
      Non-Employee Services
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  237,568
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  237,568Employee incentive share
      grants
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  219,000
                                                  
                                                  
                                                  
                                                  22
                                                  
                                                  
                                                  
                                                  647,480
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  647,502Impact of beneficial conversion
      feature
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  3,099,156
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  (3,099,156
                                                  )
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  0Preferred Stock
      Dividends
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  176,194
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  (176,194
                                                  )
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  0Net Loss December 31,
      2005
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  (6,325,113
                                                  )
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  (6,325,113
                                                  )Other
      Comprehensive income (loss):Foreign
      Currency Translation Adjustment
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  (24,780
                                                  )
                                                  
                                                  
                                                  (24,780
                                                  )Comprehensive
      loss
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  (6,349,893
                                                  )Balance
      at December 31, 2005
                                                  
                                                  
                                                  140,000
                                                  
                                                  
                                                  $
                                                  1,454,897
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  16,604,598
                                                  
                                                  
                                                  $
                                                  1,661
                                                  
                                                  
                                                  $
                                                  15,950,173
                                                  
                                                  
                                                  $
                                                  (721,000
                                                  )
                                                  
                                                  $
                                                  (16,351,130
                                                  )
                                                  
                                                  $
                                                  (155,572
                                                  )
                                                  
                                                  $
                                                  179,028Preferred
      Series A Proceeds
                                                  
                                                  
                                                  782,997
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  7,571,768
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  7,571,768Preferred
      - Dividends
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  119,092
                                                  
                                                  
                                                  
                                                  103,101
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  (222,193
                                                  )
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  0Senior
      Preferred Cancellation
                                                  
                                                  
                                                  (2,500
                                                  )
                                                  
                                                  
                                                  (25,000
                                                  )
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  25,000
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  0Common
      Stock Offering Proceeds
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  80,000
                                                  
                                                  
                                                  
                                                  8
                                                  
                                                  
                                                  
                                                  199,992
                                                  
                                                  
                                                  
                                                  696,000
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  896,000Proceeds
      from exercise of warrants
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  56,700
                                                  
                                                  
                                                  
                                                  6
                                                  
                                                  
                                                  
                                                  113,394
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  113,400Employee
      incentive share grants
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  6,000
                                                  
                                                  
                                                  
                                                  1
                                                  
                                                  
                                                  
                                                  23,999
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  24,000Augmentation
      shares issued to Mega-C trust
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  (500,000
                                                  )
                                                  
                                                  
                                                  (50
                                                  )
                                                  
                                                  
                                                  (1,124,950
                                                  )
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  (1,125,000
                                                  )Stock
      based compensation
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  1,241,231
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  1,241,231Fair
      value of warrants with related party debt
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  885,126
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  885,126Modification
      of preexisting warrants
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  392,811
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  392,811Fair
      value warrants issued for services
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  86,848
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  86,848Beneficial
      conversion feature on related party debt
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  95,752
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  95,752Beneficial
      conversion feature on Preferred Stock
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  (6,096,634
                                                  )
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  6,709,970
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  (613,336
                                                  )
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  0Net
      Loss December 31, 2006
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  (7,027,963
                                                  )
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  (7,027,963
                                                  )Other
      Comprehensive income (loss):
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  0Foreign
      Currency Translation Adjustment
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  (95,387
                                                  )
                                                  
                                                  
                                                  (95,387
                                                  )Comprehensive
      loss
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  (7,123,350
                                                  )Balance
      at December 31, 2006
                                                  
                                                  
                                                  920,497
                                                  
                                                  
                                                  $
                                                  1,548,989
                                                  
                                                  
                                                  $
                                                  1,578,235
                                                  
                                                  
                                                  
                                                  16,247,298
                                                  
                                                  
                                                  
                                                  1,625
                                                  
                                                  
                                                  
                                                  24,574,346
                                                  
                                                  
                                                  
                                                  -
                                                  
                                                  
                                                  
                                                  (24,214,622
                                                  )
                                                  
                                                  
                                                  (250,959
                                                  )
                                                  
                                                  $
                                                  3,237,614Preferred
      Series A Proceeds
                                                  
                                                  
                                                  40,000
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  337,270
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  337,270Preferred
      - Dividends
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  130,566
                                                  
                                                  
                                                  
                                                  1,790,755
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  (1,921,321
                                                  )
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  0Employee
      incentive share grants
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  1,000
                                                  
                                                  
                                                  
                                                  0
                                                  
                                                  
                                                  
                                                  315,950
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  315,950Stock
      based compensation
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  215,393
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  215,393Fair
      value of warrants with related party debt
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  98,463
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  98,463Modification
      of preexisting warrants
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  (164,179
                                                  )
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  164,179
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  0Beneficial
      conversion feature on Preferred Stock
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  6,096,634
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  400,000
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  (6,496,634
                                                  )
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  0Net
      Loss December 31, 2007
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  (5,866,127
                                                  )
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  (5,866,127
                                                  )Other
      Comprehensive income (loss):
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  0Foreign
      Currency Translation Adjustment
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  21,136
                                                  
                                                  
                                                  
                                                  21,136Comprehensive
      loss
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  (5,844,991
                                                  )Balance
      at December 31, 2007
                                                  
                                                  
                                                  960,497
                                                  
                                                  
                                                  $
                                                  1,515,376
                                                  
                                                  
                                                  $
                                                  9,802,894
                                                  
                                                  
                                                  
                                                  16,248,298
                                                  
                                                  
                                                  $
                                                  1,625
                                                  
                                                  
                                                  $
                                                  25,768,331
                                                  
                                                  
                                                  $
                                                  0
                                                  
                                                  
                                                  $
                                                  (38,498,704
                                                  )
                                                  
                                                  $
                                                  (229,823
                                                  )
                                                  
                                                  $
                                                  (1,640,301
                                                  )Preferred  -
      Dividends
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  141,359
                                                  
                                                  
                                                  
                                                  976,340
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  (1,117,699
                                                  )
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  0Preferred
      Converted into Common Stock
                                                  
                                                  
                                                  (104,000
                                                  )
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  (1,338,875
                                                  )
                                                  
                                                  
                                                  1,071,099
                                                  
                                                  
                                                  
                                                  107
                                                  
                                                  
                                                  
                                                  1,338,768
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  0Bridge
      Loans Converted into Common Stock
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  514,611
                                                  
                                                  
                                                  
                                                  51
                                                  
                                                  
                                                  
                                                  1,080,633
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  1,080,684Proceeds
      from Quercus Trust-net of costs
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  8,571,429
                                                  
                                                  
                                                  
                                                  857
                                                  
                                                  
                                                  
                                                  15,273,908
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  15,274,765Employee
      incentive share grants
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  12,000
                                                  
                                                  
                                                  
                                                  1
                                                  
                                                  
                                                  
                                                  435,725
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  435,726Stock
      based compensation
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  425,979
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  425,979Fair
      value of warrants with related party debt
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  667,208
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  667,208Fair
      value warrants issued for services
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  1,193,735
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  1,193,735Net
      Loss December 31, 2008
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  (9,494,659
                                                  )
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  (9,494,659
                                                  )Other
      Comprehensive income (loss):
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  0Foreign
      Currency Translation Adjustment
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  (19,446
                                                  )
                                                  
                                                  
                                                  (19,446
                                                  )Comprehensive
      loss
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  (9,514,105
                                                  )Balance
      at December 31, 2008
                                                  
                                                  
                                                  856,497
                                                  
                                                  
                                                  $
                                                  1,656,735
                                                  
                                                  
                                                  $
                                                  9,440,359
                                                  
                                                  
                                                  
                                                  26,417,437
                                                  
                                                  
                                                  $
                                                  2,641
                                                  
                                                  
                                                  $
                                                  46,184,287
                                                  
                                                  
                                                  $
                                                  0
                                                  
                                                  
                                                  $
                                                  (49,111,062
                                                  )
                                                  
                                                  $
                                                  (249,269
                                                  )
                                                  
                                                  $
                                                  7,923,691Preferred  -
      Dividends
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  126,497
                                                  
                                                  
                                                  
                                                  909,819
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  (1,036,316
                                                  )
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  0Preferred
      Converted into Common Stock
                                                  
                                                  
                                                  (88,100
                                                  )
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  (1,280,308
                                                  )
                                                  
                                                  
                                                  1,149,201
                                                  
                                                  
                                                  
                                                  114
                                                  
                                                  
                                                  
                                                  1,280,194
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  0Senior
      Preferred Converted into Common Stock
                                                  
                                                  
                                                  (137,500
                                                  )
                                                  
                                                  
                                                  (1,982,315
                                                  )
                                                  
                                                  
                                                  -
                                                  
                                                  
                                                  
                                                  1,390,944
                                                  
                                                  
                                                  
                                                  139
                                                  
                                                  
                                                  
                                                  1,982,176
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  0Reclassification
      of warrants to APIC upon conversion of Senior Preferred
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  164,179
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  (164,179
                                                  )
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  0Reclassification
      of Preferred Stock offering costs to APIC  upon conversion into
      Common
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  34,904
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  (34,904
                                                  )
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  0Bridge
      Loans Converted into Common Stock
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  651,520
                                                  
                                                  
                                                  
                                                  65
                                                  
                                                  
                                                  
                                                  371,301
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  371,366Proceeds
      from common stock offering-net of costs
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  45,825,716
                                                  
                                                  
                                                  
                                                  4,583
                                                  
                                                  
                                                  
                                                  24,923,740
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  24,928,323Employee
      incentive share grants
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  333,000
                                                  
                                                  
                                                  
                                                  33
                                                  
                                                  
                                                  
                                                  500,451
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  500,484Stock
      based compensation
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  441,120
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  441,120Fair
      value of warrants with related party debt
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  34,002
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  34,002Fair
      value warrants issued in lieu of liquidated damages
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  45,380
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  45,380Cumulative
      adjustments from adoption of ASC 815 as of January 1, 2009
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  (6,877,176
                                                  )
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  6,877,176
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  0Reclassification
      of warrants to derivative liabilities
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  (2,450,542
                                                  )
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  (2,450,542
                                                  )Extinguishment
      of derivative liabilities
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  7,126,155
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  7,126,155Beneficial
      conversion feature  on Preferred Stock
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  3,010,517
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  (3,010,517
                                                  )
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  0Net
      Loss December 31, 2009
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  (14,578,427
                                                  )
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  (14,578,427
                                                  )Other
      Comprehensive income (loss):
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  0Foreign
      Currency Translation Adjustment
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  (2,704
                                                  )
                                                  
                                                  
                                                  (2,704
                                                  )Comprehensive loss
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  
                                                  (14,581,131
                                                  )Balance at December 31,
2009
                                                  
                                                  
                                                  630,897
                                                  
                                                  
                                                  $
                                                  (0
                                                  )
                                                  
                                                  $
                                                  9,069,871
                                                  
                                                  
                                                  
                                                  75,767,818
                                                  
                                                  
                                                  $
                                                  7,576
                                                  
                                                  
                                                  $
                                                  76,372,520
                                                  
                                                  
                                                  $
                                                  0
                                                  
                                                  
                                                  $
                                                  (60,859,150
                                                  )
                                                  
                                                  $
                                                  (251,973
                                                  )
                                                  
                                                  $
                                                  24,338,844




The
Accompanying Notes are an Integral Part of the Financial Statements




40


AXION
POWER INTERNATIONAL, INC.




NOTES
TO CONSOLIDATED FINANCIAL STATEMENTS




(A
DEVELOPMENT STAGE COMPANY)




Note 1 — Organization and Operations




These
consolidated financial statements of Axion Power International, Inc., a Delaware
corporation (API), include the operations of its wholly owned subsidiaries;
Axion Power Battery Manufacturing, Inc (APB), Axion Power Corporation, a
Canadian Federal corporation (“APC”), and C & T Co. Inc., an Ontario
corporation (“C&T”) (collectively, the “Company”).




Axion is
developing innovative battery/energy storage device technology. The Company
continues its research and development and has entered the testing phase of its
unique battery designs. Development activities, testing and prototype
manufacturing is performed at the Company’s manufacturing facilities. The
Company also manufactures on a limited basis specialty and traditional flooded
batteries for resale.




Note
2 —Accounting Policies




Use of
Estimates: The
preparation of financial statements in conformity with accounting principles
generally accepted in the United States requires management to make estimates
and assumptions that affect reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statement and the reported amounts of revenues and expenses during the reporting
period. Actual results could differ from the estimates.




Principles of
Consolidation:The condensed
consolidated financial statements include the accounts of the Company, and its
wholly owned subsidiaries, Axion Power Battery Manufacturing, Inc., APC and
C&T. All significant inter-company balances and transactions have been
eliminated in consolidation




Basis of
Presentation:The
financial statements have been presented in a “development stage” format in
accordance with the provisions of Statement of Financial Accounting Standards
(FASB) ASC 915, “Development
Stage Entities”. Since inception, the Company’s primary activities have
been raising capital, obtaining financing, developing Axion’s energy storage
technology and testing its proposed products.




Segment
Reporting:Management has determined that the Company is organized,
managed and internally reported as one business segment. Segments are determined
based on differences in products, internal reporting and how operational
decisions are made.




Foreign Currency
Translation: The accounts of APC
and C&T are measured using the Canadian dollar as the functional currency
for all the periods presented in the financial statements. The translation from
Canadian dollars to U.S. dollars is performed for the balance sheet accounts
using current exchange rates in effect at each of the balance sheet dates, and
for the revenue and expense accounts using the average rate in effect during the
periods. The resulting translation adjustments are recorded as a component of
accumulated other comprehensive income (loss) within stockholders’ equity. Gains
or losses resulting from transactions denominated in currencies other than the
functional currency are included in the results of operations as incurred. The
gains or losses arising from the inter-company loan denominated in U.S. dollars
are directly reflected in other comprehensive income, as the amounts are not
expected to be repaid in the foreseeable future.




Comprehensive
Income:The Company follows FASB ASC 220, “Comprehensive Income.”
Comprehensive income is the change in equity of a business enterprise during a
reporting period from transactions and other events and circumstances from
non-owner sources. In addition to the Company’s net loss, the change in equity
components under comprehensive income include the foreign currency translation
adjustment.





41





Fair Value of
Financial Instruments:FASB ASC 825, "Financial Instruments,"
requires disclosure of fair value information about certain financial
instruments, including, but not limited to, cash and cash equivalents, accounts
receivable, refundable tax credits, prepaid expenses, accounts payable, accrued
expenses, notes payable to related parties and convertible debt-related
securities. Fair value estimates discussed herein are based upon certain market
assumptions and pertinent information available to management as of December 31,
2009 and 2008. The carrying value of the balance sheet financial instruments
included in the Company’s consolidated financial statements approximated their
fair values.




On
January 1, 2008, the Company adopted FASB ASC 820, “Fair Value Measurements
and Disclosures ” (ASC 820) which defines fair value, establishes a framework
for measuring fair value, and requires additional disclosures about fair value
measurements. The criterion that is set forth in ASC 820 is applicable to fair
value measurement where it is permitted or required under other accounting
pronouncements.





ASC 820
defines fair value as the exit price, which is the price that would be received
to sell an asset or paid to transfer a liability in an orderly transaction
between market participants at the measurement date. The fair value measurement
is based on inputs of observable and unobservable market data that a market
participant would use in pricing the asset or liability. The use of observable
inputs is maximized where available and the use of unobservable inputs is
minimized for fair value measurement. As a means to illustrate the inputs used,
ASC 820 establishes a three-tier fair value hierarchy that prioritizes inputs to
valuation techniques used for fair value measurement.





·
            Level 1 consists of observable
      market data in an active market for identical assets or
      liabilities.


·
            Level 2 consists of observable
      market data, other than that included in Level 1, that is either directly
      or indirectly observable.


·
            Level 3 consists of unobservable
      market data. The input may reflect the assumptions of the Company of what
      a market participant would use in pricing an asset or liability. If there
      is little available market data, then the Company’s own assumptions are
      the best available
information.





In the
case of multiple inputs being used in a fair value measurement, the lowest level
input that is significant to the fair value measurement represents the level in
the fair value hierarchy in which the fair value measurement is
reported.




Cash and Cash
Equivalents:For financial statement
presentation purposes, the Company considers those short-term, highly liquid
investments with original maturities of three months or less to be cash or cash
equivalents.




Concentration of
Credit Risk:The Company’s cash and cash equivalents are on deposit with
banks. Only a portion of the cash and cash equivalents would be covered by
deposit insurance and the uninsured balances are substantially greater than the
insured amounts. Although cash and cash equivalent balances exceed insured
deposit amounts, management does not anticipate non-performance by the
banks.




Accounts
Receivable:The Company records its accounts receivable at the original
invoice amount less an allowance for doubtful accounts. An account receivable is
considered to be past due if any portion of the receivable balance is
outstanding beyond its scheduled due date. On a quarterly basis, the Company
evaluates its accounts receivable and establishes an allowance for doubtful
accounts for specific accounts that are considered at risk as to collection.
When a customer account is considered to be uncollectible it is written off
against the related allowance. No interest is accrued on past due accounts
receivable.




Inventory:
Inventory is recorded at the lower of cost or market value, and adjusted as
appropriate for decreases in valuation and obsolescence. Adjustments to the
valuation and obsolescence reserves are made after analyzing market conditions,
current and projected sales activity, inventory costs and inventory balances to
determine appropriate reserve levels. As of December 31, 2009, $118,257 in
inventory valuation reserves was established. Cost is determined using the
first-in first-out (FIFO) method. Many components and raw materials we purchase
have minimum order quantities. As of December 31, 2009, inventory costs of
$1,008,092 consisted of $432,385 of finished goods, $212,844 of work-in-process
and $364,557 of raw materials. As of December 31, 2008, inventory costs of
$1,269,515 consisted of $353,657 of finished goods, $343,776 of work-in-process
and $572,082 of raw materials.





Property and
Equipment:Property and equipment
are recorded at cost. Depreciation is computed using the straight line method
over the estimated useful lives of the assets, ranging from 3 to 22
years.




42




Expenditures
for renewals and betterments are capitalized. Expenditures for minor items,
repairs and maintenance are charged to operations as incurred. Gain or loss upon
sale or retirement due to obsolescence is reflected in the operating results in
the period the event takes place.





Impairment or
Disposal of Long-Lived Assets:The Company adopted the provisions of FASB
ASC 360-10-15-3, “Impairment
or Disposal of Long-lived Assets.” This standard requires, among other
things, that long-lived assets be reviewed for potential impairment whenever
events or circumstances indicate that the carrying amounts may not be
recoverable. The assessment of possible impairment is based on the ability to
recover the carrying value of the asset from the expected future pre-tax cash
flows (undiscounted and without interest charges) of the related operations. If
these expected cash flows are less than the carrying value of such asset, an
impairment loss is recognized for the difference between estimated fair value
and carrying value. The primary measure of fair value is based on discounted
cash flows. The measurement of impairment requires management to make estimates
of these cash flows related to long-lived assets, as well as other fair value
determinations. There were no impairments recognized for years ended December
31, 2009 and 2008.





Derivative
Financial Instruments:The Company’s
objectives in using derivative financial instruments are to obtain the lowest
cash cost-source of funds. Derivative liabilities are recognized in the
consolidated balance sheets at fair value based on the criteria specified in
FASB ASC topic 815-40 "Derivatives and Hedging – Contracts
in Entity’s own Equity". The estimated fair value of the derivative
liabilities is calculated using the Black-Scholes-Merton method where applicable
and such estimates are revalued at each balance sheet date, with changes in
value recorded as other income or expense in the consolidated statement of
operations. As a result of the Company’s adoption of ASC topic 815-40, effective
January 1, 2009 some of the Company’s warrants are now accounted for as
derivatives.





On
January 1, 2009 the Company adopted ASC topic 815-40, and as a result the
10,000,000 outstanding warrants issued to the Quercus Trust and another
1,485,714 warrants issued as payment of services related to this offering, both
containing exercise price down round reset provisions that were previously
classified in equity, were reclassified to derivative liabilities. As of January
1, 2009, these warrants were no longer deemed to be indexed to the Company’s own
stock. The fair value of these derivative liabilities as of January 1, 2009 was
$2,450,542 and was reclassified from additional paid-in capital. The significant
assumptions used in the January 1, 2009 valuation were: the exercise price of
$2.60; the market value of the Company’s common stock on January 1, 2009, $1.15;
expected volatility of 49.44%; risk free interest rate of 1.28%; and a remaining
contract term of 4.27 years.





On
September 22, 2009, the exercise price for 10,000,000 warrants issued to The
Quercus Trust was reset from $2.60 to $0.75.  On December 15, 2009 the
1,485,714 warrants issued in payment of services related to Quercus offering,
were reset from $2.60 to $0.57.





On
December 22, 2009 the derivative liability relating to the 10,000,000 Quercus
Trust warrants was extinguished, and the liability valued on that date of
$7,126,155 was reclassified back into Equity.  The significant
assumptions used in the December 22, 2009 valuation were: the exercise price of
$0.75; the market value of the Company’s common stock on December 22, 2009,
$1.30; expected volatility of 61.5%; risk free interest rate of 1.22%; and a
remaining contract term of 2.5 years.





The fair
value of these derivative liabilities as of December 31, 2009 was $1,616,788.
The Black-Scholes-Merton stock option valuation model was used to determine the
fair values. The significant assumptions used in the December 31, 2009 valuation
were: the exercise price of $0.57; the market value of the Company’s common
stock on December 31, 2009, $1.56; expected volatility of 56.2%; risk free
interest rate of 1.70%; and a remaining contract term of 3.27
years.  There was no corresponding derivative liability for the year
ended December 31, 2008 as it preceded the date of adoption of ASC
815-40.





The
increase in fair value of the Company’s derivative liabilities resulted in a
loss of $6,292,401 for year ended December 31, 2009 and $(222,267) since
inception. The loss for 2009 includes an increase in the derivative liability in
the amount of $8,257,840 resulting from the reset in the exercise price of
the 11,485,714 warrants previously issued.





Revenue
Recognition: The Company
recognizes revenue when there is persuasive evidence of an agreement, delivery
has occurred or services have been rendered, the sales price to the buyer is
fixed or determinable and collectability is reasonably assured. Evidence of an
agreement and fixed or determinable sales price is predominantly based on a
customer purchase order or other form of written sales order or written
agreement. Sales on account are approved only for credit-worthy customers;
otherwise payment in full is received prior to shipment. Shipping terms are
generally FOB shipping point and revenue is recognized when product is shipped
to the customer. In limited cases, if terms are FOB destination or contingent
upon collection by a prime contractor, then in these cases, revenue is
recognized when the product is delivered to the customer’s delivery site or the
conditions for collection have been fulfilled. The Company records sales net of
discounts and estimated customer allowances and returns. We offer a 90 day free
replacement warranty on some specialty collector car and motorsports products.
Collector car products also carry a four year prorated warranty that begins at
the end of the 90 days.  To date, our warranty exposure on these
products has been minimal. Flooded battery sales do not have standard warranty
provisions and instead are sold at a discount in lieu of
warranty.  There are no other post shipment obligations that may
impact the timing of revenue recognition for the year ending December 31,
2009.


43





Shipping and
Handling Costs: All shipping and handling costs charged to customers are
recorded as Net Sales and all related expenses are included in Cost of Sales.
Shipping and handling costs not billed to customers are included in selling,
general and administrative expense.





Proceeds from
Grants: The Company records proceeds from grants over the period
necessary to match them with the related costs for which such grants are to
compensate. Grants for assets are recorded as deferred revenue and amortized
over the expected life of such asset as a reduction of depreciation expense. As
permitted by IAS 20.29 grants to reimburse current expenditures are deducted
from the related expenses. As permitted by IAS 20.29 “Accounting for Government
Grants”, a grant relating to income may be reported separately as other income
or deducted from the related expenses. The Company records grants as deduction
from related expenses or as other income as follows: (i) grants not deemed
significant by management are considered to be reimbursements for specific
research activities and are recorded as such, and (ii) grants that are
considered material are those activities performed under a contract, typically
with a governmental agency, in which there is required a significant allocation
of Company resources, including personnel and materials, and thus are recorded
as other income.





The
Company recognizes proceeds from grants only when (a) there is reasonable
assurance that the Company has complied with all conditions attached to the
grant, and (b) the grant proceeds will be received. To date proceeds from
grants, other than proceeds for assets, have been direct reimbursements for
costs incurred for research activities on behalf of a trade group that are
deemed not significant and are reported as a reduction of the direct research
costs incurred. To date, other than proceeds for assets, there have not been any
proceeds recognized from grants that are considered significant.





Stock-Based
Compensation: Prior to January 1, 2006, we accounted for stock
option awards in accordance with the recognition and measurement provisions of
former authoritative literature APB 25 and related interpretations, as permitted
by former authoritative literature Statement of Financial Accounting Standard
No. 123, (“SFAS 123”) “Accounting for Stock-Based
Compensation,”. Under APB 25, compensation cost for stock options issued
to employees was measured as the excess, if any, of the fair value of our stock
at the date of grant over the exercise price of the option granted. Compensation
cost was recognized for stock options, if any, ratably over the vesting period.
As permitted by SFAS 123, we reported pro-forma disclosures presenting results
and earnings as if we had used the fair value recognition provisions of SFAS 123
in the Notes to the Condensed Consolidated Financial
Statements.





Effective
January 1, 2006, we adopted the provisions of ASC topic 718 using the modified
prospective transition method. Stock-based compensation related to non-employees
is recognized as compensation expense in the accompanying condensed consolidated
statements of operations and is based on the fair value of the services received
or the fair value of the equity instruments issued, whichever is more readily
determinable. Our accounting policy for equity instruments issued to consultants
and vendors in exchange for goods and services follows the provisions of ASC
505-50 “Equity-Based Payments
to Non-Employees”(formerly EITF 96-18, “Accounting for Equity Instruments
That are Issued to Other Than Employees for Acquiring, or in Conjunction with
Selling, Goods or Services” and EITF 00-18, “Accounting Recognition for Certain
Transactions Involving Equity Instruments granted to Other Than
Employees.”) The measurement date for the fair value of the equity
instruments issued is determined at the earlier of (1) the date at which a
commitment for performance by the consultant or vendor is reached or (2) the
date at which the consultant or vendor’s performance is complete. In the case of
equity instruments issued to consultants, the fair value of the equity
instrument is recognized over the term of the consulting agreement.





Research and
Development:R&D costs are recorded in accordance with FASB ASC topic 730, “Accounting for Research and
Development Costs,” which requires that costs incurred in R&D
activities covering basic scientific research and the application of scientific
advances to the development of new and improved products and their uses be
expensed as incurred. The policy of expensing the costs of R&D activities
relate to (1) in-house work conducted by us, (2) costs incurred in connection
with contracts that outsource R&D to third party developers and (3) costs
incurred in connection with the acquisition of intellectual property that is
properly classified as in-process R&D. R&D includes the conceptual
formulation, design and testing of product alternatives, construction of
prototypes, and operation of pilot plants. It does not include routine or
periodic alterations to existing products, production lines, manufacturing
processes, and other ongoing operations, even though those alterations may
represent improvements, and it also does not include market research
or market-testing activities. All R&D costs have been
expensed.


44




Income
Taxes: Deferred income taxes are recorded in accordance with FASB ASC
740, “Income Taxes,”,
and deferred tax assets and liabilities are determined based on the differences
between financial reporting and the tax basis of assets and liabilities using
the tax rates and laws in effect when the differences are expected to reverse.
FASB ASC 740 provides for the recognition of deferred tax assets if realization
of such assets is more likely than not to occur. Realization of net deferred tax
assets is dependent upon generating sufficient taxable income in future years in
appropriate tax jurisdictions to realize benefit from the reversal of temporary
differences and from net operating loss, or NOL, carry forwards. The Company has
determined it is more likely than not that the deferred tax asset resulting from
these timing differences will not materialize and have provided a valuation
allowance against the entire net deferred tax asset. Management will continue to
evaluate the realizability of the deferred tax asset and its related valuation
allowance. If the assessment of the deferred tax assets or the corresponding
valuation allowance were to change, the Company would record the related
adjustment to income during the period in which the determination is made. The
tax rate may also vary based on actual results and the mix of income or loss in
domestic and foreign tax jurisdictions in which operations take
place.




Refundable
tax credits are recorded, to the extent receipt is assured, in the year that
they are earned and included in other income.




The
provision for taxes represents corporate-level franchise taxes which may be
based on assets, equity, capital stock or a variation thereof.




Recently Issued Accounting
Pronouncements:





The
Company adopted, as of July 1, 2009, the Financial Accounting Standards Board’s
(“FASB”) Accounting Standards Codification (“ASC”) as the source of
authoritative accounting principles recognized by the FASB to be applied to
nongovernmental entities in the preparation of financial statements in
conformity with GAAP. The ASC does not change authoritative guidance.
Accordingly, implementing the ASC did not change any of the Company’s
accounting, and therefore, did not have an impact on the consolidated results of
the Company. References to authoritative GAAP literature have been updated
accordingly.




On
January 1, 2009, the Company adopted the provisions of FASB ASC topic 820
Fair Value Measurements and
Disclosures (formerly SFAS No. 157, Fair Value Measurements), with respect to
non-financial assets and liabilities. This pronouncement defines fair value,
establishes a framework for measuring fair value and expands disclosures about
fair value measurements. The adoption of ASC topic 820 did not have a material
impact on the Company’s consolidated financial statements.




On
January 1, 2009, the Company adopted FASB ASC topic 815-40 "Derivatives and Hedging – Contracts
in Entity’s own Equity"  (formerly EITF 07-5). ASC topic 815-40
provides guidance on determining whether an instrument (or an embedded feature)
is indexed to an entity’s own stock, which would qualify as a scope exception
under prior authoritative literature FASB No. 133. “Accounting for Derivative
Instruments and Hedging Activities” ASC 815-40 is effective for fiscal years
beginning after December 15, 2008. The Company adopted ASC topic 815-40 on
January 1, 2009 and as such some of the Company’s outstanding warrants that were
previously classified in equity were reclassified to liabilities as of January
1, 2009 as these warrants contain down round provisions and were no longer
deemed to be indexed to the Company’s own stock. See Note 2 for further
discussion.




On
January 1, 2009, the Company adopted the provisions of FASB ASC Topic
320-10-65 (formerly FSP FAS 107-1 and APB 28-1) “Interim Disclosures about Fair Value
of Financial Instruments”. This update requires fair value disclosures
for financial instruments that are not currently reflected on the balance sheet
at fair value on a quarterly basis. The adoption of ASC Topic 320-10-65 did not
have a material impact on the Company’s consolidated financial
statements.




On
January 1, 2009, the Company adopted the provisions of ASC 815-10 (formerly
FASB Statement 161, "Disclosures about Derivative
Instruments and Hedging Activities—an amendment of FASB Statement No.
133”).  FASB ASC 815-10 requires enhanced disclosures about an
entity’s derivative and hedging activities.  FASB ASC 815-10 is effective
for financial statements issued for fiscal years and interim periods beginning
after November 15, 2008 with early application encouraged.   The
adoption of this pronouncement did not have a material impact on the
consolidated financial statements.




45


In May
2009, the Company adopted FASB ASC topic 855, “Subsequent Events” (formerly
SFAS No. 165). This Statement sets forth: (i) the period after the balance sheet
date during which management of a reporting entity should evaluate events or
transactions that may occur for potential recognition or disclosure in the
financial statements; (ii) the circumstances under which an entity should
recognize events or transactions occurring after the balance sheet date in its
financial statements; and (iii) the disclosures that an entity should make about
events or transactions that occurred after the balance sheet date. The adoption
of ASC topic 855 did not have a material impact on the Company’s
consolidated financial statements. The Company has evaluated the period through
the date its financial statements were issued, and concluded there were no
events or transactions occurring during this period that required recognition or
disclosure in its financial statements.




In June
2009, the FASB issued ASC topic 105 “Generally Accepted Accounting
Principles”, (formerly Statement of Financial Standards (SFAS)
No. 168, The Hierarchy of
Generally Accepted Accounting Principles).ASC topic 105 contains
guidance which reduces the U.S. GAAP hierarchy to two levels, one that is
authoritative and one that is not. This pronouncement is effective
September 15, 2009. The adoption of this pronouncement did not have a
material impact on the consolidated financial statements.




In
September 2009, the FASB issued Accounting Standards Update (“ASU”) No.
2009-08, “Earnings Per Share”Amendments to Section 260-10-S99. This Codification Update
represents technical corrections to Topic 260-10-S99, Earnings per Share, based
on EITF Topic D-53, “Computation of Earnings Per Share
for a Period that Includes a Redemption or an Induced Conversion of a Portion of
a Class of Preferred Stock” and EITF Topic D-42, The Effect of the
Calculation of Earnings per Share for the Redemption or Induced Conversion of
Preferred Stock goes into effect in the period that includes a redemption or
induced conversion.  Adoption of this new guidance did not have a material
impact on the consolidated financial statements.




In
October 2009, the FASB issued authoritative guidance on ASC 605-25 “Revenue Recognition -
Multiple-Deliverable Revenue Arrangement“that will become effective
beginning July 1, 2010, with earlier adoption permitted. Under the new
guidance, when vendor specific objective evidence or third party evidence for
deliverables in an arrangement cannot be determined, a best estimate of the
selling price is required to separate deliverables and allocate arrangement
consideration using the relative selling price method. The new guidance includes
new disclosure requirements on how the application of the relative selling price
method affects the timing and amount of revenue recognition. We believe adoption
of this new guidance will not have a material impact on the consolidated
financial statements.




In
Release No. 33-9089, starting in 2010, the SEC ordered public companies to
increase the amount of information they provide on executive compensation
policies and explain how they affect risk management. The new rules will require
a discussion of the company's compensation policies and practices to employees,
including non-executive officers, to the extent that risks arising from such
policies and practices are reasonably likely to have a material adverse effect
on the entity. There are also requirements to disclose equity awards that are
subject to performance conditions, as well as changes to the summary
compensation table and director compensation tables. We believe adoption of this
new guidance did not have a material impact on the consolidated financial
statements.





In
January 2010, (ASU) No. 2010-06 , Fair Value Measurements and Disclosures (Topic
820)-Improving Disclosures about Fair Value Measurements) requires reporting
entities to provide information about movements of assets among Levels 1 and 2
of the three-tier fair value hierarchy established by SFAS No. 157 ( FASB ASC
820), Fair Value Measurements. Entities will also need to provide a
reconciliation of purchases, sales, issuance, and settlements of anything valued
with a Level 3method, which is used to price the hardest to value instruments.
The guidance is effective for any fiscal year that begins after December 15,
2010, and it should be used for quarterly and annual filings. We believe
adoption of this new guidance will not have a material impact on the
consolidated financial statements.




Note 3 -           Grant Income Pertaining to
Equipment




Grants from
Commonwealth of Pennsylvania:  The Company records state grants
received for equipment as deferred revenue based on qualifying equipment
purchases that are billed to the Commonwealth for reimbursement. Deferred
revenue is amortized into income over the estimated useful life of the related
equipment. As of December 31, 2009, the liability for deferred revenue was
$856,237 and other receivables included $195,142 for equipment grants invoiced
in 2009. During the year 2009, $90,002 of income was recorded for the
amortization of deferred revenue. As of December 31, 2008, the liability for
deferred revenue from state equipment grants was $751,096, and there were no
other receivables relating to equipment grants.





46




Note 4
-           Fair Value
Measures




The
Company has determined the fair value of certain assets through application of
ASC 820, Fair Value
Measurements.





The
Company did not hold any investment securities for the year ended December 31,
2009.





Fair
value of assets and liabilities measured at December 31, 2008 are as
follows:




Quoted Prices In Active Markets forFairValueMeasurementsatReportingDateUsing:
                  
                  Fair Value
                  
                  
                  Identical Assets/Liabilities (Level 1)December
      31, 2008:Available-for-sale
      securities
                  
                  
                  -
                  
                  
                  
                  -Certificates
      of Deposit
                  
                  $
                  194,000
                  
                  
                  $
                  194,000United
      States Treasury Bills
                  
                  $
                  1,999,920
                  
                  
                  $
                  1,999,920




There
were no investment gains or losses (realized and unrealized) included in
earnings for the periods reported.




Financial
assets and liabilities valued using Level 1 inputs are based on unadjusted
quoted market prices within active market.




Note
5 — Property and Equipment




A summary
of property and equipment at December 31, 2009 and 2008 is as
follows:





Estimated
                        usefullife
                      
                      2009
                      
                      
                      2008Construction
      in progress
                      
                      
                      $
                      1,000,692
                      
                      
                      $
                      543,894Leasehold
      improvements
                      Lesser
      of
                        Lease
      term
                        or
      10 years
                      
                      
                      144,335
                      
                      
                      
                      105,918Machinery
      & equipment
                      3-22
      years
                      
                      
                      4,145,364
                      
                      
                      
                      3,257,676Less
      accumulated depreciation
                      
                      
                      
                      1,074,311
                      
                      
                      
                      633,305Net
                      
                      
                      $
                      4,216,080
                      
                      
                      $
                      3,274,183




Depreciation
expense was $351,004 and $97,719 for the years ended December 31, 2009 and
December 31, 2008 respectively.





Certain
of our property and equipment amounting to $1,582,111 are secured by the
Pennsylvania Department of Community and Economic Development in relation to the
Machinery and Equipment Loan Fund financing. The initial loan proceeds in the
amount of $776,244 were received by us on September 14, 2009. The proceeds
of the loan will be used to defray part of the cost of equipment purchased for
use at our facility on Green Ridge Road in New Castle. The loan will bear
interest at the rate of 3% interest per annum and will be payable in equal
monthly installments of principal and interest over a period of seven years,
maturing on October 1, 2016.





Note
6 - Related Party Debt Financing





2008
Activity:





Secured Bridge
Loan Financing:Certain Bridge Loans entered into in 2007 had an original
maturity date of March 31, 2008, with three extensions of the maturity date at
the option of the Company and higher interest rates applicable to each such
extension.




47




·
            On
      May 29, 2008, Glenn Patterson (HAP) converted $4,200 of his Bridge Loan
      into equity under the same terms offered to Quercus discussed in Item 7
      “Recent Financing Activities”, with the $95,800 in principal repaid under
      the terms of the note for the Bridge Loan. Mr. Patterson received 4,627
      warrants valued at $3,990 utilizing the Black-Scholes-Merton option
      pricing model.





·
            On
      June 30, 2008, Igor Filipenko was repaid $225,000 in principal under the
      terms of the note for the Bridge Loan.  Mr. Filipenko received
      9,148 warrants valued at $9,768 utilizing the Black-Scholes-Merton option
      pricing model.





·
            On
      June 30, 2008, Robert Averill, converted $800,000 under the same terms
      offered to Quercus discussed in Item 7 “Recent Financing Activities”, with
      the $1,000,000 in principal repaid  on July 1, 2008 under the
      terms of the note for the Bridge Loan.  Mr. Averill received
      457,542 warrants valued at $342,748 utilizing the Black-Scholes-Merton
      option pricing model.




Options and
Warrants: The Secured Bridge Loan Financing disclosed above provided for
the aggregate issuance of 484,278 common stock purchase warrants. We satisfied
our obligation to issue 397,750 warrants remaining under this obligation in
March 2008 by issue to two of our directors.   $289,075 of unamortized
debt discount relating to the 2007 obligations was amortized during the 1st quarter
of 2008.  Because of the delay in processing these 3 year warrants,
exercisable at a price of $6.00, were issued with an expiration date of March
31, 2011. Due to lower stock prices at the time of modification, the
modification of these instruments resulted in a net decrease in fair value of
these instruments. Decreases in fair value of embedded options resulting from a
modification should not be recognized and accordingly are not reflected on the
Company’s financial statements.





2009
Activity:




2009SecuredBridge Loan
Financing.  In August of 2009
we structured a short term bridge loan with certain of our directors and
investors, the “Secured Bridge Loan”, secured by all of our intellectual
property. Under the arrangement, we received funding of $800,000 through
September 30, 2009.The Secured Bridge Loan had an original maturity date of
December 31, 2009; a loan origination fee equal to 8% of the original loan;
3,405 warrants upon occurrence of the loan issuable for each $100,000 invested
and exercisable at $2.00 until August 12, 2014. Anti-dilution provisions apply
to the warrants. On or about December 8, 2009, we borrowed an additional
$541,666 from Robert Averill, one of our directors, on substantially similar
terms to the bridge loans in August 2009. The new bridge loan bears no
interest but has a fee of 8% of the principal amount thereof.  The
holders of these notes had the right to convert the note together with interest,
into any security sold by us in an institutional offering.  $371,353
of the principal amount and fee was converted into an investment in us as part
of the December 22, 2009 private placement, and $970,313 of principal amount and
accrued fees thereon was repaid in December of 2009. The amounts
reported as related party in this disclosure include payment to one accredited
investor with certain associations to related parties.Upon
repayment of the note, all conversion rights
terminated.





Options and
Warrants: The Secured Bridge Loan Financing disclosed above provided for
the aggregate issuance of 45,661 common stock purchase warrants with 38,851
issued to one director.   $34,002 in debt discount was recognized
during 2009 relating to these warrants.





Interest
Expense:Interest expense recognized for the year ended
December 31, 2009 in connection with certain notes payable to related parties
amounted to $186,063.  Of this total $46,395 relates to the interest
coupon and $139,668 to the amortization of note discount associated with loan
origination fees and detachable warrants.   The amounts reported
as interest expense-related party on the income statement include payment to one
accredited investor with certain associations to related parties. Interest
expense recognized for the year ended December 31, 2008 in connection with
certain notes payable to related parties amounted to $1,137,485.  Of
this total $277,045 relates to the interest coupon and $860,443 to the
amortization of note discount associated with loan origination fees and
detachable warrants.   The amounts reported as interest
expense-related party on the income statement include payments to four
accredited investors with certain associations to related parties. The note
discounts are being amortized as interest expense over the life of the
respective notes.




Note
7— Stockholders' Equity




Authorized
Capitalization: The Company’s authorized capitalization includes
100,000,000 shares of common stock and 12,500,000 shares of preferred stock.
This represents an increase in the number of authorized common shares from
50,000,000 pursuant to the Shareholder meeting vote on November 12,
2008.




48




Common
Stock:  At December 31, 2009, 75,767,818 shares of common stock were
issued and outstanding. The holders of common stock are entitled to one vote for
each share held of record on all matters to be voted on by stockholders. There
is no cumulative voting with respect to the election of directors, with the
result that the holders of more than 50% of the shares voted for the election of
directors can elect all of the directors. Holders of common stock are entitled
to receive dividends when and if declared by the board out of funds legally
available. In the event of liquidation, dissolution or winding up, the common
stockholders are entitled to share ratably in all assets remaining available for
distribution to them after payment of liabilities and after provision has been
made for each class of stock, if any, having preference over the common stock.
The common stockholders have no conversion, preemptive or other subscription
rights and there are no redemption provisions applicable to the common stock.
All of the outstanding shares of common stock are fully paid and
non-assessable.




Preferred
Stock: The Company’s certificate of incorporation authorizes the
issuance of 12,500,000 shares of blank check preferred stock. The Company’s
board of directors has the power to establish the designation, rights and
preferences of any preferred stock. Accordingly, the board of directors has the
power, without stockholder approval, to issue preferred stock with dividend,
liquidation, conversion, voting or other rights that could adversely affect the
voting power or other rights of the holders of common stock.





At
December 31, 2009, 630,897 shares of Series A Convertible Preferred Stock were
issued and outstanding.  Our Series A Convertible Preferred Stock has
been converted into 8,785,483 shares of common stock pursuant to an amendment to
the Series A Certificate of Designation filed with the Delaware Secretary of
State on February 24, 2010.




Equity
Transactions –period ended December 31, 2003




APC and
Tamboril Cigar Company (Tamboril, now Axion) reverse acquisition:In
December 2003 Tamboril entered into a reverse acquisition agreement with APC.
Under the terms of the agreement, all outstanding securities of APC were
acquired by Tamboril in exchange for newly issued stock. Upon consummation of
the transaction, the former stockholders of APC owned the majority of Tamboril’s
outstanding shares and controlled Tamboril’s Board of Directors. Accordingly,
the acquisition of APC by Tamboril was structured as a reverse acquisition under
which Tamboril was the legal acquirer in the transaction and APC was the
accounting acquirer. The transaction was treated as a recapitalization of APC
for accounting purposes. Tamboril had no material assets or liabilities and
1,875,000 common shares outstanding on December 31, 2003 when it entered into a
reverse acquisition with shareholders of APC. The historical financial
statements presented prior to December 31, 2003 represent those of APC since its
inception on September 18, 2003. The transactions of Tamboril are included
beginning January 1, 2004. Subsequently, Tamboril changed its name to Axion
Power International, Inc.




Prior to
the reverse acquisition, APC issued rights to its founders for 1,360,000 shares
of APC common stock as additional shares for money contributed through the
purchase of convertible debt. Accordingly, there was no expense recorded related
to these issuances of these shares. However, there was one founder that did not
contribute funds in which APC valued the 170,000 shares issued as expense for
services rendered during the period ending December 31, 2003 amounting to
$48,953 based on the value of the shares received for the funds contributed by
the other founders. The founders purchased convertible debt from APC for
$1,450,000 of which $350,000 was not collected until 2004 which is included as a
subscription receivable as of December 31, 2003. These convertible debt
instruments were converted prior to the merger in which 1,108,335 shares of APC
common stock were issued as consideration for $1,450,000 of convertible debt and
$92,761 in unamortized debt discount attributable to detachable
warrants.




The
following transactions were completed in conjunction with the original
closings:




·
            Tamboril had 1,875,000 shares of
      common stock outstanding at December 31, 2003 which is reflected as equity
      acquired in the
recapitalization.





·
            Tamboril settled $484,123 in
      pre-merger accrued related party compensation debt through the issuance of
      233,400 warrants. No corresponding expense was recorded on the Company’s
      records because the debt was included on the legal acquirer’s (Tamboril’s)
      records prior to the reverse
acquisition.




49




·
            Tamboril issued 9,785,818 common
      shares (prior to the return of 1,000,000 shares from The Trust for the
      Benefit of the Shareholders of Mega-C Power Corp in the fiscal year ended
      December 31, 2006, as disclosed in the note captioned “Subsequent Events”)
      and 608,600 warrants to APC’s stockholders in exchange for a substantial
      controlling interest in APC. This includes the common shares issued to the
      founders, common shares and warrants issued in conjunction with the
      convertible notes, and shares issued to the Mega C
      Trust.





·
            As part of the above described
      transaction, APC shareholders, who had rights to the stock agreed to have
      7,147,483 shares of Tamboril shares to be issued to the Trust and APC
      shareholders retained the remaining shares. As a result of the November
      21, 2006 Mega C Chapter 11 plan of reorganization, the Trust was required
      to return 1,000,000 shares of the common stock distributed to the Trust
      noted above for cancellation by the Company. The Company retroactively
      adjusted the return of the shares against the shares issued to the Trust
      resulting in 6,147,483 net shares issued to the Trust at December 31,
      2003.





·
            The original reverse acquisition
      was amended on January 9, 2004. See discussion of the amendment under the
      explanation of the equity 2004
below.





Equity
Transactions –period ended December 31, 2004




APC and
Tamboril Cigar Company (Tamboril, now Axion) reverse acquisition:Prior
to the second part of the reverse acquisition on January 9, 2004, the Company
adjusted the original shares issued to the founders by issuing rights to an
additional 445,000 shares to the founders and 180,000 shares to the Trust. Since
there was no additional service or money contributed there was no expense
recorded related to the additional shares issued. Also, the Company issued
45,000 shares to the CEO which amounted to $72,000 valued at the pink sheet bid
price on the date of grant. Certain related parties purchased convertible debt
from APC for $400,000. The $400,000 of convertible debt purchased during 2004
and the remaining $50,000 of convertible debt outstanding at December 31, 2003
was converted into 283,333 shares of APC common stock during 2004.




2004
Private Placements:During
the year ended December 31, 2004, the Company sold 823,800 shares of common
stock and 463,100 warrants for net cash proceeds of $1,607,134. The Company also
received $868,020 in cash proceeds from the exercise of 475,200 outstanding
common stock purchase warrants. The Company issued 48,782 shares of common stock
for rounding purposes in conjunction with the 2004 one-for-sixteen reverse stock
split.




Equity
Transactions –Year ended December 31, 2005




Augmentation
of Trust and Trust Settlement: In February 2005, the Company issued
500,000 shares of common stock to The Trust for the Benefit of the Shareholders
of Mega-C Power Corp. For accounting and financial reporting purposes, the stock
issuance transaction was valued at $1,525,000, which represents the value of the
shares on the date of issuance. This amount was charged to operating expenses
during the year ended December 31, 2005. There were 500,000 shares returned to
the Company for cancellation in November 2006 in connection with the bankruptcy
court confirmation of the settlement (see note captioned “Mega-C Power Corp
(Mega-C), Mega-CTrust (the Trust), The
Taylor Litigation”). Those shares were effectively the return of the 500,000
shares issued to the Trust in February, 2005. The return of those shares was
recorded as a reversal of the expense at fair value on the date of return in
2006 in the amount of $1,125,000 and has been subsequently cancelled. In
addition, under the bankruptcy court confirmation of the settlement, the Trust
corpus was reduced another 1,000,000 shares, which were returned to the Company
and cancelled. The return in 2006 was the result of a negotiated settlement and
there are no contingencies surrounding the Trust shares in 2005. This
cancellation was considered a retroactive adjustment to the shares issued in the
2003 reverse acquisition.




2005
Private Placement of Senior Preferred: In February 2005, the board of
directors designated 1,000,000 shares of preferred stock as 8% Cumulative
Convertible Senior Preferred Stock (the “senior preferred”). The Company sold
385,000 shares of senior preferred at a price of $10 per share. The net proceeds
of the offering included $2,754,110 in cash and $1,000,000 in liability
conversion (see Note captioned “Transactions with a Related Party (C&T)”).
At December 31, 2005, $25,000 of this amount was included in stock subscription
receivable that was subsequently reversed in 2006 when the amount was deemed
uncollectible. The senior preferred offering originally required the sale of a
minimum of 500,000 shares ($5,000,000) before the offering proceeds would be
available to the Company. The purchasers of the senior preferred ultimately
waived this minimum offering condition. The preferred stock has liquidation
preference equal to the stated value on the payment date before any payment or
distribution is made to the holders of common stock.




50




So long
as any senior preferred shares are outstanding, the Company cannot (i) issue any
series of stock having rights senior to or on parity with the senior preferred
(ii) amend, alter or repeal any provision of its Certificate of Incorporation or
bylaws to adversely affect the relative rights, preferences, qualifications,
limitations or restrictions of the senior preferred, or (iii) effect a
reclassification of the senior preferred without the consent of the holders of a
two-thirds majority of the outstanding shares. The Company is not authorized to
issue any additional shares of senior preferred.




To
provide for immediate cash needs during the offering period, the Company agreed
to issue warrants to any purchaser of senior preferred who agreed to loan the
Company the amount of the share proceeds until the $5 million minimum
subscription was reached. In connection therewith, the purchasers of $565,000 of
senior preferred agreed to release their subscription payments notwithstanding
the minimum subscription and other restrictions in the associated private
placement memorandum. As a result, the Company issued 282,500 warrants to those
purchasers. By March 2005, the $5 million minimum was still not met and the
Company agreed to issue 228,500 additional warrants to the purchasers of
$2,285,000 of senior preferred who agreed to waive the minimum subscription
requirement. The foregoing warrants are exercisable at a price of $2 per share,
and were to expire on March 21, 2007.Because the warrants
were detachable, granted in connection with the offering, immediately vested,
and exercisable at a price that was less than the reported fair market value of
the underlying common stock on the date of grant, the proceeds of the offering
were allocated between the senior preferred and the warrants based on the
relative fair value of each instrument. The assumed value of the senior
preferred was determined based on the fair value of the underlying common shares
and the fair value of the warrants was valued using the Black-Scholes-Merton
option pricing model. The proceeds allocated to the senior preferred amounted to
$3,440,268. The effective conversion price of the senior preferred was at a
price lower than the market price of the common stock at the date of the
issuance, resulting in a non-cash beneficial conversion feature of $2,315,482.
This beneficial conversion feature was immediately recognized as additional
non-cash dividends. On March 9, 2007 the Board of Directors unanimously agreed
to extend the life 476,000 $2.00 warrants issued in March 2005 to purchasers who
subscribed to the Senior Preferred private placement offering.





Holders
of senior preferred have the right to convert their shares into common stock at
any time, at an original conversion price of $2.00. The Company was required to
register the underlying shares by April 30, 2005. The shares were not registered
until June 2005 and as a result the conversion price was reduced to $1.86 per
share. This reduction in the conversion price resulted in an additional
beneficial conversion feature, valued at the fair value of the additional common
shares issuable as a result of the reduced conversion price, amounting to
$433,228.




Holders
of senior preferred are entitled to anti-dilution protection for certain
subsequent events, including the issuance of equity or debt securities that may
be converted into common stock at a conversion price that is less than the
conversion price of the senior preferred. As discussed in the note captioned
“Subsequent Events,” the Company sold approximately 823,000 shares of Series A
Preferred Stock that is convertible at a price of $1.25 per share. This stock
sale triggered the anti-dilution provisions of the senior preferred stock and
giving effect to all required adjustments, the adjusted conversion price of the
senior preferred is now $1.68 per share as of December 31, 2006.




In
September 2005, the Company offered all holders of preferred stock an early
conversion incentive that was approximately equivalent to one year’s anticipated
dividends on the preferred stock. While each share of senior preferred was
convertible into 5.5 shares of common stock when the Company offered the early
conversion incentive, 6 shares of common stock were issued for each share of
senior preferred converted during the incentive period. A total of 245,000
shares were converted. The fair value of the additional common shares issued as
a result of this inducement was recorded as a preferred dividend, amounting to
$350,446.




The total
of the beneficial conversion feature and conversion inducement for the year
ended December 31, 2005 that is included in preferred dividends on the
accompanying statement of operations amounted to $3,099,156. The Company
analyzed the embedded derivative conversion feature and the free standing
warrants issued in connection with the senior preferred and determined that the
instruments are equity instruments and accordingly, are not accounted for as
derivatives, requiring fair value accounting at each reporting
period.




Holders
of senior preferred are entitled to receive dividends at the annual rate of 8%.
Dividends are payable quarterly on the last day of March, June, September and
December of each year. Dividends are cumulative from the date of issuance and
payable to holders of record. In order to conserve available resources, the
Company did not pay cash dividends on the senior preferred in any quarter where
the Company reported a net loss. Any accrued dividends that are not paid in cash
will be added to the stated value of the senior preferred. Dividends accrued and
added to the stated value of the senior preferred during the year ended December
31, 2006 and 2005 amounted to $119,092 and $176,194, respectively.




51




The
senior preferred is redeemable by the Company under certain conditions unless
the holders elect to exercise their conversion rights prior to the redemption
date. Twenty percent of the senior preferred will become redeemable when the
market price of the Company’s common stock exceeds $6.00 per share for at least
30 trading days within any period of 45 consecutive trading days. Thereafter, an
additional twenty percent of the senior preferred will become redeemable for
each $1.00 increase in the stabilized market price of the Company’s common
stock. In connection with any proposed redemption of senior preferred, the
Company will give each holder not less than 30 days notice of its intention to
redeem a portion of the shares.




2005
Private Placement of Common Stock: Common stock private placement
activities during the year ended December 31, 2005 were as follows:




·
            The Company sold 600,000 units,
      each consisting of one share of common stock and a two-year warrant
      exercisable at $4.00 for a purchase price of $2.00 per unit, or
      $1,200,000, before offering costs. As of December 31, 2005, $200,000 is
      included in stock subscriptions receivable, which was received in
      2006.





·
            A director exercised 446,000 - $1
      warrants/options and 25,000 - $2 options with a total exercise price of
      $496,000. The stock was issued and included in stock subscriptions
      receivable as of December 31, 2005. As of June 19, 2006, the full
      amount has
been settled.





·
            Other holders exercised 382,665
      options & warrants with an aggregate exercise price of
      $787,395.




Equity
Transactions –Year ended December 31, 2006




Augmentation
of Trust and Trust Settlement: See above 2005 transactions and the
discussion in the note captioned “Mega-C Power Corp (Mega-C),Mega-CTrust (the Trust),
TheTaylor
Litigation” for disclosures about shares issued to the Trust, returned from the
Trust in November 2006 and the accounting for those shares.




Senior
Preferred: During 2006, a subscription for senior preferred shares was
cancelled, reducing the balance by 2,500 shares or $25,000. The senior preferred
had an initial stated value of $10.00 per share. Accrued dividends that are not
paid in cash within 10 days of a payment date will automatically be added to the
stated value and the stated value, as adjusted, will be used for all future
dividend and conversion calculations. As of December 31, 2006 $295,286 in
dividends has been accrued to cover the Company’s obligations with regard to the
8% Cumulative Convertible Senior Preferred stock. No cash dividends have been
paid with respect to these shares. Non-cash dividends have increased the value
of the Senior Preferred shares by $1.52 to a stated value of $11.52 per
share




2006 Private
Placement of Series A Preferred Stock:On October 18, 2006, the
Company’s board of directors designated, from the Company’s total authorized
12,500,000 shares, a new series of preferred stock consisting of up to 2,000,000
shares designated Series A Convertible Preferred Stock (the “series A
preferred”). During the fourth quarter of 2006, the Company sold an aggregate of
782,997 shares of series A preferred at a price of $10 per share for net
proceeds of $7,722,470 including $4,352,500 in cash and $3,369,970 in liability
conversion. In connection with the private placement, the Company incurred total
offering expenses of $258,202, of which $107,500 was paid in cash, while the
remainder was paid through the issuance of options to acquire shares of the
Company’s common stock.




Under the
terms of this new series of preferred stock, no more than 1,000,000 shares may
be sold for cash and the remaining shares must be reserved for (i) issuance
upon exercise of the conversion rights of holders of secured and unsecured
short-term debt and (ii) to pay in-kind dividends on the series A
preferred. So long as any series A preferred shares are outstanding, the Company
cannot (i) issue any series of stock having rights senior to or on parity with
the series A preferred (ii) amend, alter or repeal any provision of its
Certificate of Incorporation or bylaws to adversely affect the relative rights,
preferences, qualifications, limitations or restrictions of the series A
preferred (iii) effect a reclassification of the series A preferred or (iv)
issue any additional shares of series A preferred, each without the consent of
the holders of a two-thirds majority of the outstanding shares. The holders of
series A preferred have no pre-emptive rights with respect to any other
securities of the Company and a liquidation preference equal to the stated value
on the payment date before any payment or distribution is made to the holders of
common stock.





52




Beginning
on April 23, 2007, the shares of series A preferred were convertible at the
option of the holders of record at an initial conversion price of $1.25 per
share. Holders of series A preferred are entitled to anti-dilution protection
for certain subsequent events, including the issuance of equity or debt
securities that may be converted into common stock at a conversion price that is
less than the conversion price of the series A preferred resulting in a
reduction in the conversion price of the series A preferred. No such other
securities have been issued through the date of this report which would require
the reduction of the conversion price of the series A preferred. In addition,
the effective conversion price of the series A preferred was at a price lower
than the market price of the common stock at the respective dates of issuance in
the fourth quarter of 2006, resulting in an aggregate non-cash beneficial
conversion feature of $6,709,970 recognized as additional non-cash dividends on
a straight line basis, which did not differ materially from the effective
interest method, from the respective dates of issuance of the series A preferred
in the fourth quarter of 2006 through the first date these shares are
convertible on April 23, 2007. As a result, $613,336 was recognized as
additional non-cash dividends in the fourth quarter of 2006 with the remaining
amount recognized in 2007. In addition, if all holders of the series A preferred
were to have exercised their conversion rights at their respective dates of
subscription, these holders would have received an additional $5,597,970 in fair
value in excess of the proceeds paid for their subscriptions to the series A
preferred. The Company further analyzed the embedded conversion feature and
determined that it is properly classified as an equity instrument and
accordingly, is not accounted for as a derivative, requiring fair value
accounting at each reporting period.




Holders
of the shares of series A preferred shall receive dividends at the annual rate
of 10% of the stated value of the series A preferred so long as the Company is
current with respect to its reporting obligations under the Securities Exchange
Act of 1934 on any dividend payment date. Dividends are payable quarterly on the
last day of March, June, September and December in each year. Dividends are
cumulative from the date of issuance and payable to holders of record. Any
accrued dividends that are not paid in cash will be added to the stated value of
the series A preferred.




Because
the Company was not current with respect to its reporting obligations through
December 31, 2007, the series A preferred annual dividend rate increased to 20%
of the stated value. All but one of the series A preferred shareholders elected
to reinvest their preferred dividends back into series A preferred shares. As of
December 31, 2006, $103,101 of dividends has been accrued, including $97,896 in
non-cash and $5,205 in cash dividends. No cash dividends have been paid with
respect to the series A preferred shares. Non-cash dividends have increased the
value of the series A preferred shares by $0.13 to a stated value of $10.13 as
of December 31, 2006.




The
series A preferred had an initial stated value of $10.00 per share. Non-cash
dividends are automatically added to the stated value and the stated value, as
adjusted, will be used for all future dividend and conversion
calculations.  As of December 31, 2006 $103,101 in dividends has been
accrued to cover the Company’s obligations with regard to the Series A Preferred
stock. No cash dividends have been paid with respect to these shares. Non-cash
dividends have increased the value of the Series A Preferred shares by $0.13 to
a stated value of $10.13 per share




The
series A preferred is redeemable by the Company under certain conditions unless
the holders elect to exercise their conversion rights prior to the redemption
date. Twenty percent of the series A preferred will become redeemable when the
market price of the Company’s common stock exceeds $5.00 per share for at least
30 trading days within any period of 45 consecutive trading days. Thereafter, an
additional twenty percent of the series A preferred will become redeemable for
each $2.50 increase in the stabilized market price of the Company’s common
stock. In connection with any proposed redemption of series A preferred, the
Company will give each holder not less than 30 days notice of its intention to
redeem a portion of the shares.





Common
Stock & Private Placements.  The common stock transactions
during the year ended December 31, 2006 are as follow:




·
            Two unaffiliated individual
      accredited investors purchased a total of 80,000 units for a purchase
      price of $2.50 per unit or $200,000.   Each unit consists of one
      share of common stock and one common stock purchase warrant with an
      exercise price of $4.00 per share. The warrants are exercisable up until
      the first anniversary of the effective date of the common stock
      registration statement and were valued at $26,354 on the date of
      issuance





·
            The Company’s chief executive
      officer exercised his $2.00 warrants to purchase 56,700 shares for
      $113,400





·
            The Company’s Chief Technical
      Officer received 6,000 unrestricted shares, valued at $24,000, pursuant to
      his 2005 employment contract and an additional 250,000 restricted shares,
      valued at $937,500, pursuant to his 2006 employment contract. The 250,000
      shares will become fully vested on December 28, 2009. The expense related
      to these shares will be recognized over this three-year requisite service
      period and the shares will be considered issued and outstanding upon
      vesting.




Subscriptions
Receivable: The balance sheet as of December 31, 2005 reflected $721,000
in subscriptions receivable. During the year ended December 31, 2006, the
Company received subscription payments of $588,900, settled $107,100 against
open invoices for legal services, and cancelled the unsettled balance of the
subscription receivable for preferred stock amounting to $25,000.




53


Warrants:741,613 warrants were
issued to related parties in conjunction with the financing of debt issued
during 2006. See the “Related Party” footnote within ‘Debt Financing “above. In
April, 2006, the Company’s chief executive officer exercised his $2.00 warrants
to purchase 56,700 shares for $113,400. In October 2006,
200,000 3-year warrants were issued in payment for consulting services. These
$3.00 warrants valued at $74,437 are scheduled to expire in October 2009. In
December 2006, a former director of the Company received 9,000 $6.00 warrants
valued at $12,411, and are scheduled to expire December 29, 2010. Additionally,
80,000 warrants were issued to accredited investors in connection with a private
placement of units comprised of one share of the Company’s common stock and one
stock purchase warrant, as discussed above.




On June
9, 2006 the Board of Directors extended the life of 1,562,900 warrants issued to
the original shareholders of C&T along with 91,700 capital warrants issued
to Sally Fonner in recognition of the Company’s difficulty in establishing a
public trading market for its common stock. These $2 warrants scheduled to
expire in 2006 and early 2007 were modified to a December 31, 2007 expiration.
The warrants, valued at $521,642 prior to the extension, were revalued at the
date of modification using the Black-Scholes-Merton option-pricing model. The
incremental expense in 2006 resulting from the revaluations was recorded into
R&D ($342,131) and SG&A ($50,680).




Equity
Transactions –Year ended December 31, 2007





Senior
Preferred: At December 31, 2007, 137,500 shares of 8% Cumulative
Convertible Senior Preferred stock were issued and outstanding. As of December
31, 2007 $425,852 in dividends has been accrued to cover the Company’s
obligations with regard to the 8% Cumulative Convertible Senior Preferred stock.
No cash dividends have been paid with respect to these shares. Non-cash
dividends have increased the value of the Senior Preferred shares by $2.72 to a
stated value of $12.72 per share.




Series A
Preferred: 782,997 shares of Series A Preferred were issued during 2006.
In January 2007, the Company sold 40,000 additional shares of Series A Preferred
to accredited investors for gross cash proceeds of $400,000. On the date of
issuance, the effective conversion price of the Series A Preferred was at a
price lower than the market price of the common stock resulting in a non-cash
beneficial conversion feature of $400,000 recognized as additional non-cash
dividends on a straight line basis through the first date these shares are
convertible, being April 23, 2007. This straight line calculation did not differ
materially from the effective yield method. With the 2007 subscription, the
aggregate non-cash beneficial conversion feature attributable to the Series A
Preferred shares is valued at $7,109,970. $613,336 was recognized as additional
non-cash dividends in the fourth quarter of 2006, with the remaining balance of
$6,496,634 recognized as additional non-cash dividends during the year ending
December 31, 2007. Beginning on April 23, 2007, the shares of Series A Preferred
became convertible at the option of the holders of record at an initial
conversion of $1.25 per share. The conversion price is subject to adjustment if
Axion issues any shares less than the then existing conversion
price.




The
holders of the shares of Series A Preferred receive dividends at the annual rate
of 20% of the Stated Value of the Series A Preferred so long as the Company is
behind with respect to its reporting obligations under the Securities Exchange
Act of 1934 on any dividend payment date. Once the company is current with
respect to these reporting obligations, the dividend rate will be reduced to an
annual rate of 10% of the Stated Value. As of December 31, 2007, $1,893,855 in
dividends has been accrued. No cash dividends have been paid with respect to the
Series A Preferred shares. Non-cash dividends have increased the value of Series
A Preferred shares by $3.46 to a stated value of $13.46 per share. As of
December 31, 2007, 822,997 shares of Series A Convertible Preferred stock were
issued and outstanding.




Equity
Transactions –Year ended December 31, 2008




Senior
Preferred: At December 31, 2008, 137,500 shares of 8% Cumulative
Convertible Senior Preferred stock were issued and outstanding. As of December
31, 2008, $567,181 in dividends has been accrued to cover the Company’s
obligations with regard to the 8% Cumulative Convertible Senior Preferred stock.
No cash dividends have been paid with respect to these shares. Non-cash
dividends have increased the value of the Senior Preferred shares by $3.50 to a
stated value of $13.50 per share.





Series A
Preferred: With the Company becoming current with respect to its
reporting obligations under the Securities Exchange Act of 1934, the dividend
rate on its Series A Preferred reduced to an annual rate of 10% of the Stated
Value. During the year ended December 31, 2008, 104,000 Series A Preferred
shares along with accrued dividends of $298,875 were converted into 1,071,099
common shares. As of December 31, 2008, $2,571,321in dividends have been
accrued. No cash dividends have been paid with respect to the Series A Preferred
shares. Non-cash dividends have increased the value of Series A Preferred shares
by $3.58 to a stated value of $13.58 per share. As of December 31, 2008, 718,997
shares of Series A Convertible Preferred stock were issued and
outstanding.





54




Equity
Transactions –Year ended December 31, 2009




Senior
Preferred: On September 22, 2009, the agreement to reset the Quercus
warrants triggered the anti-dilutive protection of this instrument and the
conversion price was reduced from $1.86 to approximately $1.43 per share.
Effective October 30, 2009, all of the outstanding 137,500 shares of 8%
Cumulative Convertible Senior Preferred stock were converted into 1,390,944
common shares, with certificates physically issued on December 23,
2009.  During 2009, $126,497 in dividends has been accrued to cover
the Company’s obligations through October 30, 2009. No cash dividends have been
paid with respect to these shares. Non-cash dividends have increased the value
of the Senior Preferred shares by $4.42 to a stated value of $14.42 per share
through the conversion date.





The
following table summarizes the stated value through 2009, and there are no
senior preferred outstanding as of December 31, 2009.




Quarter
                    Ended
                  
                  Adjusted Stated
                    Value31-Mar-09
                  
                  $
                  13.7730-Jun-09
                  
                  $
                  14.0430-Sep-09
                  
                  $
                  14.3230-Oct-09
                  
                  $
                  14.42




Series A
Preferred: With the Company becoming current with respect to its
reporting obligations under the Securities Exchange Act of 1934, the dividend
rate on its Series A Preferred was reduced to an annual rate of 10% of the
Stated Value. During the year ended December 31, 2009, 88,100 Series A Preferred
shares along with accrued dividends of $399,308 were converted into 1,149,201
common shares.





On
September 22, 2009, the agreement to reset the Quercus warrants triggered the
anti-dilutive protection of this instrument and the conversion price was reduced
from $1.25 to approximately $1.07 per share. On November 30, 2009 the
Corporation’s board of directors passed resolutions approving Amendments to the
Certificate to provide that the remaining 630,897 issued and outstanding
shares of Series A Preferred, including any dividends otherwise owing with
respect thereto, shall be automatically converted into
8,785,483  shares of Common Stock without any further action required
on the part of the holders of its Series A  Preferred, and the powers,
designations, preferences and rights of holders of Series A Preferred shall
automatically become null and void.  The Amendments were approved by
the requisite number of shareholders of Series A Preferred and Common Stock on
December 10, 2009, and the Definitive Information Statement has been filed on
Schedule 14C with the Securities and Exchange Commission on January 11, 2010.
Our Series A Convertible Preferred Stock has been converted into 8,785,483
shares of common stock pursuant to an amendment to the Series A Certificate of
Designation filed with the Delaware Secretary of State on February 24,
2010.  $909,819 in dividends have been accrued through the date of the
November 30, 2009 resolution. No cash dividends have been paid with respect to
the Series A Preferred shares. Non-cash dividends have increased the value of
Series A Preferred shares by $4.88 to a stated value of $14.88 per share. As of
December 31, 2009, 630,897 shares of Series A Convertible Preferred stock were
issued and outstanding.





The
following table summarizes the stated value through December 31,
2009.




Quarter
                    Ended
                  
                  Adjusted Stated
                    Value31-Mar-09
                  
                  $
                  13.9230-Jun-09
                  
                  $
                  14.2630-Sep-09
                  
                  $
                  14.6331-Dec-09
                  
                  $
                  14.88




55




Common Stock
Issuances:The
following table represents per share issuances of common stock from inception
through December 31, 2009, pursuant to FASB ASC 915, “Development Stage
Enterprises”:




2003Description:
                                Date
                                
                                Shares
                                
                                
                                Per share
                                  valuation
                                
                                Business reason:Shares
      issued to founders
                                9/18/2003
                                
                                
                                1,360,000
                                
                                
                                $
                                0.00
                                
                                original
      capitalization-no contributed capitalAPC
      Founder
                                9/18/2003
                                
                                
                                170,000
                                
                                
                                $
                                0.29
                                
                                services
      rendered with respect to formationSeed
      debt financing
                                12/31/2003
                                
                                
                                500,000
                                
                                
                                $
                                1.00
                                
                                conversion
      of debt and accrued interest to common stockSeries
      I convertible debt
                                12/31/2003
                                
                                
                                533,334
                                
                                
                                $
                                1.50
                                
                                conversion
      of debt and accrued interest to common stockSeries
      II convertible debt
                                12/31/2003
                                
                                
                                75,000
                                
                                
                                $
                                2.00
                                
                                conversion
      of debt and accrued interest to common stockMega-C
      Trust
                                12/31/2003
                                
                                
                                6,147,484
                                
                                
                                $
                                0.00
                                
                                In
      lieu of shares issuable to foundersTamboril
      shareholders
                                12/31/2003
                                
                                
                                1,875,000
                                
                                
                                $
                                0.00
                                
                                recapitalization
      measured at fair market value of Tamboril assets2003
      Totals
                                
                                
                                
                                10,660,818
                                
                                
                                $
                                0.14




2004Description:
                                Date
                                
                                Shares
                                
                                
                                Per share
                                  valuation
                                
                                Business reason:Shares
      issued to founders
                                1/9/2004
                                
                                
                                445,000
                                
                                
                                $
                                0.00
                                
                                In
      lieu of shares issuable to foundersMega-C
      Trust
                                1/9/2004
                                
                                
                                180,000
                                
                                
                                $
                                0.00
                                
                                adjustment
      is shares issuable to foundersOfficer
                                1/9/2004
                                
                                
                                45,000
                                
                                
                                $
                                1.60
                                
                                services
      rendered by former officerSeries
      I convertible debt-Igor Filipenko
                                1/9/2004
                                
                                
                                50,000
                                
                                
                                $
                                1.00
                                
                                conversion
      of debt and accrued interest to common stockSeries
      II convertible debt-Turitella
                                1/9/2004
                                
                                
                                133,333
                                
                                
                                $
                                1.50
                                
                                conversion
      of debt and accrued interest to common stockSeries
      III convertible debt-Turitella
                                1/9/2004
                                
                                
                                100,000
                                
                                
                                $
                                2.00
                                
                                conversion
      of debt and accrued interest to common stockSeries
      II common stock offering
                                2/1/2004
                                
                                
                                175,000
                                
                                
                                $
                                2.00
                                
                                common
      stock & warrants issued for cashSeries
      III common stock offering
                                3/31/2004
                                
                                
                                288,100
                                
                                
                                $
                                3.00
                                
                                common
      stock & warrants issued for cashExercise
      of Series I warrants
                                various
                                
                                
                                316,700
                                
                                
                                $
                                1.50
                                
                                warrants
      exercised pursuant to original termsExercise
      of Series II warrants
                                various
                                
                                
                                125,000
                                
                                
                                $
                                2.28
                                
                                warrants
      exercised pursuant to original termsExercise
      of Series II warrants
                                various
                                
                                
                                33,500
                                
                                
                                $
                                3.23
                                
                                warrants
      exercised pursuant to original termsNovember
      emergency funding
                                11/1/2004
                                
                                
                                314,000
                                
                                
                                $
                                1.50
                                
                                common
      stock & warrants issued for cashDecember
      emergency funding
                                12/1/2004
                                
                                
                                46,700
                                
                                
                                $
                                1.50
                                
                                common
      stock & warrants issued for cashFractional
      shareholders
                                12/31/2004
                                
                                
                                48,782
                                
                                
                                $
                                0.00
                                
                                shares
      issued due to reverse split rounding formula2004
      Totals
                                
                                
                                
                                2,301,115
                                
                                
                                $
                                1.37




56




2005Description:
                            Date
                            
                            Shares
                            
                            
                            Per share
                              valuation
                            
                            Business reason:Mega-C
      Trust
                            2/28/2005
                            
                            
                            500,000
                            
                            
                            $
                            3.05
                            
                            Trust
      augmentationBanca
      di Unionale
                            3/18/2005
                            
                            
                            30,000
                            
                            
                            $
                            2.00
                            
                            conversion
      of Preferred and accrued dividendsBanca
      di Unionale
                            4/20/2005
                            
                            
                            20,000
                            
                            
                            $
                            2.00
                            
                            conversion
      of Preferred and accrued dividendsC&T
      employees
                            4/1/2005
                            
                            
                            219,000
                            
                            
                            $
                            2.50
                            
                            employee
      incentive share grants7
      individuals
                            6/10/2005
                            
                            
                            29,565
                            
                            
                            $
                            3.57
                            
                            Exercise
      of Director options3
      individuals
                            7/11/2005
                            
                            
                            190,000
                            
                            
                            $
                            1.58
                            
                            conversion
      of Preferred and accrued dividendsBanca
      di Unionale
                            7/11/2005
                            
                            
                            10,000
                            
                            
                            $
                            1.60
                            
                            exercise
      of preferred warrants3
      individuals
                            8/28/2005
                            
                            
                            150,000
                            
                            
                            $
                            1.67
                            
                            conversion
      of Preferred and accrued dividendsJames
      Smith
                            9/7/2005
                            
                            
                            30,000
                            
                            
                            $
                            1.67
                            
                            conversion
      of Preferred and accrued dividends2
      individuals
                            9/28/2005
                            
                            
                            1,050,000
                            
                            
                            $
                            1.69
                            
                            conversion
      of Preferred and accrued dividends2
      individuals
                            various
                            
                            
                            226,900
                            
                            
                            $
                            1.79
                            
                            exercise
      of Series I warrants3
      individuals
                            various
                            
                            
                            91,200
                            
                            
                            $
                            2.40
                            
                            exercise
      of Series III warrants2
      individuals
                            various
                            
                            
                            25,000
                            
                            
                            $
                            1.60
                            
                            exercise
      of Preferred warrantsOfficer
                            10/20/2005
                            
                            
                            446,000
                            
                            
                            $
                            1.00
                            
                            exercise
      of warrants and optionsOfficer
                            10/20/2005
                            
                            
                            25,000
                            
                            
                            $
                            2.00
                            
                            exercise
      of warrants6
      individuals
                            12/1/2005
                            
                            
                            600,000
                            
                            
                            $
                            2.00
                            
                            common
      stock and warrants2005
      Totals
                            
                            
                            
                            3,642,665
                            
                            
                            $
                            1.94




57




2006Description:
                            Date
                            
                            Shares
                            
                            
                            Per share
                              valuation
                            
                            Business reason:2
      individuals
                            4/21/06
                            
                            
                            80,000
                            
                            
                            
                            2.50
                            
                            Common
      stock and warrants issued for cashOfficer
                            4/21/06
                            
                            
                            56,700
                            
                            
                            
                            2.00
                            
                            Exercise
      of non-plan incentive option granted to CEOOfficer
                            4/21/06
                            
                            
                            6,000
                            
                            
                            
                            4.00
                            
                            Unrestricted
      share grant to CTOMega-C
      Trust
                            11/28/06
                            
                            
                            (500,000
                            )
                            
                            
                            2.25
                            
                            Return
      of shares per settlement agreement2006
      Totals
                            
                            
                            
                            (357,300
                            )
                            
                            $
                            2.20





2007Description:
                              Date
                              
                              Shares
                              
                              
                              Per share
                                valuation
                              
                              Business reason:Officer
                              12/01/07
                              
                              
                              1,000
                              
                              
                              
                              2.30
                              
                              Unrestricted
      share grant to VP Mfg Engineering2007
      Totals
                              
                              
                              
                              1,000
                              
                              
                              $
                              2.30




2008Description:
                          Date
                          
                          Shares
                          
                          
                          Per share
                            valuation
                          
                          Business reason:The
      Quercus Trust
                          1/14/2008
                          
                          
                          1,904,762
                          
                          
                          
                          2.10
                          
                          Securities
      purchase agreement1
      individual
                          3/31/2008
                          
                          
                          106,659
                          
                          
                          
                          2.10
                          
                          2007
      Bridge Loan ConversionThe
      Quercus Trust
                          4/08/2008
                          
                          
                          1,904,762
                          
                          
                          
                          2.10
                          
                          Securities
      purchase agreement1
      individuals
                          4/21/2008
                          
                          
                          25,000
                          
                          
                          
                          2.10
                          
                          2007
      Bridge Loan ConversionLichtensteiniche
      Landsbank
                          5/06/2008
                          
                          
                          508,512
                          
                          
                          
                          1.25
                          
                          Series
      A Preferred ConversionsDirector
                          5/29/2008
                          
                          
                          2,000
                          
                          
                          
                          2.10
                          
                          2007
      Bridge Loan ConversionThe
      Quercus Trust
                          6/30/2008
                          
                          
                          4,761,905
                          
                          
                          
                          2.10
                          
                          Securities
      purchase agreementDirector
                          6/30/2008
                          
                          
                          380,952
                          
                          
                          
                          2.10
                          
                          2007
      Bridge Loan Conversion1
      individual
                          8/20/2008
                          
                          
                          520,787
                          
                          
                          
                          1.25
                          
                          Series
      A Preferred Conversion1
      individual
                          9/11/2008
                          
                          
                          41,800
                          
                          
                          
                          1.25
                          
                          Series
      A Preferred ConversionV.P.
      Mfg Engineering
                          01/01/2008-12/01/2008
                          
                          
                          12,000
                          
                          
                          
                          1.85
                          
                          Unrestricted
      share Grant2008
      Totals (as of December 31, 2008)
                          
                          
                          
                          10,169,139
                          
                          
                          $
                          2.01




58




2009Description:
                      Date
                      
                      Shares
                      
                      
                      Per share
                        valuation
                      
                      Business reason:V.P.
      Mfg Engineering
                      01/01/2009-12/01/2009
                      
                      
                      23,000
                      
                      
                      
                      1.55
                      
                      Unrestricted
      share GrantCFO
                      06/16/2009
                      
                      
                      30,000
                      
                      
                      
                      1.41
                      
                      Unrestricted
      share GrantNew
      Energy Fund
                      07/21/2009
                      
                      
                      286,735
                      
                      
                      
                      1.25
                      
                      Series
      A Preferred ConversionsFursa
      Global Event Driven Fund LP
                      11/04/2009
                      
                      
                      862,466
                      
                      
                      
                      1.07
                      
                      Series
      A Preferred ConversionsDirector
                      12/23/2009
                      
                      
                      252,912
                      
                      
                      
                      1.43
                      
                      Senior
      Preferred ConversionDirector
                      12/23/2009
                      
                      
                      431,297
                      
                      
                      
                      1.43
                      
                      Senior
      Preferred Conversion8
      individuals
                      12/23/2009
                      
                      
                      706,735
                      
                      
                      
                      1.43
                      
                      Senior
      Preferred Conversion11
      individuals
                      12/23/2009
                      
                      
                      719,664
                      
                      
                      
                      0.57
                      
                      Common
      stock placement fees48
      investors
                      12/22/2009
                      
                      
                      45,106,052
                      
                      
                      
                      0.57
                      
                      Securities
      purchase agreement, net of 2009 Bridge Loan conversionDirector
                      12/22/2009
                      
                      
                      300,620
                      
                      
                      
                      0.57
                      
                      2009
      Bridge Loan conversion1
      individual
                      12/22/2009
                      
                      
                      350,900
                      
                      
                      
                      0.57
                      
                      2009
      Bridge Loan conversionCTO
                      12/29/2009
                      
                      
                      280,000
                      
                      
                      
                      1.50
                      
                      Unrestricted
      share Grant2009
      Totals (as of December 31, 2009)
                      
                      
                      
                      49,350,381
                      
                      
                      $
                      0.61





Warrants: The
following table provides summary information on warrants outstanding as of
December 31, 2009. The table provides summary information on the various
warrants issued by the Company in private placement transactions; the warrants
exercised to date; the warrants that are presently exercisableand the current exercise
prices of such warrants.




59




2009
                
                
                
                
                
                2008Shares
                
                
                Weighted Average
                  Exercise price
                
                
                Shares
                
                
                Weighted Average
                  Exercise priceWarrants
      outstanding January 1
                
                
                14,278,772
                
                
                $
                1.44
                
                
                
                2,588,391
                
                
                $
                4.39Granted
      during year
                
                
                45,661
                
                
                
                2.00
                
                
                
                12,163,881
                
                
                $
                2.60Exercised
                
                
                -
                
                
                
                0.00
                
                
                
                -
                
                
                
                0.00Lapsed
                
                
                (359,000
                )
                
                
                4.33
                
                
                
                (473,500
                )
                
                $
                2.00Outstanding
      at December 31
                
                
                13,965,433
                
                
                $
                1.36
                
                
                
                14,278,772
                
                
                $
                2.94Weighted
      average years remaining
                
                
                3.1
                
                
                
                
                
                
                
                3.9





As of
December 31, 2009, 1,485,714 of these warrants were classified as derivative
liabilities. Each reporting period the warrants are re-valued and adjusted
through the caption “derivative revaluation” on the statement of
operations.




On
September 22, 2009, we entered into an Amendment to Warrants and Securities
Purchase Agreement with Quercus Trust, amending the January 14, 2008 Warrant and
Securities Purchase Agreement. The Amendment resets the exercise price for
warrants previously issued to Quercus from $2.60 per share to $0.75 per share,
and is reflected in this table by reducing the weighted average exercise price
of warrants outstanding as of January 1, 2009 from $2.94 to $1.44 per
share.  In Amendment No. 2 to the Securities Purchase Agreement
dated December 15, 2009, The Quercus Trust agreed to waive further anti-dilution
rights on its warrants to purchase our common stock below an exercise price
of $0.75 per share. On December 22, 2009 the 1,485,714 warrants issued in
payment of services related to Quercus offering, were reset from $2.60 to $0.57
per share. The reset in the exercise price of the Quercus related warrants
decreased the weighted average exercise price for warrants outstanding at
December 31, 2009 from $2.90 to $1.36 per share




The Board
of Directors on August 21, 2009 approved the issuance of warrants to purchase
not more than 1,600,000 shares of common stock at an exercise price of $2.00 per
share and a term of two years to the C&T Group. On December 31, 2009 these
warrants have not yet been issued pending "mutual understanding" between the
parties.





Registration
Rights





General:
In June 2008 and May 2009, the Company filed resale registration statements for
2,632,700 common shares held by the Quercus Trust and 788,336 of the shares of
common stock held by the Mega-C Trust. On December 22, 2009, in connection with
the execution of the Securities Purchase Agreement , The Quercus Trust agreed
to waive further registration rights on shares owned by The Quercus Trust
that have not yet been registered. See the discussion in the note titled
“Mega-C Power (Mega-C), Mega-C Trust (the Trust), The Taylor
Litigation.”




Warrants: The Company has registered
the resale of the shares of common stock issuable upon exercise of all warrants
that were issued and outstanding in June 2005 and is required to maintain an
effective registration statement until the expiration dates of the warrants. It
is also obligated to file a resale registration statement for the warrants
issued after June 2005. The recently issued warrants generally provide that they
will be exercisable for terms of two to three years after the effective date of
the required registration statements. However there are no cash penalties or
exercise price adjustments associated with registration delays.




Note
8 - Equity Compensation




In
December 2004, FASB issued FASB 123R, “Share-Based Payment (now ASC
718 “Compensation – Stock Compensation”).  On January 1, 2006, the
Company adopted the provisions of FASB 123R using the modified prospective
transition method. Under this method, compensation expense is recorded for all
stock based awards granted after the date of adoption and for the unvested
portion of previously granted awards that remain outstanding as of the beginning
of the adoption.  Under ASC 718, employee-compensation expense related
to stock based payments is recorded over the requisite service period based on
the grant date fair value of the awards.




60




Prior to
the adoption of FASB 123R, the Company accounted for employee stock options
using the intrinsic value method in accordance with APB 25. Accordingly, no
compensation expense was recognized for stock options issued to employees as
long as the exercise price was greater than or equal to the market value of the
common stock at the date of grant. In accordance with FASB 123, the Company
disclosed the summary of pro forma effects to reported net loss as if the
Company had elected to recognize compensation costs based on the fair value of
the awards at the grant date.





The
Company’s accounting policy for equity instruments issued to consultants and
vendors in exchange for goods and services follows the provisions of ASC 505-50
“Equity-Based Payments to
Non-Employees” (formerly EITF 96-18, “Accounting for Equity Instruments
That are Issued to Other Than Employees for Acquiring, or in Conjunction with
Selling, Goods or Services ” and EITF 00-18, “Accounting Recognition for Certain
Transactions Involving Equity Instruments granted to Other Than
Employees.”).  The measurement date for fair value of the
equity instruments is determined by the earlier of (i) the date at which
commitment for performance by the vendor or consultant is reached or (ii) the
date at which the consultant or vendor’s performance is complete. In the case of
equity instruments issued to consultants, the fair value of the equity
instrument is recognized over the term of the consulting
agreement.


The
compensation cost that has been charged against income for options granted was
$411,204 for the year ended December 31, 2009. The impact of these expenses to
basic and diluted loss per share was approximately $0.02 per share during the
year. For stock options issued as non-qualified stock options, a tax deduction
is not allowed until the options are exercised. The amount of this deduction
will be the difference between the fair value of the Company’s common stock and
the exercise price at the date of exercise. Accordingly, there is a deferred tax
asset recorded for the tax effect of the financial statement expense recorded.
The tax effect of the income tax deduction in excess of the financial statement
expense will be recorded as an increase to additional paid-in capital. Due to
the uncertainty of the Company’s ability to generate sufficient taxable income
in the future to utilize the tax benefits of the options granted, the Company
has recorded a valuation allowance to reduce gross deferred tax assets to zero.
As a result, for the year ended December 31, 2009, there is no income tax
expense impact from recording the fair value of options granted. There is no tax
deduction allowed by the Company for incentive stock options.




The
Company has two stockholder approved equity compensation plans and occasionally
enters into employment and other contracts that provide for equity compensation
arrangements other than those contemplated by the stockholder approved plans.
The following sections summarize the Company’s equity compensation
arrangements.




Incentive Stock
Plan Approved by Stockholders: The Company’s stockholders have adopted an
incentive stock plan for the benefit of its employees, consultants and advisors.
Under the terms of the original plan, the Company was authorized to grant
incentive awards for up to 1,000,000 shares of common stock. At the Company’s
2005 annual meeting, its shareholders increased the authorization under the
incentive stock plan to 2,000,000 shares.




The
incentive stock plan authorizes a variety of awards including incentive stock
options, non-qualified stock options, shares of restricted stock, shares of
phantom stock and stock bonuses. In addition, the plan authorizes the payment of
cash bonuses when a participant is required to recognize income for federal
income tax purposes because of the vesting of shares of restricted stock or the
grant of a stock bonus.





The plan
authorizes the grant of incentive awards to full-time employees of the Company
who are not eligible to receive awards under the terms of their employment
contract or another specialty plan. The plan also authorizes the grant of
incentive awards to directors who are not eligible to participate in the
Company’s outside directors’ stock option plan, independent agents, consultants
and advisors who have contributed to the Company’s success.




The
Compensation Committee administers the plan. The Committee has absolute
discretion to decide which employees, consultants and advisors will receive
incentive awards, the type of award to be granted and the number of shares
covered by the award. The committee also determines the exercise prices,
expiration dates and other features of awards.




The
exercise price of incentive stock options must be equal to the fair market value
of such shares on the date of the grant or, in the case of incentive stock
options granted to the holder of more than 10% of the Company’s common stock, at
least 110% of the fair market value of such shares on the date of the grant. The
maximum exercise period for incentive stock options is ten years from the date
of grant, or five years in the case of an individual who owns more than 10% of
the Company’s common stock. The aggregate fair market value determined at the
date of the option grant, of shares with respect to which incentive stock
options are exercisable for the first time by the holder of the option during
any calendar year, shall not exceed $100,000.




61





The
following awards have been granted under the Plan since its
inception:




In
February 2004, Igor Filipenko, a Director of the Company at that time, was
granted options to purchase 6,300 shares of common stock at a price of $3.20 per
share. In June 2004, Mr. Filipenko was granted options to purchase 10,800 shares
of common stock at a price of $5.60 per share. The options are fully vested and
may be exercised at any time during the five-year period commencing one year
after the date of grant. The market value of the Company stock at the date of
grant was less than the exercise price; therefore there was no intrinsic value
in accordance with APB 25. Options for 7,200 shares were cancelled in April 2005
after Mr. Filipenko was issued additional options in March 2005 as part of the
offering to the former employees of C&T discussed below.




In
February 2004, John Petersen, a Director of the Company (and general corporate
counsel), and Kirk Tierney, each were granted options to purchase 6,300 shares
of common stock at a price of $3.20 per share. In June 2004, Messrs. Petersen
and Tierney were each granted options to purchase 3,600 shares of common stock
at a price of $5.60 per share. The options are fully vested and may be exercised
at any time during the five-year period commencing one year after the date of
grant. The market value of the Company stock at the date of grants was less than
the exercise price; therefore there was no intrinsic value in accordance with
APB 25.




In
February 2004, an advisor to the board was granted an option to purchase 6,300
shares of common stock at a price of $3.20 per share as compensation for
services. In June 2004, Mr. the advisor was granted options to purchase 3,600
shares of common stock at a price of $5.60 per share. The options are fully
vested and may be exercised at any time during the five-year period commencing
one year after the date of grant. The options were valued at $17,067 using the
Black-Scholes-Merton option pricing model and were included as expense in
2004.




In
November 2004, the Company’s President and Chief Operating Officer at that time,
Charles Mazacatto, was granted options to purchase 6,250 shares of common stock
at an exercise price of $3.20. This option vested in 2004 and is exercisable
until November 2010. The market value of the Company stock at the date of grant
was less than the exercise price; therefore there was no intrinsic value in
accordance with APB 25.




In March
2005, the Compensation Committee authorized stock bonuses to the former
employees of C&T for an aggregate of 219,000 shares of common stock. These
stock grants are fully vested and unrestricted, subject to compliance with the
Company’s insider trading policies. The fair value of these shares, as
determined by the Company’s stock price on the date of grant, amounted to
$565,202 and was recorded as compensation during the year ended December 31,
2005.




In April
2005, the former employees of C&T were granted options to purchase an
aggregate of 744,500 shares of common stock at an exercise price of $2.50. These
options vest at a rate of 20% per year beginning in April 2006. The market value
of the Company stock at the date of grant was less than the exercise price which
resulted in no intrinsic value in accordance with APB 25. On January 1, 2006,
the Company adopted the provisions of FASB 123R as noted above which resulted in
the Company recording compensation expense of $86,954 during the year ended
December 31, 2006. Various options lapsed when several individuals terminated
their employment with the Company in 2005 and 2006. During the years ended
December 31, 2005 and 2006, an aggregate of 157,700 and 454,000 options,
respectively, forfeited unvested as a result of these terminations.





In
September 2005, the Compensation Committee awarded 6,000 shares of restricted
common stock to the Company’s Chief Technical Officer, Edward Buiel, pursuant to
his 2005 employment agreement, which were valued at $24,000 on the date of grant
and became fully vested in April 2006. The Company recorded $8,000 and $16,000
of compensation in 2005 and 2006, respectively, related to this
award.




In
December 2006, the Company issued 250,000 shares of restricted common stock to
the Company’s Chief Technical Officer, Edward Buiel, pursuant to his 2006
employment agreement, which were valued at $937,500 on the date of grant and
will become fully vested on December 2009. The Company will recognize this as
compensation over the requisite service period. No compensation expense was
recorded for the year ended December 31, 2006.




62




In
December 2007, the Company’s Vice-President of Manufacturing Engineering, Robert
Nelson, was granted 36,000 shares of restricted common stock pursuant to his
2007 employment agreement which were valued at $82,800 on the date of grant. The
shares vest at a rate of 1,000 shares per month, with provision for immediate
vesting based on significant changes in the relative ownership of the company.
The Company will recognize this as compensation over the 2 year employment
contract, with $3,450 of compensation expense recorded for the year ended
December 31, 2007.





In June
2008, the Company issued 80,000 shares of restricted common stock to the
Company’s Chief Technical Officer, Edward Buiel, pursuant to his 2008 employment
agreement, which were valued at $143,500 on the date of grant. 30,000 will vest
on December 29, 2009, and 50,000 will vest on May 31, 2011. The Company will
recognize this as compensation over the requisite service period. $35,063 in
compensation expense was recorded for the year ended December 31,
2008.




In June
2008, the Company issued 90,000 shares of restricted common stock to the
Company’s Chief Financial Officer, Donald Hillier, pursuant to his 2008
employment agreement, which were valued at $166,500 on the date of grant, which
will vest in equal 30,000 share amounts on June 16 of each of 2009,
2010 and 2011.  The Company will recognize this as compensation over the
requisite service period. $30,062 in compensation expense was recorded for the
year ended December 31, 2008.





In June
2008, the Company issued 50,000 shares of restricted common stock to an
employee, pursuant to his 2008 employment agreement, which were valued at
$92.500 on the date of grant, which cliff vest on June 15, 2011.  The
Company will recognize this as compensation over the requisite service period.
$16,701 in compensation expense was recorded for the year ended December 31,
2008.




Outside
Directors' Stock Option Plan Approved by Stockholders: The Company’s
stockholders have adopted an outside directors' stock option plan for the
benefit of its non-employee directors in order to encourage their continued
service as directors. Under the terms of the original plan, the Company was
authorized to grant incentive awards for up to 125,000 shares of common stock.
At the 2005 annual meeting, the Company’s shareholders increased the
authorization under the incentive stock plan to 500,000 shares.




Each
eligible director who is, on or after the effective date, appointed to fill a
vacancy on the Board or elected to serve as a member of the Board may
participate in the plan. Each eligible director shall automatically be granted
an option to purchase the maximum number of shares having an aggregate fair
market value on the date of grant of twenty thousand dollars ($20,000). The
option price of the stock subject to each option is required to be the fair
market value of the stock on its date of grant. Options generally expire on the
fifth anniversary of the date of grant. Any option granted under the plan shall
become exercisable in full on the first anniversary of the date of grant,
provided that the eligible director has not voluntarily resigned or been removed
"for cause" as a member of the Board of Directors on or prior to the first
anniversary of the date of grant (qualified option). Any qualified option shall
remain exercisable after its first anniversary regardless of whether the
optionee continues to serve as a member of the Board.




The
following awards have been granted under the Plan since its
inception:




During
the year ended December 31, 2004, the Company issued 54,000 5-year options to
four of its directors vesting in one year from the date of issuance. The market
value of the Company stock at the date of grant was less than the exercise price
which resulted in no intrinsic value in accordance with APB 25. During the year
ended December 31, 2005, these directors waived an aggregate of $105,542 in
accrued compensation as full payment of the exercise price of 29,565 options. An
additional 14,400 options were forfeited in 2005.




During
the year ended December 31, 2005, the Company issued 70,000 5-year options to
five of its directors vesting 1/3 per year over three years from the date of
grant. The market value of the Company stock at the date of grant was less than
the exercise price which resulted in no intrinsic value in accordance with APB
25. On January 1, 2006, the Company adopted the provisions of FASB 123R as noted
above and recorded compensation of $41,024 during the year ended December 31,
2006.




During
the year ended December 31, 2006, the Company issued 60,000 5-year options to
two of its directors vesting 1/3 per year over the next three years. These
options are exercisable at a price of $2.00 per share, expiring five years from
vest date and are valued at $71,680 utilizing the Black-Scholes-Merton option
pricing model, of which $20,230 was expensed in 2006.





During
the year ended December 31, 2008, the Company issued 179,555 5-year options to
five of its directors. Of this amount 5,555 with an exercise price of $3.60 per
share vested in November 2008 and the remainder vest 1/3 per year over the next
three years. These options are exercisable at a price of $1.38 per share,
expiring five years from vest date and are valued at $130,150 utilizing the
Black-Scholes-Merton option pricing model, of which $16,230 was expensed in
2008.


63





During
the year ended December 31, 2009, the Company issued 128,565 5-year options to
three of its directors, vesting 1/3 per year over the next three years. These
options are exercisable at a price of $1.40 per share, expiring five years from vest date and are valued at
$100,188 utilizing the Black-Scholes-Merton option pricing model, of which
$29,916 was expensed in 2009.




Non-plan Equity
Incentives Not Approved by Stockholders: The Company has
issued 36,000, 789,500, 228,000, 1,131,000, 300,000 and 629,300 stock purchase
options in the fiscal years ended December 31, 2009, 2008, 2007, 2006, 2005 and
2004, respectively, to officers, employees, attorneys and consultants in
connection with contractual agreements that do not reduce the shares available
under the shareholder’s approved plans. The following paragraphs summarize these
contractual stock options.




In
January 2004, members of the law firm of Fefer, Petersen & Cie, general
corporate counsel (of which one member was a director of the Company at the
time) were granted two-year contractual options to purchase 189,300 shares of
common stock at a price of $2.00 per share as partial compensation for services
rendered, valued at $68,296. As represented in the note captioned “Stockholders’
Equity”, these members also received 116,700 warrants as consideration of
pre-merger Tamboril debt (the amount cited in “Stockholders’ Equity” is actually
233,400 because another party received the same number of warrants for a total
of 233,400 warrants). In August 2004, $1.00 of the exercise price of the total
306,000 options and warrants owned by these members was considered paid in
advance in consideration of unbilled legal services provided by the firm. The
Company recorded $306,000 related to this reduction. All of the warrants and
options were exercised in the fourth quarter of 2005, however; $306,000 of the
amount is included in stock subscription receivable as of December 31, 2005 and
was received in 2006.




In July
2004, the Company’s President and Chief Operating Officer at that time, Charles
Mazzacato, was granted a contractual option to purchase 240,000 shares of common
stock at a price of $4.00 per share. This option vests on a monthly basis at the
rate of 60,000 shares per year commencing July 31, 2005 and is exercisable for
five years after each vesting date. The market value of the Company stock at the
date of grant was greater than the exercise price which resulted in a total
intrinsic value of $180,000. In accordance with APB 25 the Company expensed the
intrinsic value over the vesting period which resulted in expense of $18,750 and
$45,000 during the years ended December 31, 2004 and 2005, respectively. On
January 1, 2006, the Company adopted the provisions of FASB 123R as noted above
and recorded compensation of $124,364 during the year ended December 31, 2006.
During the year ended December 31, 2006 the options were forfeited as a result
of his termination of employment from the Company in 2006.




In July
2004, the Company’s Chief Financial Officer at that time, Peter Roston, was
granted a contractual option to purchase 200,000 shares of common stock at a
price of $4.00 per share. This option will vest on a monthly basis at the rate
of 50,000 shares per year commencing July 31, 2005 and is exercisable for five
years after each vesting date. The market value of the Company stock at the date
of grant was greater than the exercise price which resulted in a total intrinsic
value of $150,000. In accordance with APB 25 the Company has expensed the
intrinsic value over the vesting period which resulted in expense of $15,625 and
$37,500 during the years ended December 31, 2004 and 2005, respectively. On
January 1, 2006, the Company adopted the provisions of FASB 123R as noted above
and recorded compensation of $138,182 during the year ended December 31, 2006.
During the year ended December 31, 2006 the options were forfeited as a result
of his termination of employment from the Company in 2006.




In April
2005, the Company’s Chief Executive Officer, Thomas Granville, was granted a
contractual option to purchase 180,000 shares of common stock at a price of
$2.50 per share. This option vests at the rate of 7,500 shares per month
commencing May 1, 2005 and is exercisable for five years after each vesting
date. The market value of the Company stock at the date of grant was less than
the exercise price which resulted in no intrinsic value in accordance with APB
25. On January 1, 2006, the Company adopted the provisions of FASB 123R as noted
above and recorded compensation of $112,500 during the year ended December 31,
2006.




In April
2005, a European financial advisor was granted a contractual option to purchase
30,000 shares of common stock at a price of $2.50 per share. Options for an
aggregate of 20,000 shares vested during the year ended December 31, 2005 and
will be exercisable for two years. On December 31, 2005, a total of 10,000
unvested options were forfeited when the advisory agreement was terminated. The
options were valued at $35,998 using the Black-Scholes-Merton option pricing
model and included as expense in 2005.




In
September 2005, the Company’s Chief Technical Officer, Edward Buiel, was granted
a contractual option to purchase 90,000 shares of common stock at a price of
$4.00 per share. This option vests at the rate of 2,500 shares per month
commencing October 2005 and is exercisable for five years after each vesting
date. The market value of the Company stock at the date of grant was less than
the exercise price which resulted in no intrinsic value in accordance with APB
25. On January 1, 2006, the Company adopted the provisions of FASB 123R as noted
above and recorded compensation of $68,100 during the year ended December 31,
2006.


64





In
February 2006, the Company’s Chief Executive Officer, Thomas Granville, was
granted an option to purchase 500,000 shares of common stock at an exercise
price of $6.00. Of this total 300,000 options vested immediately and the balance
is expected to vest, subject to the attainment of certain specified objectives,
over the next one to three years. These options are valued at $300,187 utilizing
the Black-Scholes-Merton option pricing model with $259,027 of compensation
recorded in 2006.




In
February 2006, the Company’s, Chief Technical Officer, Edward Buiel, was granted
an option to purchase 35,000 shares of common stock at an exercise price of
$6.00. Of this total 10,000 options vested immediately and the balance is
expected to vest, subject to the attainment of certain specified objectives,
over the next two to three years. These options are valued at $20,994 utilizing
the Black-Scholes-Merton option pricing model with $13,330 of compensation
recorded in 2006.




In
February 2006, members and affiliates of the law firm of Fefer, Petersen &
Cie, general corporate counsel (of which one member was a director of the
Company at the time) were granted an option to purchase 360,000 shares of common
stock at an exercise price of $6.00. Of this total 240,000 options vested
immediately and the balance will vest at the rate of 10,000 shares per month
during the year ended December 31, 2006. These options are valued at $193,449
utilizing the Black-Scholes-Merton option pricing model and are recorded as
legal expense in 2006.




In
February 2006, the Company’s external bankruptcy counsel, Cecilia Rosenauer, was
granted an option to purchase 15,000 shares of common stock at an exercise price
of $6.00. The options vested on the effective date of Mega-C’s Chapter 11 plan
of reorganization, which took place in November 2006. These options are valued
at $2,483 utilizing the Black-Scholes-Merton option pricing model and are
recorded as legal expense in 2006.




In March
2006, two employees were granted options to purchase a total of 24,000 shares of
common stock at an exercise price of $4.00 and $6.00. The options vest at a rate
of 2,500 per month over the first 6 months and 1,500 per month thereafter. These
options are valued at $28,257 utilizing the Black-Scholes-Merton option pricing
model with $24,408 of compensation recorded in 2006.




In
December 2006, the Company’s Chief Technical Officer, Edward Buiel, was granted
a contractual option to purchase an additional 100,000 shares of our common
stock at a price of $3.75 per share. A total of 50,000 options will vest on
December 29, 2009 and the remaining 50,000 will vest on December 29,
2010. The options will be exercisable for a period of six years from the
vesting date. These options are valued at $267,372, utilizing the
Black-Scholes-Merton option pricing model with $6,481 of compensation recorded
in 2006.




In
February 2006, a consultant, Trey Fecteau, was granted an option to purchase
97,000 shares of common stock at an exercise price of $4.00. The options vested
upon completion of contractual services in December 2006. These options are
valued at $150,702 utilizing the Black-Scholes-Merton option pricing model. This
amount reduced the proceeds of the Series A Preferred Stock offering in
2006.




In
January 2007, Walker Wainwright, a director of the Company, was granted an
option to purchase 40,000 shares of common stock at an exercise price of $5.00
as compensation for services related to due diligence, negotiation and sale of
the 2006 Series A Preferred Stock offering. These three-year options were
immediately vested on the date of grant, and are valued at $52,230 utilizing the
Black-Scholes-Merton option pricing model and are recorded as offering costs in
2007.





In August
2007, the Company’s Chief Financial Officer at that time, Andrew Carr Conway,
Jr., was granted a contractual option to purchase 80,000 shares of common stock
at an exercise price of $4.50. 20,000 vested immediately upon contract inception
and the remainder vest at a rate of 10,000 per month over the life of his
six-month employment contract. These two-year options are valued at $37,356
utilizing the Black-Scholes-Merton option pricing model with $24,904 recorded as
compensation in 2007.




In
December 2007, the Company’s Vice-President of Manufacturing Engineering, Robert
Nelson, was granted a contractual option to purchase 108,000 shares of common
stock at an exercise price of $5.00. The options vest at a rate of 3,000 per
month over a three year period, but are being amortized over the term of his two
year employment contract. These five-year options are valued at $108,504
utilizing the Black-Scholes-Merton option pricing model with $4,521 recorded as
compensation in 2007.


65





In March
and June 2008, the Company’s Chief Financial Officer at that time, Andrew Carr
Conway, Jr., was granted a contractual option to purchase 40,000 shares of
common stock at an exercise price of $4.50. All of these options were vested by
June 2008. These options are valued at $20,625 utilizing the
Black-Scholes-Merton option pricing model with $20,625 recorded as compensation
in 2008.





In June
2008, our Chief Executive Officer, Thomas Granville, was granted a contractual
option to purchase an additional 90,000 shares of our common stock at a price of
$2.50 per share. The options vest prorated over the 24-month term of his
contract, and are exercisable for a period of five years from the vesting date.
These options are valued at $79,872, utilizing the Black-Scholes-Merton option
pricing model with $23,296 of compensation expected to be recorded in
2008.





In June
2008, our Chief Technical Officer, Edward Buiel, was granted a contractual
option to purchase an additional 100,000 shares of our common stock at a price
of $2.50 per share. The options cliff vest on May 31, 2011, and are exercisable
for a period of five years from the vesting date. These options are valued at
$95,436, utilizing the Black-Scholes-Merton option pricing model with $18,557 of
compensation expected to be recorded in 2008.





In June
2008, our Chief Financial Officer at that time, Donald Hillier, was granted
an option to purchase 180,000 shares of our common stock. The exercise price of
the option is $2.50 per share and the option vests at the rate of 5,000 shares
per month through the term of the Employment Agreement and are exercisable for a
period of 5 years from the vesting date. These options are valued at $179,244,
utilizing the Black-Scholes-Merton option pricing model with $34,853 of
compensation expected to be recorded in 2008.





In June
2008, three employees were granted contractual options to purchase 200,000
shares of our common stock at a price of $2.50 per share. 5,000 of these options
vested in June upon execution of the employment contracts, with the balance
cliff vesting on June 15, 2011, and are exercisable for a period of three years
from the vesting date. These options are valued at $165,041, utilizing the
Black-Scholes-Merton option pricing model with $34,222 of compensation expected
to be recorded in 2008.





In
December 2008, seven employees were granted contractual options to purchase an
additional 179,500 shares of our common stock at a price of $2.50 per share.
43,500 of these options vested in December upon execution of the employment
contracts, with the balance vesting over the life of these contracts and are
exercisable for a period of three years from the vesting date. These options are
valued at $36,171, utilizing the Black-Scholes-Merton option pricing model with
$5,330 of compensation recorded in 2008.





In
January 2009 the Company granted a total of 36,000 contractual stock options to
an employee at an exercise price of $2.50 per share. 6,000 of these options
vested in January 2009 upon execution of the employment contract, with the
balance vesting at a rate of 1,000 per month, and are exercisable for a period
of five years from vesting date. These options are valued at $14,507, utilizing
the Black-Scholes-Merton model with $4,835 of expense recorded during
2009.





The
Company uses the Black-Scholes-Merton Option Pricing Model to estimate the fair
value of awards on the measurement date using the weighted average assumptions
noted in the following table:




Year
                      
                      Interest Rate
                      
                      
                      Dividend Yield
                      
                      
                      Expected Volatility
                      
                      
                      Expected Life2004
                      
                      
                      3.8
                      %
                      
                      
                      0.0
                      %
                      
                      
                      59.1
                      %
                      
                      60
      months2005
                      
                      
                      4.0
                      %
                      
                      
                      0.0
                      %
                      
                      
                      52.0
                      %
                      
                      100
      months2006
                      
                      
                      4.7
                      %
                      
                      
                      0.0
                      %
                      
                      
                      53.6
                      %
                      
                      45
      months2007
                      
                      
                      3.9
                      %
                      
                      
                      0.0
                      %
                      
                      
                      54.4
                      %
                      
                      62
      months2008
                      
                      
                      2.8
                      %
                      
                      
                      0.0
                      %
                      
                      
                      51.4
                      %
                      
                      58
      months2009
                      
                      
                      2.0
                      %
                      
                      
                      0.0
                      %
                      
                      
                      53.0
                      %
                      
                      80
      months





Expected
volatilities are calculated based on the historical volatility of the Company’s
stock since its listing on the public markets. Management has determined that it
cannot reasonably estimate a forfeiture rate given the insufficient amount of
time and activity of share option exercise and employee termination patterns.
The expected life of options represents the period of time that options granted
are expected to be outstanding was determined using the contractual term. The
risk-free interest rate for periods within the expected life of the option is
based on the interest rate for a similar time period of a U.S. Treasury note in
effort on the date of the grant.


66




The
following table provides consolidated summary information on the Company’s
equity compensation plans for the years ended December 31, 2004, 2005, 2006,
2007, 2008, and 2009.




2004Weighted AverageAll Plan & Non-
                              Plan Compensatory Options
                            
                            Number of
                              Options
                            
                            
                            Exercise
                            
                            
                            Fair Value
                            
                            
                            Remaining
                              Life (years)
                            
                            
                            Aggregate
                              Intrinsic
                              ValueOptions outstanding at December31,2003
                            
                            
                            -
                            
                            
                            $
                            0.00
                            
                            
                            $
                            $0.00Granted
                            
                            
                            736,350
                            
                            
                            $
                            3.53
                            
                            
                            $
                            $2.87Exercised
                            
                            
                            -
                            
                            
                            $
                            0.00
                            
                            
                            $
                            $0.00Forfeited
      or lapsed
                            
                            
                            -
                            
                            
                            $
                            0.00
                            
                            
                            $
                            $0.00Options
      outstanding at December 31,2004
                            
                            
                            736,350
                            
                            
                            $
                            3.53
                            
                            
                            $
                            $2.87
                            
                            
                            
                            6.34




2005Weighted AverageAll Plan & Non-
                                                              PlanCompensatory Options
                                                            
                                                            Number of
                                                              Options
                                                            
                                                            
                                                            Exercise
                                                            
                                                            
                                                            Fair Value
                                                            
                                                            
                                                            Remaining
                                                              Life (years)
                                                            
                                                            
                                                            Aggregate
                                                              Intrinsic
                                                              ValueOptions
      outstanding at December 31,2004
                                                            
                                                            
                                                            736,350
                                                            
                                                            
                                                            $
                                                            3.53
                                                            
                                                            
                                                            $
                                                            $2.87Granted
                                                            
                                                            
                                                            1,254,500
                                                            
                                                            
                                                            $
                                                            2.48
                                                            
                                                            
                                                            $
                                                            $1.34Exercised
                                                            
                                                            
                                                            (358,865
                                                            )
                                                            
                                                            $
                                                            1.65
                                                            
                                                            
                                                            $
                                                            $2.32Forfeited
      or lapsed
                                                            
                                                            
                                                            (182,100
                                                            )
                                                            
                                                            $
                                                            3.04
                                                            
                                                            
                                                            $
                                                            $1.44Options
      outstanding at December 31,2005
                                                            
                                                            
                                                            1,449,885
                                                            
                                                            
                                                            $
                                                            3.12
                                                            
                                                            
                                                            $
                                                            $1.86
                                                            
                                                            
                                                            
                                                            7.73




2006Weighted AverageAll Plan & Non-
                  Plan Compensatory Options
                
                Number of
                  Options
                
                
                Exercise
                
                
                Fair Value
                
                
                Remaining
                  Life (years)
                
                
                Aggregate
                  Intrinsic
                  ValueOptions
      outstanding at December 31,2005
                
                
                1,449,885
                
                
                $
                3.12
                
                
                $
                1.86Granted
                
                
                1,191,000
                
                
                $
                5.42
                
                
                $
                0.82Exercised
                
                
                -
                
                
                $
                0.00
                
                
                $
                0.00Forfeited
      or lapsed
                
                
                (894,000
                )
                
                $
                3.24
                
                
                $
                1.94Options
      outstanding at December 31,2006
                
                
                1,746,885
                
                
                $
                4.65
                
                
                $
                1.035
                
                
                
                3.70
                
                
                $
                634,903Options
      exercisable at December 31,2006
                
                
                1,192,385
                
                
                $
                5.11
                
                
                $
                0.97
                
                
                
                2.90
                
                
                $
                254,903





2007Weighted AverageAll Plan & Non-Plan Compensatory
                  Options
                
                Number of
                  Options
                
                
                Exercise
                
                
                Fair Value
                
                
                Remaining
                  Life
                  (years)
                
                
                Aggregate
                  Intrinsic
                  ValueOptions
      outstanding at December 31,2006
                
                
                1,746,885
                
                
                $
                4.65
                
                
                $
                1.03Granted
                
                
                228,000
                
                
                $
                4.82
                
                
                $
                0.87Exercised
                
                
                -
                
                
                $
                0.00
                
                
                $
                0.00Forfeited
      or lapsed
                
                
                (124,000
                )
                
                $
                2.50
                
                
                $
                1.14Options
      outstanding at December 31,2007
                
                
                1,850,885
                
                
                $
                4.81
                
                
                $
                1.00
                
                
                
                1.5
                
                
                $
                18,000Options
      exercisable at December 31,2007
                
                
                1,442,385
                
                
                $
                4.88
                
                
                $
                0.93
                
                
                
                2.0
                
                
                $
                6,000





67





2008Weighted AverageAll Plan & Non-Plan Compensatory
                  Options
                
                Number of
                  Options
                
                
                Exercise
                
                
                Fair Value
                
                
                Remaining
                  Life
                  (years)
                
                
                Aggregate
                  Intrinsic
                  ValueOptions
      outstanding at December 31,2007
                
                
                1,850,885
                
                
                $
                4.81
                
                
                $
                1.00Granted
                
                
                969,055
                
                
                $
                2.38
                
                
                $
                0.73Exercised
                
                
                -
                
                
                $
                0.00
                
                
                $
                0.00Forfeited
      or lapsed
                
                
                -
                
                
                $
                0.00
                
                
                $
                0.00Options
      outstanding at December 31,2008
                
                
                2,819,940
                
                
                $
                3.98
                
                
                $
                0.91
                
                
                
                3.1
                
                
                $
                0Options
      exercisable at December 31,2008
                
                
                1,831,690
                
                
                $
                4.75
                
                
                $
                0.90
                
                
                
                1.4
                
                
                $
                0





2009Weighted AverageAll Plan & Non-Plan Compensatory
                  Options
                
                Number of
                  Options
                
                
                Exercise
                
                
                Fair Value
                
                
                Remaining
                  Life
                  (years)
                
                
                Aggregate
                  Intrinsic
                  ValueOptions
      outstanding at December 31,2008
                
                
                2,819,940
                
                
                $
                3.98
                
                
                $
                0.91Granted
                
                
                164,565
                
                
                $
                1.64
                
                
                $
                0.70Exercised
                
                
                -
                
                
                $
                -
                
                
                $
                -Forfeited
      or lapsed
                
                
                (1,101,035)
                
                
                $
                5.71
                
                
                $
                0.68Options
      outstanding at December 31, 2009
                
                
                1,883,470
                
                
                $
                2.77
                
                
                $
                1.02
                
                
                
                4.1
                
                
                $
                51,890Options
      exercisable at December 31, 2009
                
                
                1,077,155
                
                
                $
                3.16
                
                
                $
                1.14
                
                
                
                2.9
                
                
                $
                10,440




The
following table summarizes the status of the Company’s non-vested
options:





All non-vested stock options as of December 31, 2009
                
                Shares
                
                
                Fair ValueOptions
      subject to future vesting at December 31,2008
                
                
                988,250
                
                
                $
                0.93Options
      granted
                
                
                164,565
                
                
                $
                0.70Options
      forfeited or lapsed
                
                
                -
                
                
                $
                0.00Options
      vested
                
                
                (346,500
                )
                
                $
                0.96Options
      subject to future vesting at December 31,2009
                
                
                806,315
                
                
                $
                0.87





As of
December 31, 2009, there was $387,767 of unrecognized compensation related to
non-vested options. The Company expects to recognize the cost over a weighted
average period of 1.1 year. The total fair value of options vested during the
year ended December 31, 2009 was $334,201 ($300,061 during the year ended
December 31, 2008).





Note 9—Earnings/Loss Per
Share




Basic
earnings per share is computed by dividing income available to common
shareholders (the numerator) by the weighted-average number of common shares
outstanding (the denominator) for the period. Diluted earnings per share are
computed by assuming that any dilutive convertible securities outstanding were
converted, with related preferred stock dividend requirements and outstanding
common shares adjusted accordingly. It also assumes that outstanding common
shares were increased by shares issuable upon exercise of those stock options
for which market price exceeds the exercise price, less shares which could have
been purchased by us with the related proceeds. In periods of losses, diluted
loss per share is computed on the same basis as basic loss per share as the
inclusion of any other potential shares outstanding would be
anti-dilutive.





Had the
Company recorded income applicable to common shareholders for the periods ended
December 31, 2003, 2004, 2005, 2006, 2007, 2008, and 2009, weighted-average
number of common shares outstanding would have increased by 785,897, 1,386,612,
2,970,730, 2,135,938, 8,975,643, 9,566,738 and 15,825,589 respectively, for the
fiscal years, reflecting the addition of dilutive securities in the calculation
of diluted earnings per share. The increase in weighted average common shares
for the cumulative period since inception (September 18, 2003 to December 31,
2009) is 7,248,564 shares.


68




Note
10 — Income Taxes Expense (Benefit)




Following
is a summary of the components giving rise to the income tax expense (benefit)
for the periods ended December 31, 2009 and 2008.





Currently
      payable:
                    
                    2009
                    
                    
                    2008Federal
                    
                    $
                    -
                    
                    
                    $
                    -State
                    
                    
                    -
                    
                    
                    
                    (79,170)Foreign
                    
                    
                    -
                    
                    
                    
                    -Total
      currently payable
                    
                    
                    -
                    
                    
                    
                    (79,170)Deferred:Federal
                    
                    
                    (2,890,000)
                    
                    
                    
                    2,477,000State
                    
                    
                    (603,000)
                    
                    
                    
                    821,000Foreign
                    
                    
                    (280,000)
                    
                    
                    
                    (404,000)Total
      deferred
                    
                    
                    (3,773,000)
                    
                    
                    
                    2,894,000Less
      increase in allowance
                    
                    
                    3,773,000
                    
                    
                    
                    (2,894,000
                    )Net
      deferred
                    
                    
                    
                    
                    
                    
                    -Total
      income tax expense (recovery)
                    
                    $
                    -
                    
                    
                    $
                    (79,170)




Individual
components giving rise to the deferred tax asset are as follows:




2009
                
                
                2008Future
      tax benefit arising from net operating loss carry forwards
                
                $
                11,502,000
                
                
                $
                7,927,000Future
      tax benefit arising from available tax credits
                
                
                1,035,000
                
                
                
                734,000Future
      tax benefit arising from options/warrants issued for
    Services
                
                
                665,000
                
                
                
                775,000Other
                
                
                78,000
                
                
                
                37,000Total
                
                
                13,280,000
                
                
                
                9,473,000Less
      valuation allowance
                
                
                (13,280,000)
                
                
                
                (9,473,000
                )Net
      deferred
                
                $
                -
                
                
                $
                -





The
components of pretax net loss are as follows:




2009
                
                
                2008United
      States
                
                $
                (14,574,274)
                
                
                $
                (9,538,115
                )Foreign
                
                
                (4,153)
                
                
                
                (35,714
                )$
                (14,578,427)
                
                
                $
                (9,573,829
                )




The
Company has net operating loss carry forwards of approximately $24,800,000 and
$2,800,000 available to reduce future income taxes in United States and Canada,
respectively. The United States carry forwards expire at various dates between
2024 and 2029. The Canadian carry forwards expire at various dates between 2010
and 2029. The Company also has generated Canadian tax credits related to
research and development activities.  The credit, amounting to
$734,000, is available to offset future taxable income in Canada and expires at
various dates between 2024 and 2026. The Company has adopted FASB ASC 740 (Prior
Authoritative Literature: SFAS No. 109, Accounting for Income Taxes), which
provides for the recognition of a deferred tax asset based upon the value
certain items will have on future income taxes and management's estimate of the
probability of the realization of these tax benefits. The Company has determined
it more likely than not that these timing differences will not materialize and
have provided a valuation allowance against the entire net deferred tax asset.
The utilization of NOL and tax credit carry forwards from Tamboril prior to the
reorganization may be subject to a substantial annual limitation due to the
ownership change limitations provided by the Internal Revenue Code of 1986, as
amended and similar state provisions. Accordingly, these amounts have not been
included in the gross deferred tax asset number above. In addition, due to
equity transactions that have occurred subsequent to the reorganization with
Tamboril, the utilization of NOL carry forwards may be subject to further change
in control limitations that generally restricts the utilization of the NOL per
year.





The
reconciliation of the United States statutory federal income rate and the
effective income tax rate in the accompanying consolidated statements of
operations is as follows:


69





2009
                
                
                2008Statutory
      U.S. federal income tax rate
                
                
                (34.0)
                %
                
                
                (34.0
                )%State
      taxes, net
                
                
                (4.1)
                %
                
                
                (5.5
                )%Equity
      based compensation
                
                
                -
                %
                
                
                -
                %Foreign
      tax credits
                
                
                -
                %
                
                
                1.9
                %Foreign
      currency fluctuation
                
                
                (1.9)
                %
                
                
                2.5
                %U.S.
      tax credits
                
                
                (0.5)
                %
                
                
                -
                %Revaluation
      of Derivatives
                
                
                14.7
                %
                
                
                -
                %Other
                
                
                0.1
                %
                
                
                4.6
                %Change
      in valuation allowance
                
                
                25.9
                %
                
                
                30.5
                %Effective
      income tax rate
                
                
                0.0
                %
                
                
                0.0
                %





The
Company adopted the provisions of FASB ASC 740-10 (Prior Authoritative
Literature: FASB Interpretation No. 48, Accounting for Uncertainty in Income
Taxes) on January 1, 2008.  As the result of the assessment the
Company has recognized no material adjustments to unrecognized tax benefits. At
the adoption date of January 1, 2008 and as of December 31, 2009, the Company
has no unrecognized tax benefits.  By statute, tax years ending
December 31, 2008 through 2004 remain open to examination by the major taxing
jurisdictions to which the Company is subject.





Note
11 — Related Party Transactions




Trust for the
Benefit of the Shareholders of Mega-C Power Corp: The Trustee for The
Trust for the Benefit of the Shareholders of Mega-C Power Corp. served as an
officer of one of our consolidated companies in 2004. See discussion of the
transactions with the trust in the note captioned “Mega-C Power Corp (Mega-C),
Mega-C Trust (the Trust), The Taylor Litigation.”   Effective
December 22, 2009 with the
private placement, the percentage beneficial ownership held by the Mega-C Trust
fell below 5% and is no longer a Related Party.




Transactions with
C&T:A former board member of the Company, Dr. Igor Filipenko, was
the former majority shareholder of C&T prior to the acquisition by the
Company. The Board of Directors on August 21, 2009 approved the issuance of
warrants to purchase not more than 1,600,000 shares of common stock at an
exercise price of $2.00 per share and a term of two years to the C&T Group.
On December 31, 2009 these warrants have not yet been issued pending "mutual
understanding" between the parties.  On January 11, 2010, Dr. Igor
Filipenko gave notice of his resignation as a director of the Company, effective
immediately.




Related party
notes payable: During the year ending December 31, 2009, the Company
borrowed certain amounts from related parties; certain of these borrowings were
extinguished through the issuance of the Company’s common stock during the
fourth quarter of 2009. Refer to Notes captioned “Related Party Debt Financing”
and “Stockholders’ Equity” for discussion on these matters.




Senior Preferred
conversions:  On December 23, 2009, based on agreements received to
convert shares using an October 30, 2009 conversion amount, two directors and
the wife of a director, converted 67,633 shares of their 8% Cumulative
Convertible Senior Preferred stock into 684,209 common shares.





Warrants:On September 22, 2009, we entered into an Amendment to Warrants and
Securities Purchase Agreement with The Quercus Trust, amending the January 14,
2008 Warrant and Securities Purchase Agreement. The Amendment resets the
exercise price for warrants previously issued to Quercus from $2.60 per share to
$0.75 per share. On December 15, 2009 In Amendment No. 2 to the Securities
Purchase Agreement, The Quercus Trust agreed to waive further anti-dilution
rights on its warrants to purchase our common stock below an exercise price
of $0.75 per share subject to the close of the Private Placement which occurred
on December 22, 2009.





Note 12-
Supplemental Cash Flow Information




The
following table provides summary information on our significant non-cash
investing and financing transactions during the twelve-month periods ended
December 31, 2009 and 2008.


70




2009
                          
                          
                          2008Dividend
      accrued to preferred stock – Senior
                          
                          $
                          126,497
                          
                          $
                          141,359Dividend
      accrued to preferred stock – Series A
                          
                          $
                          909,819
                          
                          $
                          976,341Beneficial
      conversion feature on preferred stock
                          
                          $
                          3,010,517
                          
                          $
                          -Warrants
      issued for commission on sale of stock
                          
                          $
                          -
                          
                          $
                          1,193,735Warrants
      issued in lieu of liquidated damages
                          
                          $
                          45,380
                          
                          $
                          -Placement
      fees payable in shares
                          
                          $
                          410,209
                          
                          $
                          -Interest
      converted to common stock
                          
                          $
                          13
                          
                          $
                          7,768Origination
      fees issued with related party note
                          
                          $
                          105,666
                          
                          $
                          7,500Notes
      payable converted to common stock
                          
                          $
                          371,366
                          
                          $
                          1,072,916Satisfaction
      of 2006 Liability to issue stock
                          
                          $
                          -
                          
                          $
                          103,340Fair
      value of warrants issued with related party note
                          
                          $
                          34,002
                          
                          $
                          563,868




Cash
payments for interest during the year ended December 31, 2009 were $46,382. Cash
payments for interest during the year ended December 31, 2008 were
$269,274.There were no payments of income taxes during the years ended December
31, 2009 and 2008.




Note 13— Mega-C Power Corp (Mega-C),Mega-C Trust (the Trust), The Taylor
Litigation




Mega-C Power Corp
Business and Trust rationale:Mega-C Power Corporation was a Nevada
corporation that previously held limited and non-exclusive license rights to the
technology that APC licensed from C&T and that the Company purchased from
C&T [as discussed in the note captioned “Transactions with a related party
(C&T). Mega-C had ceased substantive operations as a result of the
investigation of the promoters and management by the Ontario Securities
Commission (OSC) in the spring of 2003 and was placed into an involuntary
bankruptcy in April, 2004, as further described below.




Trust
Creation: The Trust was created on December 31, 2003, in connection with
a reverse acquisition between APC and the Company, through its public shell then
known as Tamboril Cigar Company, in response to the potential perceived equities
of the Mega-C shareholders and risks of the situation. APC’s founders believed
that the investors in Mega-C might be able to assert a variety of equitable
claims to the energy storage technology the Company acquired from C&T. The
Trust document required that when the Trust made its distribution, the
beneficiary released any claims against all parties. Therefore, while Axion had
no control over the Trust, its mandates were believed to be an effective way to
eliminate conflicting claims to the technology. The Company’s founders were also
shareholders in Mega-C for the most part.




Trust
corpus: The original corpus of the Trust was 7,327,500 shares of the
common stock that APC’s shareholders had rights to in connection with the
reverse acquisition on December 31, 2003. In connection with the execution of
the Amended and Restated Trust Agreement in February 2005, which formally
recognized the jurisdiction of the bankruptcy court on all matters, Axion issued
500,000 additional shares to the Trust. There was no contingency surrounding the
issuance of these shares at that time. This issuance was intended to be Axion’s
contribution to the Trust to obtain clear title to the technology and resolve
all related matters and was charged to operating expense during the year ended
December 31, 2005. The stock issuance transaction was valued at $1,525,000,
which was the value of the shares on the date of issuance.





As a
result of the bankruptcy court’s confirmation of a Chapter 11 Plan and the
substantial consummation of the confirmed plan in November 2006 the settlement
disclosed below became effective and 1,500,000 shares were returned to the
Company for cancellation in 2006, of which 1,000,000 represented a retroactive
adjustment to the shares issued in the reverse acquisition in December 31, 2003
and 500,000 shares represented a return of the 2005 augmentation. The return in
2006 was the result of a negotiated settlement and there were no contingencies
surrounding the Trust shares in 2005 or 2006. The 500,000 shares recovered were
recorded as a reversal of the expense at fair value on the date of return in
2006 amounting to $1,125,000 and were promptly cancelled as were the 1,000,000
shares.


71





Trust
Operations: The Trust did not conduct any substantive operations because,
as described below, Mega-C was placed into involuntary bankruptcy shortly after
the Trust’s inception. As a result of the confirmation of Mega-C’s plan of
reorganization by an order entered on November 8, 2008 and the substantial
consummation of the confirmed plan on November 21, 2006, as described below, the
Trust is now governed by a court appointed Trustee along with a court appointed
Board from the Trust’s beneficiaries.




The Trust for the
Benefit of the Shareholders of Mega-C Power Corp.Analysis of
Consolidation: Under FASB Interpretation No. 46 (revised December 2003)
Consolidation of Variable
Interest Entities an interpretation of ARB No. 51, (FIN 46R), reporting
companies are required to consolidate a related variable interest entity (“VIE”)
when the reporting company is the “primary beneficiary” of that entity and holds
a variable interest in the VIE. The determination of whether a reporting company
is the primary beneficiary of a VIE ultimately stems from whether the reporting
entity will absorb a majority of the VIE’s anticipated losses or receive a
majority of the VIE’s anticipated gains.




Variable Interest
Entity:The Trust may be a variable interest entity because it has
required outside infusions of cash over its existence.




Variable
Interest:The Company analyzed its transactions with and relationship to
the Trust and concluded that it may have had a very small variable interest in
the Trust based on its obligation to perform the acts necessary to have the SEC
declare a registration statement effective. Further, Axion appeared to have had
a limited variable interest based on its obligation, pursuant to the
requirements in the Trust instrument that Axion pay Trust expenses until the
required registration statement was declared effective. However, in reality,
Axion never paid any significant Trust expenses for three reasons: (1) while the
Trust included a provision for payment of expenses, no significant expenses were
ever paid, (2) the Trust suspended operations on April 4, 2004 when Mega-C Power
Corp. entered bankruptcy; and (3) the explicit obligation the Company had to pay
certain expenses of the Trust ended on January 7, 2005 when the required
registration statement was declared effective. The Company’s relationship to and
transactions with the Trust, based on actual transactions, constituted a very
small variable interest, if any, compared to other entities who provided much
larger amounts of support to the Trust, for which the Company had no
responsibility. Further no shares were expected to be returned to Axion at the
time these assessments were made. The relative size of the variable interest is
relevant to the determination of the primary beneficiary, as discussed
below.





Primary
Beneficiary:Axion did not and will not absorb a majority of the Trust’s
anticipated losses or derive the benefit of a majority of the Trust’s gains, if
any, at any time. The primary beneficiary, at the time of assessment, based on
an assessment of what entity (entities) absorbs a majority of the entity’s
expected losses, receives a majority of its expected residual returns, or both,
as a result of holding variable interests, was the creditors and shareholders of
Mega-C Power Corp, as a group. These were the entities, as groups, who would be
affected by increases and decreases in the Trust’s primary asset, the Axion
stock. These two groups will also suffer a diminution in assets available for
distribution to them because of the expenses the Trust incurs. The increases and
decreases in the value of the Axion stock in the Trust will have no effect on
Axion. Axion may have had a very limited obligation in the first quarter of 2004
but few, if any, expenses were incurred by the Trust in that quarter. In the
second quarter, Mega-C Power Corp. entered bankruptcy and the Trust became
dormant and, effectively, under the jurisdiction of the Bankruptcy Court. Upon
registration of the Trust shares in January 2005 Axion’s obligation to the Trust
ended except as described below relative to possible registration of
shares.




Based on
the above, Axion was not the primary beneficiary and accordingly, Axion is not
required to consolidate the Trust. Axion’s relationship with the Trust ended
when the Bankruptcy Court in Reno confirmed the bankruptcy plan in 2006 except
as described below relative to possible registration of shares. (See “Settlement
Agreement” below)





Trust
Registration Rights: The Company registered
7,327,500 shares of common stock held by the Mega-C Trust by a registration
statement the SEC declared effective January 7, 2005.  Pursuant to the
confirmed Chapter 11 Plan (See footnote captioned “Subsequent Events”), as
referenced above, the Company may be required to register 5,700,000 of those
shares (the "Plan Funding Shares") which fund the Chapter 11 Plan.  The
Company filed a post-effective amendment relating to the resale or other
disposition of 1,627,500 shares, of which, 1 million represent a portion of the
Plan Funding Shares and 627,500 represent shares to pay expenses of the Trust.
In paragraph 1(d) of the Settlement Agreement, the Company further agreed to
file such additional registration statements or post-effective amendments as may
be necessary or desirable to facilitate or accommodate the sale or distribution
of 4,700,000 of those shares. The Settlement Agreement was incorporated and
approved in its entirety in paragraph 6.1 of the Second Amended Plan, which
further provided in paragraph 6.12 that the Second Amended Shareholder Trustee
and the Liquidation Trustee have the right and power to request that the Company
file such amendments to the registration statement for the Plan Funding
Shares.


72




Taylor
Litigation: On February 10, 2004, Lewis “Chip” Taylor, Chip Taylor in
Trust, Jared Taylor, Elgin Investments, Inc. and Mega-C Technologies, Inc.
(collectively the “Taylor Group”) filed a lawsuit in the Ontario Superior Court
of Justice Commercial List (Case No. 04-CL-5317) that named Tamboril, APC, Rene
Pardo, Marvin Winick, Kirk Tierney, Joseph Piccirilli, Ronald Bibace, Robert
Averill, James Smith, James Eagan, Thomas Granville, Joseph Souccar, Glenn W.
Patterson, Canadian Consultants Bureau Inc., Robert Appel, Harold Rosen, Igor
Filipenko, Valeri Shtemberg, Yuri Volfkovich, Pavel Shmatko, Michael
Kishinevsky, Mega-C Power Corporation (Nevada), Mega-C Power Corporation
(Ontario), C&T, Turitella Corporation, Gary Bouchard, Fogler Rubinoff LLP,
Netprofitetc Inc., 503124 Ontario Ltd., HAP Investments LLC, Infinity Group LLC,
James Keim, Benjamin Rubin and John Doe Corporation as defendants. Although the
complaint alleges a number of complex and intersecting causes of action, it
appears that with respect to the Company and certain of its directors, officers
and stockholders, the lawsuit alleged a conspiracy to damage the value of the
Taylor Group’s investment in Mega-C and deprive the Taylor Group of its alleged
interests in the technology based on an alleged “oral” agreement, as well as
damages of $250,000,000.




Based on
orders entered in the Bankruptcy Court on February 11, 2008, management believes
that this litigation against the Company is resolved, as set forth more fully in
the section entitled “Settlement Agreement and Confirmed Chapter 11
Plan.”




Mega-C Bankruptcy
Court Litigation:
As described above, shortly after the formation of the Trust, Lewis “Chip”
Taylor, Chip Taylor in Trust, Elgin Investments, Jared Taylor and Mega-C
Technologies filed suit against Axion and APC’s founders (the “Taylor
Litigation”). The Company, APC and Thomas Granville filed an involuntary Chapter
11 petition against Mega-C in the U.S. Bankruptcy Court for the District of
Nevada (Case No. BK-N-04-50962-gwz).





In
February 2005, the Bankruptcy Court stayed the Taylor Litigation pending
resolution of Mega-C’s Chapter 11 bankruptcy case. In March 2005, the Bankruptcy
Court appointed William M. Noall to serve as Chapter 11 Trustee for the Mega-C
case. On June 7, 2005, the Chapter 11 Trustee commenced an adversary proceeding
against Sally Fonner, the trustee of the Trust (Adversary Proceeding No.
05-05042-gwz), demanding, among other things, the turnover of at least 7,327,500
shares of the Company’s stock held by the Trust as property of the bankruptcy
estate.




On July
27, 2005, the Company commenced an adversary proceeding against the Chapter 11
Trustee and Ms. Fonner (Adversary Proceeding No. 05-05082-gwz) for the purpose
of obtaining a judicial determination that as of the petition
date:




·
            Mega-C's license to commercialize
      the technology was
terminated;





·
            Mega-C does not have any interest
      in the technology;





·
            Mega-C did not transfer any
      property to the Company with the intent to damage or defraud any
      entity;





·
            Mega-C did not transfer any
      property to the Company for less than reasonably equivalent value;
      and




·
            If the court ultimately decides
      that Mega-C has a valid legal interest in the technology, then the Company
      is entitled to terminate the Trust. Further, Axion amended its complaint
      in September 2005 to assert its legal right to have the Trustee of the
      Mega-C Trust hold the assets of the Trust for the benefit of the Company
      in the event the bankruptcy court were to grant the Chapter 11 Trustee's
      request for turnover of the Trust assets and to set aside the
      Trust. Among other things these theories made it necessary to name
      Sally A. Fonner as a defendant in the
  lawsuit.




Settlement
Agreement and Confirmed Chapter 11 Plan: On December 12, 2005, the
Company entered into a settlement agreement with Mega-C, represented by its
Chapter 11 Trustee William M. Noall ("Noall"), and the Trust, represented by its
trustee Sally A. Fonner ("Fonner"). Additional signatories to the settlement
agreement include: (a) the Company's subsidiaries APC and C&T; (b)
Fonner in both her capacity as Mega-C's sole officer and director and as trustee
of the Trust; (c) certain former stockholders of APC including Robert
Averill, Joe Piccirilli, Canadian Consultants Bureau Inc., James Smith, James
Eagan, Tom Granville, Joe Souccar, HAP Investments, LLC, Glenn Patterson, Igor
Filipenko, Ron Bibace, Kirk Tierney, Infinity Group, LLC, James Keim and
Turitella Corporation; (d) Paul Bancroft, and (e) certain former
stockholders of C&T including, Yuri Volkovich, Pavel Shmatko, Albert
Shtemberg, Edward Shtemberg, C&T Co., Inc. in Trust, Oksana Fylypenko,
Andriy Malitskiy, Valeri Shtemberg, Yuri Shtemberg, Victor Eshkenazi, Miraslav
E. Royz, and Rimma Shtemberg.


73


The
settlement agreement was approved by the Bankruptcy Court after a hearing in an
order dated February 1, 2006. Certain terms were subject to confirmation and
effectiveness of Mega-C's Chapter 11 plan of reorganization. On November 8,
2006, the Bankruptcy Court entered an order confirming the plan which was
subsequently substantially consummated on November 21, 2006. The settlement
agreement was fully incorporated in the confirmed Chapter 11 plan. At the date
of these financial statements, the plan is fully effective and substantially
consummated.  Accordingly, all pending and potential disputes between the
parties to the Settlement Agreement have been resolved. In summary, the
following steps have been accomplished:




·
            The Company has compromised and
      withdrawn  its notes receivable from Mega-C to an allowed unsecured
      claim of $100;





·
                Mega-C
      has assigned all of its right, title and interest, if any, in the
      technology and any and all tangible and intangible personal property in
      the Company's possession to the
Company;




·
            The Trust has been restated and
      retained 4,700,000 shares that will be sold to pay creditor claims that
      remain unsatisfied from the Liquidation Trust described below, with the
      balance to be proportionately distributed to the holders of allowed equity
      interests in Mega-C in connection with the implementation of Mega-C's
      Chapter 11 plan. It is also the owner of 685,002 share certificates
      which serve as collateral for loans paid to the newly created Liquidation
      Trust in the amount of
$2,055,000;





·
            A newly created Liquidation Trust
      received the proceeds of loans in the amount of $2,055,000, secured by
      685,002 shares and has legal title to 314,998 shares that will be sold to
      pay creditor claims and Liquidation Trust
  expenses.





·
            The former trustee of the Trust
      has received 627,500 shares as compensation by the Trust through the
      effective date of Mega-C's plan;
and





·
            The Trust surrendered 1,500,000
      shares to the Company which were promptly cancelled as discussed under
      “Trust corpus” above.





The
litigation settlement and releases provided by the plan, which are as broad as
the law allows, are now binding on Mega-C, the Chapter 11 trustee, the Taylor
Group and all other parties described in the plan of reorganization. The plan
requires the Liquidation Trustee or the Second Amended Shareholders Trustee to
seek dismissals of the Taylor litigation to the extent the litigation asserts
derivative or other causes of action that belong to the Chapter 11 estate of
Mega-C.





While
certain aspects of the litigation discussed above are on appeal to the Ninth
Circuit Court of Appeals and to the United States District Court for the
District of Nevada, management believes the possibility of any adverse decision
to the Company to be remote.




In orders
entered on February 11, 2008, the Bankruptcy Court held that the alleged “oral”
agreement creating rights or interests in the Technology in favor of the Taylor
Group never existed and, even if it had, the Taylor Group transferred any such
rights to the Debtor which were then transferred to the Company by the confirmed
Chapter 11 Plan. The Bankruptcy Court held that the Taylor Group has no interest
in or rights to the Technology. The Bankruptcy Court held that the only rights
the Taylor Group has are as putative creditors or shareholders of Mega-C and
that any attempts to claim an interest in or contest the Company’s title to the
Technology are contrary to the permanent injunction of the Chapter 11
Plan.




Future Litigation
Costs:No amounts have been accrued in the accompanying balance sheet
related to future litigation costs. Protracted litigation or higher than
anticipated costs could significantly reduce available working capital and have
a material adverse impact on the company’s financial condition.




Notes
Receivable-Mega-C: The Company advanced funds to Mega-C over the years
from 2003 to 2005. The Company considered these notes impaired, by recording an
allowance for doubtful accounts, in an amount equal to the aggregate of the
advances, net of certain repayments, against the Mega-C advances as the advances
were made.




Because
of the uncollectibility of the Mega-C receivable, as confirmed by the above
described transactions and events, the Company recorded a recovery of notes
receivable previously written off in November of 2006 in the amount of $100 as
well as other assets received from Mega-C Power Corp. The other assets received,
primarily miscellaneous fixed assets, have been determined to be negligible in
value and no attempt has been made to secure an appraisal or record any amounts
for these assets. Most importantly, the confirmation of the plan of
reorganization conveyed all of Mega C’s right, title and interest, if any, in
the technology to the Company, thereby resolving a significant challenge to the
Company’s ownership of the technology.


74




Note 14 — Commitments and
Contingencies and Significant Contracts




Facilities
In April of 2008, the Company signed a new lease that added to our existing
space at our manufacturing plant in New Castle, Pennsylvania. Rent expense for
this plant amounted to approximately $194,000 and $202,000 for the years ended
December 31, 2009 and 2008, respectively. On March 28, 2010, we entered into a
new lease for the space for the period commencing April 3, 2010 with a monthly
rental payment of $16,700 (fixed for the initial term of the lease) and a term
of three years, with two successive five-year renewal options and with future
rent to be negotiated at a commercially reasonable rate. In addition to the
monthly rental, we are obligated to pay all required maintenance costs, taxes
and special assessments, maintain public liability insurance in the amount of $1
million, and maintain fire and casualty insurance for an amount equal to 100% of
the replacement value of the leased premises.





In
December 2008, we signed a letter agreement to sublease from a current tenant on
a month-to-month basis a building consisting of 54,000 square feet in New
Castle, Pennsylvania. Monthly rental for this space is $19,300 on a monthly
basis, subject to an annual inflation adjustment in January of each
year.  In addition to the monthly rental, we are obligated to pay all
required maintenance costs, taxes and special assessments, maintain public
liability insurance, and maintain fire and casualty insurance for an amount
equal to 100% of the replacement value of the leased premises.  Rent
expense for this facility amounted to $232,000 and $53,000 for the years ended
December 31, 2009 and 2008, respectively. This month-to-month rental agreement
continues until the earlier of (1) purchase of the building by the Company or a
third party; (2) termination of the letter agreement by either party; or (3)
December 31, 2010.





Employment
Agreements:We have entered into executive employment
agreements with Thomas Granville, Edward Buiel, Andrew Carr Conway, Jr., Robert
Nelson and Donald T. Hillier, however our agreement with Mr. Conway terminated
on July 4, 2008 and the agreement with Mr. Hillier terminated on February 5,
2010. These agreements generally require each executive to devote substantially
all of his business time to our affairs, establish standards of conduct,
prohibit competition with our company during their term, affirm our rights
respecting the ownership and disclosure of patents, trade secrets and other
confidential information, provide for the acts and events that would give rise
to termination of such agreements and provide express remedies for a breach of
the agreement. Each of our executives will participate, without cost, in our
standard employee benefit programs, including medical/hospitalization insurance
and group life insurance, as in effect from time to time. Each of the covered
executives will generally receive an automobile allowance and reimbursement for
all reasonable business expenses incurred by him on behalf of the Company in the
performance of his duties. The provisions of the individual agreements set forth
in the following table:




Name
                        
                        Position
                        
                        Date
                        
                        Term
                        
                        Salary
                        
                        
                        Options
                        
                        
                        Price
                        
                        Vesting
                        
                        StockThomas Granville
                          (1)
                        
                        CEO
                        
                        6/23/08
                        
                        2-year
                        
                        $
                        324,000
                        
                        
                        
                        90,000
                        
                        
                        $
                        2.50
                        
                        Monthly
                        
                        
                        0Donald
      T.  Hillier
                          (2)
                        
                        CFO
                        
                        6/18/08
                        
                        3-year
                        
                        $
                        150,000
                        
                        
                        
                        180,000
                        
                        
                        $
                        2.50
                        
                        Monthly
                        
                        
                        90,000Dr.
      Edward Buiel
                          (3)
                        
                        VP
      and CTO
                        
                        6/23/08
                        
                        2-year
                        
                        $
                        180,000
                        
                        
                        
                        100,000
                        
                        
                        $
                        2.50
                        
                        05/31/10
                        
                        
                        80,000Andrew
      Carr
                          Conway,
      Jr. (4)
                        
                        Former
      CFO
                        
                        8/31/07
                        
                        6 months
                        
                        $
                        180,000
                        
                        
                        
                        120,000
                        
                        
                        $
                        4.50
                        
                        Monthly
                        
                        
                        0Dr.
      Robert Nelson
                          (5)
                        
                        VP
      Mfg. Eng.
                        
                        12/1/07
                        
                        2-year
                        
                        $
                        132,000
                        
                        
                        
                        108,000
                        
                        
                        $
                        5.00
                        
                        Monthly
                        
                        
                        36,000





1.
            Thomas
      Granville. On June
      23, 2008, we entered into an Executive Employment Agreement with Thomas
      Granville as Chief Executive Officer. Pursuant to this agreement, Mr.
      Granville receives a monthly base salary of $27,000 for the period
      commencing June 1, 2008, and terminating May 31, 2010. Mr. Granville’s
      base salary is subject to annual review, and such salary is subject to
      renegotiation on the basis of Mr. Granville’s and the Company’s
      performance. In addition, Mr. Granville received a signing bonus of
      $250,000, paid 50% within ten (10) days of the execution of the agreement
      and 50% upon receipt of the final $10,000,000 investment from the Quercus
      Trust. The Company also granted Mr. Granville an option to purchase 90,000
      shares of our common stock at a price of $2.50 per share at a vesting rate
      of 3,750 shares per month through the term of the agreement. Mr. Granville
      is eligible to participate in any executive compensation plans adopted by
      the shareholders of the Company and the Company's standard employee
      benefit programs.


75





2.
            Donald T.
       Hillier. 
      On June 18, 2008, we entered into an Executive Employment Agreement with
      Donald T. Hillier as Chief Financial Officer.  Pursuant to this
      agreement, Mr. Hillier received a monthly base salary of $12,500 for the
      period commencing June 16, 2008, and terminating June 15, 2011.  Mr.
      Hillier’s employment with the Company was terminated on February 5,
      2010.  The Company is in the process of working out the details
      of the separation with Mr. Hiller so that the termination costs, if any,
      are yet to be determined. The Company also granted to Mr. Hillier
      90,000 shares of common stock which will vest in equal 30,000 share
      amounts on June 16 of each of 2009, 2010 and 2011.  In
      addition, Mr. Hillier was granted an option to purchase 180,000 shares of
      common stock at a price of $2.50 per share at a vesting rate of 5,000
      shares per month through the term of the agreement.




3.
            Edward Buiel,
      Ph.D.On June 23,
      2008, we entered into an Executive Employment Agreement with Dr. Edward
      Buiel as Vice President and Chief Technology Officer. Pursuant to this
      agreement, Dr. Buiel receives a monthly salary of $15,000 for the period
      commencing June 1, 2008 and terminating May 31, 2010. Dr. Buiel’s base
      salary is subject to annual review, and such salary is subject to
      renegotiation on the basis of Dr. Buiel’s and the Company’s performance.
      In addition, Dr. Buiel received a signing bonus of $110,000, paid 90%
      within ten (10) days of the execution of the agreement and 10% upon the
      receipt of the final $10,000,000 investment from the Quercus
      Trust.  Also, if Dr. Buiel is still employed with the Company on
      June 1, 2011, he will receive a bonus of $50,000, notwithstanding any
      other bonus arrangement. The Company also reconfirmed Dr. Buiel’s option
      to purchase 100,000 shares of our common stock, which had been previously
      granted in his prior Executive Employment Agreement dated December 29,
      2006. These existing options remain exercisable at a price of $3.75 per
      share and shall vest 50% on December 29, 2009 and 50% on December 29, 2010
      assuming Dr. Buiel is still employed by the company on each of those
      respective dates. In addition, Dr. Buiel was granted an option to purchase
      100,000 shares of our common stock in recognition of the opportunity cost
      associated with the one year extension of his new Executive Employment
      Agreement. These options are exercisable at a price of $2.50 per share and
      shall vest on May 31, 2011. Dr Buiel was also granted 80,000shares of
      common stock, of which 30,000 vests on December 29, 2009, and 50,000 will
      vest on May 31, 2011.  Dr. Buiel is eligible to participate in
      any executive compensation plans adopted by the shareholders of the
      Company and the Company's standard employee benefit programs. Certain of
      these equity awards were awarded under Dr. Buiel’s 2006 employment
      agreement and the terms of such awards have been incorporated into his new
      Executive Employment
Agreement.




4.
            Andrew C.
      Conway, Jr.Under the terms of his
      employment agreement effective August 2007, which had an original term of
      six months, Mr. Conway received an annualized salary of $180,000, bonuses
      as determined by the compensation committee and an option to purchase
      10,000 shares of our common stock at a price of $4.50 per share for each
      month of service. 30,000 options vested with the execution of the
      contract, and the balance vest periodically over the remainder of the
      contract. The contract automatically renewed for an additional six month
      term ending August 31, 2008. A total of 120,000 options were awarded
      under the extended contract. Mr. Conway served as the Company’s CFO
      through June 2008, and his employment agreement terminated, as mutually
      agreed, on July 4, 2008.





5.
            Dr. Robert F.
      Nelson.Under the
      terms of his employment agreement effective December 2007, which has a
      term of two years, Dr. Nelson receives an annual salary of $132,000 and
      bonuses as determined by the compensation committee. In addition, Dr.
      Nelson receives an option to purchase 108,000 shares of our common stock
      at a price of $5.00 per share and 36,000 shares of restricted common
      stock, each that vest over three years from the effective date of his
      employment agreement.





We have
no retirement plans or other similar arrangements for any directors, executive
officers or employees, other than a noncontributory 401(k)
plan.


76




Purchase
Orders




On
November 3, 2008, the Company received the first release order for toll contract
manufacturing of standard flooded lead acid batteries for a large North American
lead acid battery company. The initial three types of batteries covered in this
order have successfully completed customer testing, and shipment was expected to
begin late in the fourth quarter of 2008. The order calls for the shipment of
92,250 batteries, spread fairly equally over 11 months, with a total aggregate
base purchase price of $6,400,000. Raw materials will have an agreed upon base
price with regular adjustments (not less than monthly) to account for market
price fluctuations, which could cause fluctuations in the final purchase
invoice. Due to economic conditions caused by the steep downturn in the economy,
our customer was unable to accept product based on their original delivery
schedule, resulting in only 1,500 batteries being shipped before the end of
2008. The Company, however, continued to make product and store it at our
facility. The customer has informed the Company that it intends to honor its
purchase order commitment, but in view of the current economic conditions there
is no guarantee it will be able to do so. In early March 2009, the customer
began taking delivery of the manufactured product and set up a schedule to
accept all of the remaining manufactured inventory, (approximately 13,500
batteries), by the end of April 2009.  All existing production, and
future production, will take place on an ancillary "flooded battery line" so the
production will not reduce capacity from the Company’s development of its
proprietary PbC technologies, which will utilize the primary "AGM battery line"
for production. During 2009, this contract was subsequently terminated or
abandoned by the Company.  The remaining inventory is being sold at
prices in excess of those which would have been paid under the
contract.




Note
15 — Subsequent Events




On
January 11, 2010, Dr. Igor Filipenko gave notice of his resignation as a
director of the Company, effective immediately.





On
January 26, 2010, a shareholder converted 100,000 Series A Preferred shares
along with accrued dividends of $525,277 into 1,426,900 shares of the Company’s
common stock.





On
February 3, 2010, 100,000 warrants issued to placement agents were exercised
pursuant to the revised terms with a total exercise price of
$57,000.





Effective
February 5, 2010, Donald Hillier was terminated as the Chief Financial Officer
of the Company.  The parties are working out the terms of the
separation, and the Registrant is engaged in an active search for a new Chief
Financial Officer.





At
December 31, 2009, 630,897 shares of Series A Convertible Preferred Stock were
issued and outstanding.  Our remaining 530,897 shares of Series A
Convertible Preferred Stock has been converted into 7,358,524 shares of common
stock pursuant to an amendment to the Series A Certificate of Designation filed
with the Delaware Secretary of State on February 24, 2010.





In a
press release dated February 22, 2010, it was announced that Axion Power Battery
Manufacturing, Inc. will receive a $298,605 solar energy program grant to assist
with solar power energy storage research and development. This grant, along with
proceeds from the December 22, 2009 Pennsylvania Energy Development Authority
award will contribute funding to our development program with an estimated total
project cost of $1 million.





On March
3, 2010, David Gelbaum gave notice of his resignation as a director of the
Company, effective immediately.





On or
about March 15, 2010 Axion Power International, Inc., Traci and William Ahearn,
Sally Fonner and Dr. James Smith (“Axion and the Four Shareholders”) have
entered into a settlement agreement with Banca M.B., Sp.A. under which Banca
M.B. Sp.A. has paid to Axion and the Four Shareholders the sum of $490,000 in
full settlement of all claims from the issue of stock relating to the exercise
of 301,700 warrants. These warrants with a price of $2.00 per share were
exercised on a cashless basis and sold to Banca M.B., Sp.A in December 2005 with
expected proceeds of $758,290. The division of the settlement proceeds among
Axion and the Four Shareholders has as yet to be agreed upon. The Company will
continue to treat the 301,700 shares of stock previously issued upon exercise of
these warrants as unpaid pending an agreed upon settlement.









The
Company is in the final stages of negotiating arrangements with several new
officers, including a new Chief Financial Officer, a new Chief Operating Officer
and a new Vice President of Engineering.  Upon consummation of these
new hires, the Company will file a Form 8-K, disclosing the applicable
arrangements and attaching copies of the contracts as exhibits
thereto.





Item
    9.
            Changes in and Disagreements With
      Accountants on Accounting and Financial
  Disclosure.





None.


77





Item 9A(T) Controls and
Procedures




Disclosure
Controls and Procedures




We
maintain disclosure controls and procedures that are designed to ensure that
information required to be disclosed in our reports pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act") is recorded, processed,
summarized and reported within the time periods specified in the SEC's rules and
forms, and that such information is accumulated and communicated to our
management, including our Chief Executive Officer and Chief Financial Officer,
as appropriate to allow timely decisions regarding required disclosure. Under
the supervision of, and with the participation of, our management, including our
principal executive officer and principal financial officer, we conducted an
evaluation of our disclosure controls and procedures, as such term is defined
under Rule 13a-15(e) promulgated under the Exchange Act, as they existed on
December 31, 2009.  Based on the evaluation and the
identification of the material weaknesses in our internal control over financial
reporting described below, our Chief Executive Officer and our Chief Financial
Officer concluded that, as of December 31, 2009, our disclosure controls and
procedures were not effective.





Management's
Report on Internal Control Over Financial Reporting




Our
management is responsible for establishing and maintaining adequate internal
control over financial reporting, as such term is defined in Rule 13a-15(f)
of the Exchange Act. Internal control over financial reporting refers to the
process designed by, or under the supervision of, our Chief Executive Officer
and Chief Financial Officer, and effected by our board of directors, management
and other personnel, to provide reasonable assurance regarding the reliability
of financial reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting principles, and
includes those policies and procedures that:




(a)   Pertain
to the maintenance of records that, in reasonable detail, accurately and fairly
reflect the transactions and dispositions of the assets of the
Company;




(b)   Provide
reasonable assurance that transactions are recorded as necessary to permit
preparation of financial statements in accordance with generally accepted
accounting principles, and that receipts and expenditures of the Company are
being made only in accordance with authorizations of management and directors of
the Company; and




(c)   Provide
reasonable assurance regarding prevention or timely detection of unauthorized
acquisition, use or disposition of the Company's assets that could have a
material effect on the financial statements.




Because
of its inherent limitations, internal control over financial reporting may not
prevent or detect misstatements. Also, projections of any evaluation of
effectiveness to future periods are subject to the risk that controls may become
inadequate because of changes in conditions, or that the degree of compliance
with the policies or procedures may deteriorate.




A
material weakness is a deficiency, or a combination of deficiencies, in internal
control over financial reporting, such that there is a reasonable possibility
that a material misstatement of our annual or interim financial statements will
not be prevented or detected on a timely basis.




Management
has evaluated the effectiveness of the Company's internal control over financial
reporting as of December 31, 2009. Management based its assessment on the
framework set forth in COSO’s Internal Control – Integrated Framework (1992) in
conjunction with Securities and Exchange Commission Release No. 33-8820 entitled
"Commission Guidance Regarding Management’s Report on Internal Control Over
Financial Reporting Under Section 13(a) or 15(d) of the Securities and Exchange
Commission".  Based on its assessment, management concluded that the
Company did not maintain effective internal control over financial reporting as
of December 31, 2009, because of certain material weaknesses addressed
below.




During
the three months ended December 31, 2009, we identified the following conditions
that indicated that our internal control over financial reporting and our
disclosure controls and procedures were not effective:




·
            Several
      key inventory control processes and procedures are either not sufficiently
      documented or working effectively, including inventory management (such as
      physical inventories and cycle counts), production and returns
      processing.




78




·
            Inventory
      valuation processes are inadequately documented or do not exist, including
      which costs are to be expensed versus inventoried, standard cost changes,
      actual versus standard cost analysis, the accurate accumulation of total
      production costs and the assessment of valuation
  reserves.




·
            Some
      of our employees have the ability to purchase and receive small dollar
      goods without approval of a senior manager.  A policy needs to
      be implemented that sets forth the formal procedures for purchasing these
      small dollar goods.




·
            There are instances when we ship
      products to our customers without adequate documentation to meet the
      standards of persuasive evidence to be able to recognize revenue upon
      shipment.




·
            We
      do not have formal guidelines for creating properly authorized levels for
      entering into agreements (i.e. purchase orders, non-disclosure agreements,
      sales and other contracts).




·
            We
      do not have a consistent policy in control and retention of
      documentation.





During
the three months ended December 31, 2009, to address the weaknesses
identified in the three months ended September 30, 2009, we implemented the
following revised control activities and improved processes:




·
            During
      the first three quarters of 2009, the Company's procedures to assess and
      identify the impact of Recently Issued Accounting Pronouncements were not
      sufficient, as evidenced by our failure to identify the impact of FASB ASC
      815-40-15-5 through 7 "Derivatives and Hedging – Contracts in Entity’s own
      Equity" as it pertains to the “down round” provision contained in some of
      the Company’s outstanding warrants as of January 1, 2009. Upon receiving a
      comment letter from the Commission addressing this matter, the Company
      determined that its Quarterly Reports on Form 10-Q filed for the quarters
      ending March 31, 2009 and June 30, 2009 contained material misstatements
      in regards to derivative liabilities and related gains and losses from the
      change in fair market value of these derivative liabilities at the
      measurement dates.  As a result of this determination, the
      Company filed amended quarterly reports for the quarters ending March 31,
      2009 and June 30, 2009. During the fourth quarter of 2009, the Company
      implemented a process to review GAAP and SEC research and technical
      practice aids to mitigate this risk, including a review of standard GAAP
      and SEC disclosure checklists produced by third parties for preparation of
      the Company’s quarterly and annual filings on Forms 10-Q and
      10-K.




·
            Procedures
      have been developed and implemented for the administration of performance
      appraisals for the managerial and administrative
      staff.  Appraisal documents have been formatted and appraisal
      reviews are being implemented.




·
            We
      have developed a closed loop monitoring process to track the status of
      open issues, pending improvements and other directed actions and are
      confirming its efficacy.




·
            We
      have considering implementation of a policy of conducting criminal
      background checks for all new employees and board
  members.




·
            We
      have improved performance of inventory physical cycle counts, including
      reconciliations of carrying quantities between our ERP system with
      quantities reported in our materials quality control system; however, we
      still need to address the ability to restrict roles and access within the
      system through purchase of another
module.




·
            We
      have implemented segregation of duties as to initiation of new vendor
      setup and vendor file maintenance from personnel with accounts payable
      payment responsibilities.


79




·
            We
      have implemented approval by accounting personnel, inventory management
      and also require CFO approval prior to recording any inventory adjustments
      that result from cycle counts and physical
  counts.




·
            We
      have restricted the roles and access within the ERP system for each user
      to only those areas for which their function requires
  use.




·
            We
      have implemented segregation of duties for HR and payroll processing and
      implemented control procedures.




On
February 5, 2010, our chief financial officer was terminated by the
Company.  While his role included oversight of the existing control
framework, we have since made organizational changes to our framework to ensure
that adequate oversight is maintained, and we believe that there will be minimal
impact on the control environment moving forward.  Furthermore, our Chief
Executive Officer is acting as our interim Chief Financial Officer, and we are
currently actively searching for a new chief financial officer, who will, among
other duties, undertake oversight of the internal control framework as well as
ensuring that all material deficiencies are corrected.




The
principal executive officer (who is currently also acting as our principal
financial officer) has concluded that, other than the specific changes
identified in this Item 9A(T), there have been no changes to our internal
control over financial reporting (as defined in Rules 13a-15(f) under the
Exchange Act) during the last fiscal quarter that materially affected, or are
reasonably likely to materially affect, the Company's internal control over
financial reporting.




This
annual report does not include an attestation report of the Company's registered
public accounting firm regarding internal control over financial reporting.
Management's report was not subject to attestation by the Company's registered
public accounting firm pursuant to temporary rules of the Commission that permit
the Company to provide only management's report in this annual
report.





PART
III





Item
10  Directors, Executive Officers and Corporate Governance





Our board
of directors directs the management of the business and affairs of our company
as provided in our certificate of incorporation, our by-laws and the General
Corporation Law of Delaware. Members of our board of directors keep informed
about our business through discussions with senior management, by reviewing
analyses and reports sent to them, and by participating in board and committee
meetings.





Board
Leadership Structure and Risk Oversight; Diversity





Our
Company is led by Thomas Granville, who has served as chief executive officer
and chairman of the board since 2005.  Our board of directors is
divided into four classes of directors that serve for staggered three-year
terms. Three of our current board members have been elected to serve for terms
that expire on the date of our 2010 annual meeting; two have been elected to
serve for terms that expire on the date of our 2011 annual meeting; three have
been elected to serve for terms that expire on the date of our 2012 annual
meeting; and two were elected by our board of directors in September 2009 to
serve for terms that expire on September 21, 2012.  The board has
three standing committees – audit, compensation and technology.  The
audit committee is comprised solely of independent directors, and each committee
has a separate chair.  Our audit committee is responsible for
overseeing risk management, and our full board receives periodic reports from
management.





Our board
leadership structure is used by other smaller public companies in the Unites
States, and we believe that this leadership structure is effective for the
Company.  We believe that having a combined Chairman/CEO and chairs
for each of our board committees is the correct form of leadership for our
Company.  We have a single leader for our Company and oversight of
Company operations by experienced directors, three of whom are also committee
chairs.  We believe that our directors provide effective oversight of
the risk management function, especially through the work of the audit committee
and dialogue between the full board and our management.





80




The
Company does not currently consider diversity in identifying nominees for
director.  Due to the small size of the Company, the priority has been
in attracting qualified directors, and issues such as diversity have not yet
been considered.





The
following table identifies our directors and specifies their respective ages and
positions with our Company.





Name
            
            Age
            
            PositionThomas
      Granville
            
            
            65
            
            Chief
      Executive Officer and Interim Chief Financial Officer,
      DirectorDr.
      Howard K. Schmidt
            
            
            51
            
            DirectorMichael
      Kishinevsky
            
            
            44
            
            DirectorGlenn
      Patterson
            
            
            56
            
            DirectorStanley
      A. Hirschman
            
            
            63
            
            DirectorRobert
      G. Averill
            
            
            69
            
            DirectorD.
      Walker Wainwright
            
            
            59
            
            DirectorJoseph
      P. Bartlett
            
            
            51
            
            DirectorDavid
      Anthony
            
            
            48
            
            Director





Executive
officers.





The
following table identifies our non-director executive officers and specifies
their respective ages and positions with the Company.





Name
            
            Age
            
            PositionDr.
      Edward Buiel
            
            
            37
            
            Vice
      President and Chief Technology OfficerDr.
      Robert F. Nelson
            
            
            69
            
            Vice
      President, Manufacturing and
Engineering





The
following paragraphs provide summary biographical information furnished by our
directors and non-director executive officers.





Directors





Robert G.
Averill, 69, has
served on our board of directors since February 2004. Mr. Averill is retired and
principally involved in personal investments. He served as a director of Implex
Corp., a New Jersey based developer and manufacturer of orthopedic implants that
he co-founded in 1991 and then sold to Zimmer Holdings, Inc. From 1978 to 1991,
Mr. Averill held a variety of executive positions with Osteonics Corp., a
developer and manufacturer of orthopedic implants that he co-founded in 1978 and
then sold to Stryker Corporation. From 1971 to 1977, Mr. Averill served as a
director and held a variety of executive positions with Meditech Inc., a
developer and manufacturer of orthopedic implants that he co-founded in 1971 and
sold to 3M Corporation in 1975. Mr. Averill holds 28 patents on a variety of
orthopedic devices and materials, and he is the co-author of several
publications in the field of orthopedics. Mr. Averill holds two degrees from the
Newark College of Engineering (BS-mechanical engineering, 1962 and
MS-engineering management, 1966).  The Company has determined that Mr.
Averill should serve as a director due to his extensive engineering and
manufacturing background.




Thomas
Granville, 65,
has served on our board of directors since February 2004. Mr. Granville served
as the chairman of our board of directors from February 2004 through April 2005
when he agreed to accept full-time employment as our chief executive officer.
Mr. Granville served as the president of a New York State elevator company that
specialized in the installation and maintenance of elevators, escalators, moving
walkways and other building transportation products. Mr. Granville also served
15 years as treasurer and ten years as the president of the National Elevator
Industry Inc., a trade association that represents elevator manufacturers and
contractors, where his duties included labor negotiations for national contracts
and oversight duties to a $2.3 billion national pension fund. Mr. Granville has
also been a partner, or the general partner, of a number of real estate
partnerships that owned multi-family housing, commercial real estate and a cable
television company. Mr. Granville is a 1967 graduate of Canisus College.
(BA-Business Administration).  Mr. Granville is also acting as the
interim Chief Financial Officer until a new Chief Financial Officer is appointed
to replace Mr. Hillier.  The Company has determined that Mr. Granville
should serve as a director due to his position as senior executive officer of
the Company, which gives him valuable insight, as well as his prior managerial
experience which provides unique insight for the Board into the operations of
the Company.


81


Michael
Kishinevsky, 44,
is an independent director who has served on our board since 2005. Mr.
Kishinevsky is a Canadian lawyer who had been principally engaged in the
practice of corporate and commercial law from 1995 until 2005, with a particular
emphasis on the needs of Toronto’s Russian speaking population. For five years
Mr. Kishinevsky served as general legal counsel for C&T. Mr. Kishinevsky
currently serves as a director of Sunrock Consulting Ltd., a company he
co-founded in 1995, that specializes in the import and distribution of carbon
black and synthetic rubber. He is also the president and director of SunBoss
Chemicals Corp., a corporation specializing in chemical additives for the custom
rubber mixing industry. Mr. Kishinevsky is a 1989 graduate of the University of
Calgary (B.Sc. in Cellular, Molecular and Microbial Biology and B.Sc. in
Psychology) and a 1993 graduate of the University of Ottawa Law School. Mr.
Kishinevsky was called to the bar in the Ontario courts in 1995 and is a member
of the Law Society of Upper Canada.  The Company has determined that
Mr. Kishinevsky should serve as a director due to his legal background as well
as his import and distribution experience which provides expertise on the Board
with regard to product distribution.




Howard K.
Schmidt, Ph.D., 51, is an independent
director, who has served on our board of directors since April, 2005. Dr.
Schmidt is presently employed as a Petroleum Engineering Consultant at Saudi
Aramco in Dhahran, Saudi Arabia.  Until August, 2009, Schmidt was a
Senior Research Fellow in the Department of Chemical and Biomolecular
Engineering at Rice University in Houston, Texas. Between September, 2003 and
March, 2008, he was the Executive Director of the Carbon Nanotechnology
Laboratory (the “CNL”) at Rice University. Dr. Schmidt is an expert in the field
of carbon nanotechnology and single-wall carbon nanotubes.  Before joining
the CNL, Dr. Schmidt operated Stump Partners, a Houston-based consultancy firm
and was involved in two Internet ventures. In 1989, Dr. Schmidt founded SI
Diamond Technology, Inc., a company that received the prestigious R&D 100
Award from Research and Development Magazine in 1989, went public in 1993, and
recently changed its name to Applied Nanotech Holdings, Inc. Dr. Schmidt holds
two degrees from Rice University (BS-Electrical Engineering, 1980 and
Ph.D.-Chemistry, 1986).  The Company has determined that Dr. Schmidt
should serve as a director due to his unique and extremely invaluable technical
knowledge in engineering.




Glenn
Patterson,56,
was appointed to our board of directors in February 2004 and is currently
elected to serve until our 2012 annual meeting.  He is currently
president of HAP International Inc., an investment research and analysis company
specializing in renewable and smart grid applications.   Mr.
Patterson, in addition to Axion Power International Inc., sits as a director on
Wired Sun, a privately held advanced PV thin film company and the Shopoff
Properties Trust Inc., a publicly held REIT. He is also active in community
events and is a member of the advisory board for the Oregon Chapter of the
Cystic Fibrosis Foundation.  Until November 2004, Mr. Patterson was
president of the Oregon Electric Group, an electrical power and technology
services company based in Portland, Oregon. In September 2001, the Oregon
Electric Group of which Mr. Patterson was a major owner, was sold to
Montana-Dakota Resources, whose major subsidiaries includes electrical power
generating, utility and distribution companies with operations in 40 states. Mr.
Patterson graduated summa cum laude from Willamette University (BS-Economics) in
1975.  The Company has determined that Mr. Patterson should serve as a
director due to his extensive background in power generation and electrical
power areas.




Stanley A.
Hirschman,63,
was elected to our board of directors as an independent director at our 2006
annual meeting. He is President and Director of Optex Systems Holdings, a
manufacturer of optical sighting systems and assemblies primarily for Department
of Defense (DOD) applications.  He is  a former director of
Datascension and former chairman of Mustang Software, Inc.  While at
Mustang Software, Mr. Hirschman took a hands-on role in the planning and
execution of the strategic initiative to increase stockholder value resulting in
the successful acquisition of the company by Quintus
Corporation.  Prior to joining Optex Systems in 2008 he was president
of CPointe Associates, a management consultancy. He has also held executive
positions with Software Etc., T.J. Maxx, Gap Stores and Banana Republic. Mr.
Hirschman is a member of the National Association of Corporate Directors, the
KMPG Audit Committee Institute and is a graduate of the Harvard Business School
Audit Committees in the New Era of Governance symposium.  He is active
in community affairs and serves on the Advisory Board of the Salvation Army
Adult Rehabilitation Centers.  The Company has determined that Mr.
Hirschman should serve as a director due to his extensive corporate governance
and finance experience as well as his wide experience as a public company
director.




D. Walker
Wainwright,59,
is an independent director who was appointed to our board of directors on
January 15, 2007. He is Chairman of Interboro Insurance Company, a provider of
personal lines insurance products in New York State. He is also the founder and
chief executive of Wainwright & Co. LLC, an independent financial advisory
firm and investment manager. The firm’s activities include the identification
and assessment of alternative investments, the monitoring of these investments
and the creation of proprietary portfolios. In this respect, the firm works with
investment management firms, not-for-profit organizations and family offices as
an independent consultant to create client-specific solutions. Wainwright &
Co. also researches and reviews private investments, including private equity
funds, to assist in determining their suitability for specific accounts or
portfolios. Formerly a Managing Director in investment banking at Smith Barney,
Inc. and at Kidder, Peabody & Co., Mr. Wainwright has over 35 years’
consulting, banking and investment banking experience. Having directed Kidder’s
investment banking efforts in the Asia Pacific Region, he has extensive
international experience and has lived in Australia and Lebanon. Mr. Wainwright
began his career at Chemical Bank and, subsequently, the Schroder Group. He is a
graduate of Stanford University (A.B. – 1972) and of Columbia University (M.B.A.
– 1976).  The Company has determined that Mr. Wainwright should serve
as a director due to his long term finance and banking
experience.


82


David
Anthony, 48, was
elected to our board of directors by the then-current board of directors in
September 2009 to fill one of the three new positions on the board created by
the board of directors.  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 or has sat during the past five years
on the boards of Agent Video Intelligence, ThermoEnergy, Clean Power, Solar
Enertech, EFOI, Applied Solar 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.  The Company has determined that Mr. Anthony
should serve as a director due to his extensive experience in finance and
related areas, as well as his vast experience of service as a public
director.




Joseph P.
Bartlett,51, was
elected to our board of directors by the then-current board of directors in
September 2009 to fill one of the three new positions on the board created by
the board of directors. 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.   Mr. Bartlett
sits on the boards or has sat on the boards during the past five years of
Applied Solar, and ThermoEnergy.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.  The Company has determined that Mr. Bartlett should
serve as a director due to his legal experience and his relationship to Quercus
Trust.




Executive
Officers





Dr. Edward Buiel,
Ph.D. was appointed chief of R&D in September 2005. Before joining
our Company, Dr. Buiel served for 3-1/2 years as project leader for the Energy
Storage Group of Meadwestvaco Corporation, one of the largest producers of
activated carbon in the world. In this position Dr. Buiel’s team focused on
developing activated carbon materials for electrochemical applications including
Lithiumion batteries, organic ultracapacitors, and asymmetric lead-carbon
capacitors. His responsibilities included managing a USCAR-Advanced Battery
Consortium project to develop activated carbon materials for hybrid electric
vehicle energy storage systems and managing a joint program with Sandia National
Laboratories to develop lead-carbon capacitors for grid-connected energy storage
systems. Previously, Dr. Buiel worked for nine months as a senior software
engineer for Vasocor, Inc. and for 2-1/2 years as a Senior Research Engineer for
the Automotive Carbon Group of Meadwestvaco Corporation. Dr. Buiel is a 1994
graduate of Queen’s University, Kingston, Ontario, where he earned a Bachelor of
Science in Engineering and Physics, and a 1998 graduate of Dalhousie University,
Halifax, Nova Scotia, where he earned a Ph.D. in Physics and wrote his doctoral
thesis on “The Development of Disordered Carbon Materials as Anode Materials for
Li-ion Battery Applications.”




Dr. Robert F.
Nelson, Ph.D. joined the Company as Vice President of Manufacturing
Engineering in December 2007. Before joining Axion, Dr. Nelson worked for
Firefly Energy, Inc. as a Technical Advisor and Senior Vice President of
Engineering for 4-1/2 years. His primary function at Firefly was to implement
the development and testing of VRLA cells and batteries. Before Firefly, Dr.
Nelson was an independent consultant for six years, working with some 45
companies on materials and designs of VRLA batteries. Previous positions include
three years at Bolder Technologies (1994-1997), three years at the International
Lead Zinc Research Organization (where he organized and managed the Advanced
Lead-Acid Research Organization, ALABC, from 1991 to 1994), one year at Portable
Energy Products (a lead-acid startup company) and 13 years with Gates Energy
Products, the innovator of VRLA technology. Over these 30 years, Dr. Nelson has
five patents, has given invited presentations at some 35 international
conferences and published 38 research papers in refereed journals. Before this,
he spent 11 years in teaching and researching, lastly at the University of
Georgia (1972-1977). Dr. Nelson is a 1963 graduate of Northwestern University
with a B.A. in Chemistry (cum laude) and a 1967 graduate of the University of
Kansas with a Ph.D. in Analytical Chemistry. During his academic career he gave
presentations at over 30 international conferences and published more than 35
refereed papers dealing with organic electrochemistry.


83


Presiding
Director




Our Chief
Executive Officer, Thomas Granville, acts as the presiding director at meetings
of our board of directors. In the event that Mr. Granville is unavailable to
serve at a particular meeting, responsibility for the presiding director
function will rotate among the chairmen of each of the committees of our board
of directors.




Corporate
Governance




Our board
of directors believes that sound governance practices and policies provide an
important framework to assist them in fulfilling their duty to stockholders. Our
board of directors is working to adopt and implement many “best practices” in
the area of corporate governance, including separate committees for the areas of
audit and compensation, careful annual review of the independence of our Audit
and Compensation Committee members, maintenance of a majority of independent
directors, and written expectations of management and directors, among other
things.




Code
of Business Conduct and Ethics




Our board
of directors has adopted a Code of Business Conduct and Ethics, which has been
distributed to all directors, officers, and employees and will be given to new
employees at the time of hire. The Code of Business Conduct and Ethics contains
a number of provisions that apply principally to our Chief Executive Officer,
Chief Financial Officer and other key accounting and financial personnel. A copy
of our Code of Business Conduct and Ethics can be found under the “Investor
Information” section of our website at www.axionpower.com. We intend to disclose
any amendments or waivers of our Code of Business Conduct and Ethics on our
website at www.axionpower.com.





Communications
with the Board of Directors




Stockholders
and other parties who are interested in communicating with members of our board
of directors, either individually or as a group, may do so by writing to Thomas
Granville, c/o Axion Power International, Inc, 3601 Clover Lane, New Castle,
Pennsylvania, 16105. Mr. Granville will review all correspondence and forward to
the appropriate members of the board of directors copies of all correspondence
that, in the opinion of Mr. Granville, deals with the functions of the board of
directors or its committees or that he otherwise determines requires their
attention. Concerns relating to accounting, internal controls or auditing
matters should be immediately brought to the attention of our audit committee
and will be handled in accordance with procedures established by that
committee.




Director
Independence




Our board
of directors has determined that six of our directors would meet the
independence requirements of the American Stock Exchange if such standards
applied to the Company. In the judgment of the board of directors, Messrs.
Granville, Gelbaum, Bartlett and Anthony do not meet such independence
standards. In reaching its conclusions, the board of directors considered all
relevant facts and circumstances with respect to any direct or indirect
relationships between the Company and each of the directors, including those
discussed under the caption “Certain Relationships and Related Transactions”
below. Our board of directors determined that any relationships that exist or
existed in the past between the Company and each of the independent directors
were immaterial on the basis of the information set forth in the
above-referenced sections.




Board
Committees




The board
of directors currently has three standing committees: the audit committee, the
compensation committee, and the technology committee. These committees are
responsible to the full board.




Audit Committee – Our
board of directors has created an audit committee that presently consists of Mr.
Hirschman, Mr. Wainwright and Dr. Schmidt. Mr. Hirschman serves as chairman of
the audit committee. All members have a basic understanding of finance and
accounting, and are able to read and understand fundamental financial
statements. The board of directors has determined that all members of the audit
committee would meet the independence requirements applicable to NYSE Amex
listed companies although such standards do not apply to our company. Our board
of directors has also determined that based on work history none of our current
committee members meet the definition of an “Audit Committee Financial Expert”
as defined in Item 407(d)(5)(ii) under Regulation S-K, promulgated under the
Securities Exchange Act of 1934. The audit committee has the sole authority to
appoint, review and discharge our independent registered public accounting firm.
The audit committee reviews the results and scope of the audit and other
services provided by our independent registered public accounting firm, as well
as our accounting principles and our system of internal controls, reports the
results of their review to the full board of directors and to management, and
recommends to the full board of directors that the our audited consolidated
financial statements be included in our Annual Report on Form
10-K.


84




The audit
committee met 9 times during the year-ended December 31, 2009. The audit
committee charter can be found on our website under About Axion; Corporate Governance /
Committees, at www.axionpower.com.




Compensation
Committee – Our board of directors has created a compensation committee
that presently consists of Messrs. Averill, Patterson, Kishinevsky and
Wainwright. Mr. Averill serves as chairman of the compensation committee. The
compensation committee exercises our board of director’s authority concerning
compensation of the executive management team and non-employee directors and
administers our stock-based incentive compensation plans. The compensation
committee typically meets in separate sessions independently of board meetings.
The compensation committee typically schedules telephone meetings as necessary
to fulfill its duties. The chairman establishes meeting agendas after
consultation with other committee members and Mr. Thomas Granville, our Chief
Executive Officer. Subject to supervision by the full board of directors, the
compensation committee administers our 2004 Incentive Stock Plan. Our Chief
Executive Officer and other members of management regularly discuss our
compensation issues with compensation committee members. Subject to compensation
committee review, modification and approval, Mr. Granville typically makes
recommendations respecting bonuses and equity incentive awards for the other
members of the executive management team. The compensation committee establishes
all bonus and equity incentive awards for Mr. Granville in consultation with
other members of the management team.   Our board of directors
has determined that all members of the compensation committee would meet the
independence requirements applicable to NYSE Amex listed companies although such
standards do not apply to us.





The
compensation committee conducted one formal meeting during the year ended
December 31, 2009. In addition, the compensation committee met periodically and
informally with our CEO throughout the year ended December 31, 2008. The
compensation committee charter can be found on our website under “About Axion; Corporate
Governance; Committees,” at www.axionpower.com.




Technology Committee
– Our board of directors has created a technology committee that consists of
Messrs. Averill and Granville. Mr. Averill serves as chairman of the technology
committee. The technology committee provides board-level oversight, guidance and
direction to our R&D staff, supervises the activities of our Technical
Advisory Board, evaluates and makes recommendations with respect to the
acquisition and licensing of complementary and competitive technologies and
supervises the activities of our intellectual property lawyers.




The
technology committee did not formally meet  during the year-ended
December 31, 2009 but it did meet informally with our CTO and other members of
the R&D and manufacturing teams during the year-ended December 31,
2009.





We do not have a nominating
committee – Given the relatively small size of our board of directors and
the desire to involve the entire board of directors in nominating decisions, we
have elected not to have a separate nominating committee, and the entire board
of directors currently serves that function. With respect to director nominees,
our board of directors will consider nominees recommended by stockholders that
are submitted in accordance with our By-Laws. We do not have any specific
minimum qualifications that our board believes must be met by a board
recommended nominee for a position on our board of directors or any specific
qualities or skills that our board believes are necessary for one or more of our
directors to possess. We also do not have a specific process for identifying and
evaluating nominees for director, including nominees recommended by security
holders. The board has not paid fees to any third party to identify or evaluate
potential board nominees.





Item
11 Executive Compensation





The
following table sets forth the compensation earned by or paid to our Named
Executive Officers with respect to the year ended December 31,
2009.  The Named Executive Officers are as shown. We did not have any
non-equity incentive plans, pension plans or deferred compensation plans during
the year ended December 31, 2009.


85





SUMMARY
COMPENSATION TABLE




Name and Principal
                      Position
                    
                    Year
                    
                    Salary
                      ($) (1)
                    
                    
                    Bonus
                      ($) (2)
                    
                    
                    Stock
                      Awards
                      ($) (3)
                    
                    
                    Option
                      Awards
                      ($) (3)
                    
                    
                    All Other
                      Compensation
                      ($) (4)
                    
                    
                    Total
                      Compensation
                      ($)Thomas Granville
                      CEO
      and Director (5)
                    
                    2009
                    
                    
                    324,000
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    23,458
                    
                    
                    
                    347,458Thomas Granville
                      CEO
      and Director (5)
                    
                    2008
                    
                    
                    324,000
                    
                    
                    
                    250,000
                    
                    
                    
                    
                    
                    
                    79,872
                    
                    
                    
                    31,493
                    
                    
                    
                    685,365Edward
      Buiel
                      Vice
      President and CTO
                    
                    2009
                    
                    
                    180,000
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    18,230
                    
                    
                    
                    198,230Edward
      Buiel
                      Vice
      President and CTO
                    
                    2008
                    
                    
                    180,000
                    
                    
                    
                    125,000
                    
                    
                    
                    141,500
                    
                    
                    
                    95,436
                    
                    
                    
                    16,920
                    
                    
                    
                    558,856Donald
      Hillier
                      CFO
             (6)
                    
                    2009
                    
                    
                    150,000
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    19,643
                    
                    
                    
                    169,643Donald
      Hillier
                      CFO
             (6)
                    
                    2008
                    
                    
                    86,538
                    
                    
                    
                    
                    
                    
                    
                    166,500
                    
                    
                    
                    179,244
                    
                    
                    
                    10,274
                    
                    
                    
                    442,556Robert
      Nelson
                      VP
      Manufacturing Eng.
                    
                    2009
                    
                    
                    132,000
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    7,408
                    
                    
                    
                    139,408Robert
      Nelson
                      VP
      Manufacturing Eng.
                    
                    2008
                    
                    
                    132,000
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    
                    16,582
                    
                    
                    
                    148,582








1.
            Salaries are presented as the
      contractual amount earned for the year, regardless of date of
      payment.





2.
            Discretionary bonuses are not
      made pursuant to any specific bonus plan.  Bonuses cited were
      awarded and paid in 2008.





3.
            Stock and option awards were
      granted pursuant to the individual employment contracts. Options are
      valued using the Black-Scholes-Merton option pricing
      model.





4.
            Other compensation includes
      Company perquisites relating to car allowances, personal use of company
      cars, accrued vacation payments, moving expenses with related gross-up,
      other earned compensation, as well as healthcare premiums paid under the
      group health plan.





5.
            During 2008, $627,375 of the
      compensation reported to Mr. Granville was remitted to Gallagher Elevator
      Co. (Gallagher) pursuant to his 2005 employment
      contract.  Remaining payments were remitted directly to Mr.
      Granville through our payroll
department.





6.
            Mr.
      Hillier joined the Company on June 19, 2008.  Salary and other
      compensation cited for 2008 reflects the apportionment of these expenses
      based on his dates of service for that year.  Mr. Hillier served
      as our CFO throughout fiscal year 2009 and was terminated as the Company’s
      CFO on February 5, 2010.





7.
            Mr.
      Conway resigned from his position as our Chief Financial Officer in June
      2008.




During
2008, we entered into executive employment agreements with Thomas Granville,
Edward Buiel, and Donald Hillier (who was terminated from employment on February
5, 2010). These agreements generally require each executive to devote
substantially all of his business time to our affairs, establish standards of
conduct, prohibit competition with our company during their term, affirm our
rights respecting the ownership and disclosure of patents, trade secrets and
other confidential information, provide for the acts and events that would give
rise to termination of such agreements and provide express remedies for a breach
of the agreement. Each of our executives will participate in our standard
employee benefit programs, including medical/hospitalization insurance as in
effect from time to time. Each of the covered executives will generally receive
an automobile allowance and reimbursement for all reasonable business expenses
incurred by him on behalf of the Company in the performance of his
duties.  The provisions of the individual agreements are summarized
below:


86





·
            Under the terms of his employment
      agreement effective June 2008, which has a term of two years, Mr.
      Granville receives an annual salary of $324,000, an annual car allowance
      of $9,000, a signing bonus of $250,000, bonuses as determined by the
      compensation committee, and a 5-year option to purchase 90,000 shares of
      our common stock at a price of $2.50 per share that vests over 24 months
      beginning in June 2008.





·
            Under the terms of his employment
      agreement effective June 2008, which had a term of two years and a
      potential term extension to May 31, 2011, Mr. Buiel receives an annual
      salary of $180,000, an annual car allowance of $6,000, a signing bonus of
      $110,000 and a future extended term bonus of $50,000 if the executive is
      still in the employ of the Company on June 1, 2011, bonuses as determined
      by the compensation committee, and a 5-year option to purchase 100,000
      shares of our common stock at a price of $2.50 per share with 50% cliff
      vesting on each of December 31, 2009 and December 31, 2010
      respectively.  Mr. Buiel also received 30,000 shares of the
      Company's common stock vesting during December 2009, and 50,000 shares of
      the Company's common stock to vest on June 15,
  2011.





·
            Under the terms of his employment
      agreement effective June 2008, which had a term of three years, Mr.
      Hillier received an annual salary of $150,000, an annual car allowance of
      $9,000, bonuses as determined by the compensation committee, and a 5-year
      option to purchase 180,000 shares of our common stock at a price of $2.50
      per share that vests over 36 months beginning in June 2008.  Mr.
      Hillier also received 90,000 shares of the Company's common
      stock with vesting to occur in equal 30,000 shares on the next 3
      anniversary dates of his employment agreement.  Mr. Hillier
      served as our CFO throughout fiscal year 2009 and was terminated as the
      Company’s CFO on February 5,
2010.





·
            Under the terms of his employment
      agreement effective December 2007, which has a term of two years, Dr.
      Nelson receives an annual salary of $132,000 and bonuses as determined by
      the compensation committee. In addition, Dr. Nelson receives an option to
      purchase 108,000 shares of our common stock at a price of $5.00 per share
      and 36,000 shares of restricted common stock, each that vest over three
      years from the effective date of his employment
      agreement.




87





Outstanding
Equity Awards At 2009 Fiscal Year-End




Option Awards
                                              
                                              Stock AwardsNon-Plan
                                              
                                              Equity Incentive Plan
                                                Awards
                                              
                                              
                                              
                                              
                                              
                                              Market
                                              
                                              Equity Incentive Plan AwardsNumber of shares underlying unexercised options
                                              
                                              
                                              
                                              Number
                                              
                                              Value
                                              
                                              # Shares
                                              
                                              Market ValueName
                                              
                                              #
                                                Exercisable
                                              
                                              
                                              #
                                                Unexercisable
                                              
                                              Unearned
                                              
                                              Option
                                                Exercise
                                                Price
                                              
                                              Option
                                                Expiration
                                                Date
                                              
                                              Shares or units of stock
                                                that have not vested
                                              
                                              Unearned shares, units, or
                                                other rights not vested
                                              
                                              Footnotes(a)
                                              
                                              (b)
                                              
                                              
                                              (c)
                                              
                                              (d)
                                              
                                              (e)
                                              
                                              (f)
                                              
                                              (g)
                                              
                                              (h)
                                              
                                              (i)
                                              
                                              (j)Granville,
      Tom
                                              
                                              
                                              180,000
                                              
                                              
                                              
                                              0
                                              
                                              
                                              
                                              $
                                              2.50
                                              
                                              varies
                                                through
                                                4/30/12
                                              
                                              
                                              
                                              
                                              
                                              
                                              
                                              
                                              
                                              Issued
      pursuant to April 2005 Executive Employment Agreement. Options Expire 5
      years after monthly vest dateGranville,
      Tom
                                              
                                              
                                              71,250
                                              
                                              
                                              
                                              18,750
                                              
                                              
                                              
                                              $
                                              2.50
                                              
                                              varies
                                                through
                                                06/15/15
                                              
                                              
                                              
                                              
                                              
                                              
                                              
                                              
                                              
                                              Issued
      pursuant to June 2008 Executive Employment Agreement. Options Expire 5
      years after monthly vest dateBuiel,
      Edward
                                              
                                              
                                              90,000
                                              
                                              
                                              
                                              0
                                              
                                              
                                              
                                              $
                                              4.00
                                              
                                              varies
                                                through
                                                8/31/13
                                              
                                              
                                              
                                              
                                              
                                              
                                              
                                              
                                              
                                              Issued
      pursuant to Sept 2005 Executive Employment Agreement. Options expire 5
      years after monthly vest dateBuiel,
      Edward
                                              
                                              
                                              50,000
                                              
                                              
                                              
                                              0
                                              
                                              
                                              
                                              $
                                              3.75
                                              
                                              12/29/2015
                                              
                                              
                                              
                                              
                                              
                                              
                                              
                                              
                                              
                                              Options
      issued pursuant to Dec 2006 Executive Employment Agreement. Lump sum
      vesting date -
12/29/2009




88





Option Awards
                                
                                Stock AwardsNon-Plan
                                
                                Equity Incentive Plan
                                  Awards
                                
                                
                                
                                
                                
                                
                                
                                Equity Incentive Plan AwardsNumber of shares underlying unexercised options
                                
                                
                                
                                Number
                                
                                Market
                                  Value
                                
                                # Shares
                                
                                
                                Market
                                  ValueName
                                
                                #
                                  Exercisable
                                
                                
                                #
                                  Unexercisable
                                
                                Unearned
                                
                                Option
                                  Exercise
                                  Price
                                
                                Option
                                  Expiration
                                  Date
                                
                                Shares or units of stock
                                  that have not vested
                                
                                Unearned shares, units, or
                                  other rights not vested
                                
                                Footnotes(a)
                                
                                (b)
                                
                                
                                (c)
                                
                                (d)
                                
                                (e)
                                
                                (f)
                                
                                (g)
                                
                                (h)
                                
                                (i)
                                
                                
                                (j)Buiel,
      Edward
                                
                                
                                0
                                
                                
                                
                                50,000
                                
                                
                                
                                $
                                3.75
                                
                                12/29/2016
                                
                                
                                
                                
                                
                                
                                
                                
                                
                                
                                
                                
                                Options
      issued pursuant to Dec 2006 Executive Employment Agreement. Lump sum
      vesting date - 12/29/2010Buiel,
      Edward
                                
                                
                                0
                                
                                
                                
                                100,000
                                
                                
                                
                                $
                                2.50
                                
                                05/31/2016
                                
                                
                                
                                
                                
                                
                                
                                
                                
                                
                                
                                
                                Issued
      pursuant to June 2008 Executive Employment Agreement. Lump sum vesting
      date - 05/31/2011Buiel,
      Edward
                                
                                
                                
                                
                                
                                
                                
                                
                                
                                
                                
                                
                                
                                
                                
                                
                                
                                
                                
                                
                                50,000
                                
                                
                                $
                                90,500
                                
                                Restricted
      Stock Grant issued pursuant to June 2008 Executive Employment Agreement -
      Lump sum Vesting Date 05/31/2011Hillier,
      Don
                                
                                
                                
                                
                                
                                
                                
                                
                                
                                
                                
                                
                                
                                
                                
                                
                                
                                
                                
                                
                                90,000
                                
                                
                                $
                                166,500
                                
                                Restricted
      Stock Grant issued pursuant to June 2008 Executive Employment Agreement
      -  Vesting 1/3 per year
      through  06/16/2011Hillier,
      Don
                                
                                
                                90,000
                                
                                
                                
                                90,000
                                
                                
                                
                                $
                                2.50
                                
                                varies
                                  through
                                  06/15/16
                                
                                
                                
                                
                                
                                
                                
                                
                                
                                
                                
                                
                                Issued
      pursuant to June 2008 Executive Employment Agreement. Options Expire 5
      years after monthly vest dateNelson,
      Robert
                                
                                
                                108,000
                                
                                
                                
                                0
                                
                                
                                
                                $
                                5.00
                                
                                varies
                                  through
                                  12/01/2015
                                
                                
                                
                                
                                
                                
                                
                                
                                
                                
                                
                                
                                Options issued
      pursuant to Dec 2007 Executive Employment Agreement. Vesting monthly
      through Dec 1, 2010


89


Nonqualified
deferred compensation




We had no
non-qualified deferred compensation plans during year ended December 31,
2009.




Post-Termination
Compensation




We have
not entered into severance or change in control agreements with any of our named
executive officers or other members of the executive management team, although
our employment agreements with certain members of management do call for
immediate vesting of options upon a 50% change in control. No awards of equity
incentives under our 2004 Incentive Stock Plan or awards of options under our
2004 Outside Directors Stock Option Plan provide for immediate vesting upon a
change in control other than a restricted stock grant of 36,000 shares issued to
Robert Nelson in 2009. However, the compensation committee has the full and
exclusive power to interpret the plans, including the power to accelerate the
vesting of outstanding, unvested awards.   Due to the recent
termination of Mr. Hillier, there is ongoing discussion between Mr. Hillier and
us regarding any potential post termination compensation.





Director
Compensation




The
following table provides information regarding compensation paid to non-employee
directors for services rendered during the year ended December 31,
2009.




FeesEarned or
                  
                  
                  
                  OptionPaid in
                  
                  Stock
                  
                  AwardsCash ($)
                  
                  Awards
                  
                  ($)Name
                  
                  (1)
                  
                  ($)
                  
                  
                  (3)
                  
                  
                  Total ($)Thomas Granville
                  
                  
                  (2
                  )Dr.
      Igor Filipenko (4)
                  
                  
                  0
                  
                  
                  
                  
                  
                  
                  
                  
                  0Robert
      G. Averill
                  
                  
                  42,500
                  
                  
                  
                  
                  
                  
                  
                  
                  42,500Dr.
      Howard K. Schmidt
                  
                  
                  40,000
                  
                  
                  
                  
                  
                  
                  
                  
                  40,000Michael
      Kishinevsky
                  
                  
                  36,500
                  
                  
                  
                  
                  
                  
                  
                  
                  36,500Glenn
      Patterson
                  
                  
                  36,500
                  
                  
                  
                  
                  33,396
                  
                  
                  
                  69,896Stanley
      A. Hirschman
                  
                  
                  44,500
                  
                  
                  
                  
                  33,396
                  
                  
                  
                  77,896D.
      Walker Wainwright
                  
                  
                  45,000
                  
                  
                  
                  
                  33,396
                  
                  
                  
                  78,386David
      Gelbaum (5)
                  
                  
                  0
                  
                  
                  
                  
                  
                  
                  
                  
                  0David
      Anthony (5)
                  
                  
                  0
                  
                  
                  
                  
                  
                  
                  
                  
                  0Joseph
      Bartlett (5)
                  
                  
                  0
                  
                  
                  
                  
                  
                  
                  
                  
                  0





1.
            Fees
      are presented based on the amount earned.  All fees presented
      have been paid in full as of January 8,
2010.





2.
            Mr.
      Granville received no compensation during 2009 for his service as a
      Director, as he served as our CEO during that time period.  For
      a summary of the compensation received by him as CEO during 2009, see
      Summary Compensation Table above.





3.
            Three
      directors were reelected to serve on the Board of Directors at the Annual
      Meeting held on June 25, 2009.  Each director reelected received
      42,855 five-year options with an exercise price of
      $1.40 per share, pursuant to the 2004 Outside Directors Stock Option Plan.
      The options granted shall vest at the rate of 14,285 per year commencing
      on the date of the company's annual meeting, so long as the director
      serves as a member of the board on the date of such meeting. The options
      are valued using the Black-Scholes-Merton option pricing
      model.





4.
            On
      January 11, 2010, Dr. Igor Filipenko gave notice of his resignation as a
      director of the Company, effective
immediately.





5.
            David Gelbaum, David Anthony and
      Joseph Bartlett were added to the Board as a condition of the Quercus
      Trust Amendment to Warrants and Securities Purchase Agreement. These
      members received no compensation for 2009.  Mr. Gelbaum resigned
      as a director on March 3,
2010.


90





The
members of our board of directors are actively involved in various aspects of
our business ranging from relatively narrow board oversight functions to
providing hands-on guidance to our executives and scientific staff with respect
to matters within their personal experience and expertise. We believe that the
active involvement of all directors in our principal business and policy
decisions increases our board of directors’ understanding of our needs and
improves the overall quality of our management decisions. In recognition of the
substantial time and personal effort that we require from our directors, we have
adopted director compensation policies that provide for higher director
compensation than is typically found in companies at our early stage of
development.




Only
non-management directors are compensated separately for service as members of
our board of directors. Each of our non-management directors received the
following components of compensation for the period January 1, 2009 through
December 31, 2009:




·
            A
      basic annual retainer of $25,000 for service as a
  director;





·
            A supplemental retainer of $6,000
      for service as chairman of any
committee;





·
            A
      supplemental annual retainer of $3,000 for service as a committee
      member;





·
            A meeting fee of $1,500 per day
      for each board or committee meeting attended in person or $500 for each
      board or committee meeting attended by telephone;
    and





·
            Reimbursement for all reasonable
      travel, meals and lodging costs incurred on our
    behalf.





·
            Options
      to reelected directors.




At our
2004 annual meeting, our stockholders ratified a stock option plan for
independent directors that authorized the issuance of options to purchase
$20,000 of our common stock for each year of service as a director. At our 2005
annual meeting, the number of shares reserved for issuance under the outside
directors’ stock option plan was increased to 500,000.




For the
years ended December 31, 2009, 2008, 2007, 2006, 2005 and 2004, we issued
128,585, 179,555, 0, 60,000, 70,000 and 54,000, options pursuant to our
directors’ stock option plan, respectively. Of this total, no options were
exercised during the year ended December 31, 2009, 193,555 options are currently
vested and exercisable at a weighted average price of $2.27 per share and
116,000 options are unvested and will be exercisable at a weighted average price
of $1.38 per share.





Item
12  Security Ownership of Certain Beneficial Owners and Management and
Related Stockholder Matters





On March
17, 2010, we had 84,653,302 shares of common stock and 630,897 shares of Series
A Stock issued and outstanding. The following table sets forth certain
information with respect to the beneficial ownership of our securities as of
March 17, 2010, for (i) each of our directors and executive officers; (ii) all
of our directors and executive officers as a group; and (iii) each person who we
know beneficially owns more than 5% of our common stock.




Beneficial
ownership data in the table has been calculated based on the Securities and
Exchange Commission rules that require us to identify all securities that are
exercisable for or convertible into shares of our common stock within 60 days of
March 17, 2010 and treat the underlying stock as outstanding for the purpose of
computing the percentage of ownership of the holder.




Except as
indicated by the footnotes following the table, and subject to applicable
community property laws, each person identified in the table possesses sole
voting and investment power with respect to all capital stock held by that
person. The address of each named executive officer and director, unless
indicated otherwise by footnote, is c/o Axion Power International, Inc. 3601
Clover Lane, New Castle PA 16105.


91





Common Stock
                  
                  
                  Warrant &
                    Options
                    (1)
                  
                  
                  Combined
                    Ownership
                  
                  
                  PercentageQuercus
      Trust (2)
                    1835
      Newport Blvd
                    A109
      – PMB 467
                    Cosa
      Mesa, CA 92627
                  
                  
                  8,571,429
                  
                  
                  
                  10,000,000
                  
                  
                  
                  18,571,429
                  
                  
                  
                  19.6
                  %AWM
      Investment Company, Inc. (3)
                    Special
      Situations Cayman Fund LP (3)
                    527
      Madison Avenue, Suite 2600
                    c/o
      Austin W Marxe & David M Greenhouse
                  
                  
                  1,754,386
                  
                  
                  
                  —
                  
                  
                  
                  1,754,386
                  
                  
                  
                  2.1
                  %AWM
      Investment Company, Inc. (3)
                    Special
      Situations Private Equity Fund
                    527
      Madison Avenue, Suite 2600
                    c/o
      Austin W Marxe & David M Greenhouse
                  
                  
                  1,315,789
                  
                  
                  
                  —
                  
                  
                  
                  1,315,789
                  
                  
                  
                  1.6
                  %AWM
      Investment Company, Inc. (3)
                    Special
      Situations Technology Fund LP
                    527
      Madison Avenue, Suite 2600
                    c/o
      Austin W Marxe & David M Greenhouse
                  
                  
                  798,246
                  
                  
                  
                  —
                  
                  
                  
                  798,246
                  
                  
                  
                  0.9
                  %AWM
      Investment Company, Inc. (3)
                    Special
      Situations Technology Fund II LP
                    527
      Madison Avenue, Suite 2600
                    c/o
      Austin W Marxe & David M Greenhouse
                  
                  
                  4,903,509
                  
                  
                  
                  —
                  
                  
                  
                  4,903,509
                  
                  
                  
                  5.8
                  %James
      E. Winner Jr. & Donna C Winner
                    JT  TEN
      (4)
                    Winner
      Building, 32
      West State Street,
                    Sharon,
      PA 16146
                  
                  
                  8,245,614
                  
                  
                  
                  —
                  
                  
                  
                  8,245,614
                  
                  
                  
                  9.7
                  %Manatuck
      Hill Partners, LLC (5)
                    1465
      Post Road East
                    Westport,
      CT 06880
                  
                  
                  7,200,000
                  
                  
                  
                  —
                  
                  
                  
                  7,200,000
                  
                  
                  
                  8.5
                  %Hare
      & Co. (6)
                    Bank
      of New York Mellon,
                    One
      Wall Street,  New York NY 10286
                    Attn
       Anthony V. Saviano
                    3rd
      floor / Window A
                  
                  
                  7,150,000
                  
                  
                  
                  —
                  
                  
                  
                  7,150,000
                  
                  
                  
                  8.4
                  %Gelbaum,
      David (7)
                  
                  
                  8,571,429
                  
                  
                  
                  10,000,000
                  
                  
                  
                  18,571,429
                  
                  
                  
                  19.6
                  %Averill,
      Robert
                  
                  
                  3,772.059
                  
                  
                  
                  1,249,183
                  
                  
                  
                  5,021,242
                  
                  
                  
                  5.8
                  %Glenn
      Patterson
                  
                  
                  2,812.001
                  
                  
                  
                  499,145
                  
                  
                  
                  3,311,146
                  
                  
                  
                  3.9
                  %Filipenko,
      Igor (8)
                  
                  
                  1,217,197
                  
                  
                  
                  82,659
                  
                  
                  
                  1,299,856
                  
                  
                  
                  1.5
                  %Granville,
      Tom
                  
                  
                  696,596
                  
                  
                  
                  262,500
                  
                  
                  
                  959,096
                  
                  
                  
                  1.1
                  %Buiel,
      Edward
                  
                  
                  311,000
                  
                  
                  
                  165,000
                  
                  
                  
                  476,000
                  
                  
                  
                  *Nelson
      , Robert
                  
                  
                  36,000
                  
                  
                  
                  108,000
                  
                  
                  
                  144,000
                  
                  
                  
                  *Hillier,
      Donald
                  
                  
                  30,000
                  
                  
                  
                  95,000
                  
                  
                  
                  125,000
                  
                  
                  
                  *Wainwright,
      Walker
                  
                  
                  —
                  
                  
                  
                  13,555
                  
                  
                  
                  13,555
                  
                  
                  
                  *Schmidt,
      Howard
                  
                  
                  —
                  
                  
                  
                  37,500
                  
                  
                  
                  37,500
                  
                  
                  
                  *Hirschman,
      Stan
                  
                  
                  —
                  
                  
                  
                  30,000
                  
                  
                  
                  30,000
                  
                  
                  
                  *Kishinevsky,
      Michael
                  
                  
                  —
                  
                  
                  
                  29,500
                  
                  
                  
                  29,500
                  
                  
                  
                  *Bartlett,
      Joseph
                  
                  
                  —
                  
                  
                  
                  —
                  
                  
                  
                  —
                  
                  
                  
                  *Anthony,
      David
                  
                  
                  —
                  
                  
                  
                  —
                  
                  
                  
                  —
                  
                  
                  
                  *Directors
      and officers as a group   (14 persons)
                  
                  
                  17,446,282
                  
                  
                  
                  12,572,042
                  
                  
                  
                  30,018,324
                  
                  
                  
                  30.9
                  %


92





*
            Less than
    1%


(1)
            Represents shares of common stock
      issuable upon exercise of warrants and options held by the stockholder
      that are presently exercisable or will become exercisable within 60
      days.


(2)
            The trustees of The Quercus Trust
      are Mr. David Gelbaum and Ms. Monica Chavez Gelbaum, each with shared
      voting and dispositive power over the shares held by this
      trust.


(2)
            AWM Investment Company, Inc.
      (“AWM”) the general partner of and investment adviser to the Special
      Situations Cayman Fund, L.P.  AWM also serves as the investment
      adviser to, Special Situations Private Equity Fund, L.P., Special
      Situations Technology Fund II, L.P. and Special Situations Technology
      Fund, L.P. Austin W. Marxe and David M. Greenhouse are the principal
      owners of AWM. Through their control of AWM, Messrs. Marxe and Greenhouse
      share voting and investment power over the portfolio securities of each of
      the funds listed above.


(4)
            James E. Winner Jr. & Donna C
      Winner jointly share voting and dispositive power over the
      shares.


(5)
            Manatuck Hill Partners, LLC is an
      investment adviser acting on behalf of its clients' accounts with
      investments in Manatuck Hill Scout Fund, LP, Manatuck Hill Mariner Master
      Fund, LP, and Manatuck Hill Navigator Master Fund, LP. Seward & Kissel
      LLP serves as the legal representative for these
      accounts.  Steve Orlov & Mark Broach share voting and
      dispositive power over the
shares.


(6)
            Hare & Co. is an investment
      advisor operating in the U.K., with offices in New York. Blackrock
      Investment Managers (UK) Ltd has voting and dispositive power over
      the shares.


(7)
            The ownership reflected for David
      Gelbaum is the actual and beneficial ownership of The Quercus
      Trust.   The trustees of The Quercus Trust are Mr. David
      Gelbaum and Ms. Monica Chavez Gelbaum, each with shared voting and
      dispositive power over the shares held by this
      trust.


(8)
            Includes 1,063,145 shares
      beneficially held by Dr. Igor Filipenko, a former director, and 236,711
      shares beneficially held by his
wife.





Item 13  Certain
Relationships and Related Transactions, and Director
Independence





Transactions
with Directors




Robert
Averill—financing transactions-2009.  In August
of 2009 we structured a short term bridge loan with certain of our directors and
investors, the “Secured Bridge Loan”, secured by all of our intellectual
property. Under the arrangement, we received funding of $800,000 through
September 30, 2009, with $600,000 invested by Robert Averill, one of our
directors.  The Secured Bridge Loan had an original maturity date of
December 31, 2009; a loan origination fee equal to 8% of the original loan,
which was paid at maturity; 3,405 warrants upon occurrence of the loan issuable
for each $100,000 invested and exercisable at $2.00 until August 12, 2014.
Anti-dilution provisions apply to the warrants. On or about December 8, 2009, we
borrowed an additional $541,666 from Robert Averill, one of our directors, on
substantially similar terms to the bridge loans in August 2009. The new
bridge loan bears no interest but has a fee of 8% of the principal amount
thereof.  The holders of these notes had the right to convert the note
together with interest, into any security sold by us in an institutional
offering.  Robert Averill converted $171,353 of the principal amount
and fee into an investment in us as part of the December 22, 2009 private
placement, and $970,313 plus $29,688 in fees was repaid in December of
2009.   Upon repayment of the note, all conversion rights
terminated.




Transactions
with Executive Management




See
the “Executive Compensation” section for a discussion of the material elements
of compensation awarded to, earned by or paid to our named executive officers.
Other than as stated in the “Executive Compensation” section, we have not
entered into any transactions with executive management.


93





Director
Independence




Our board
of directors has determined that six of our directors would meet the
independence requirements applicable to NYSE Amex listed companies even though
such standards do not apply to the Company. In the judgment of the board of
directors, Messrs. Granville, Gelbaum, Bartlett and Anthony do not meet such
independence standards. In reaching its conclusions, the board of directors
considered all relevant facts and circumstances with respect to any direct or
indirect relationships between the Company and each of the directors, including
those discussed under the caption “Certain Relationships and Related
Transactions” above. Our board of directors determined that any relationships
that exist or existed in the past between the Company and each of the
independent directors were immaterial on the basis of the information set forth
in the above-referenced sections.





Section
16(a) Reporting Compliance Disclosure





Section 16(a)
of the Securities Exchange Act requires our directors, our executive officers,
and any persons holding more than 10 percent of our common stock to file
reports of their initial ownership of our common stock and any subsequent
changes in that ownership with the SEC and us. Specific due dates for these
reports have been established and we are required to disclose in this Proxy
Statement any failure to file, or late filing, of such reports with respect to
fiscal year 2009.




To our
knowledge, based solely on a review of the Section 16(a) reports furnished to us
and written representations that no other reports were required to be filed
pursuant to Section 16(a) and the related rules of the SEC, for transactions
occurring in fiscal year 2009, our officers, directors and holders of more than
10% of our common stock filed all Section 16(a) reports on a timely basis, other
than as described below.  For transactions occurring in fiscal year
2009, one or more Forms 4 (Statement of Changes of Beneficial Ownership) was
inadvertently filed late for each of the following persons, as indicated: Mr.
Robert Averill, a member of our board of directors (three filings disclosing a
total of three transactions); Stanley Hirschman, a member of our board of
directors (one filing disclosing three transactions); D. Walker Wainwright, a
member of our board of directors (one filing disclosing four transactions,
including one in 2008 and three in 2009); Glenn Patterson, a member of our board
of directors (1 filing disclosing 10 transactions including 1 in 2007, 4 in 2008
and 5 in 2009), and 2nd Amended
Trust for the Benefit of Security Holders of Mega-C Power Corporation, a person
holding more than 10 percent of our common stock (two filings disclosing a total
of none transactions).  For transactions occurring in fiscal year
2009, one or more transactions were not reported on Form 4: James Winner (1
transaction), Hare Advisors (1 transaction), Manatuck Hill Partners, LLC (1
transaction), and Igor Filipenko (1 known transaction).





Item
14  Principal Accounting Fees and Services





Fees
of Independent Registered Public Accounting Firm




The
following table sets forth the fees billed through January 2010 for services
rendered by EFP Rotenberg, LLP. During fiscal years ended December 31, 2009 and
2008, respectively. The table does not reflect $52,250 in fees accrued but not
paid for 2009 and 2008.





Fee Category
                  
                  EFP Rotenberg, LLP(1)
                    2009 Fees
                  
                  
                  Rotenberg & Co. LLP
                    2008 FeesAudit
      Fees (2)
                  
                  $
                  81,507
                  
                  
                  $
                  94,524Audit-Related
      Fees (3)-registration statement consents
                  
                  $
                  4,586
                  
                  
                  $
                  13,686Tax
      Fees
                  
                  $
                  14,000
                  
                  
                  $
                  20,375All
      Other Fees
                  
                  $
                  0
                  
                  
                  $
                  0




(1)  On
October 8, 2009, Axion Power International, Inc. received notice that its
current auditors, Rotenberg and Co., LLP, had resigned in connection with their
merger with EFP Group, which was effective as of October 1, 2009.  The
Company has engaged the new firm resulting from the merger, EFP Rotenberg, LLP,
to continue as the Company's independent registered public accounting
firm.  All of the partners and employees of Rotenberg and Co., LLP and
EFP Group have joined the new firm, EFP Rotenberg, LLP.  EFP
Rotenberg, LLP is currently registered with the PCAOB.





(2) Audit Fees are fees for
professional services performed by EFP Rotenberg, LLP and Rotenberg & Co.
LLP for the audit of our annual consolidated financial statements and review of
consolidated financial statements included in our 10-Q filings billed during the
fiscal years ended December 31, 2009 and 2008, respectively.


94





(3) Fees
paid in connection with the issuance of consents for registration
statements.





Audit
Committee Preapproval of Registered Public Accounting Firm Services




Our
independent registered public accounting firm will provide audit, review and
attest services only at the direction of, and pursuant to engagement fees and
terms approved by, the audit committee. Such engagement will be pursuant to a
written proposal, submitted to the audit committee for review and discussion. If
acceptable, the audit committee will engage the independent registered public
accounting firm pursuant to a written retention agreement, duly approved by the
audit committee. As proscribed by Section 10A(g) of the Securities Exchange Act
of 1934, certain non-audit services may not be provided by our independent
registered public accounting firm, including bookkeeping or other services
related to our accounting records or financial statements; financial information
systems design and implementation; appraisal or valuation services, fairness
opinions, or contribution-in-kind reports; actuarial services; internal audit
outsourcing services; management functions or human resource functions, broker
or dealer, investment adviser, or investment banking services; legal services
and expert services unrelated to the audit; and any other service that the
Public Company Accounting Oversight Board determines, by regulation, is
impermissible.




The audit
committee has reviewed the proposed retention for compliance with three basic
principles, violations of which would impair the independent registered public
accounting firm’s independence: (1) an independent registered public accounting
firm cannot function in the role of management, (2) an independent registered
public accounting firm cannot audit his or her own work, and (3) an
independent registered public accounting firm cannot serve in an advocacy role
for our company. If the audit committee determines that the proposed retention
does not and will not violate these principles, it may authorize, in writing,
the retention of the independent registered public accounting firm for the
agreed scope of non-audit services and compensation structure.





The
Company does not currently have an audit committee financial expert due to the
various experiences of those directors on its audit committee.  Due to
the Company’s limited resources and stage of development, it is not able to
select from as large a pool of potential directors as other public companies and
seeks to attract those directors, who present an overall composite of
characteristics beneficial to the Company.  At this time, the Company
has not been successful in finding a director with the sought profile who would
also qualify as an audit committee financial expert.  Furthermore, in
order to compensate for the lack of a financial expert, the audit committee
engages consultants with financial expertise in specific areas on an as-needed
basis. Although the Company has no current plans to seek an individual who so
qualifies, it will re-examine this priority in future years as appropriate and
certainly should it become so necessary in compliance with future regulatory
requirements.





PART
IV





Item
15  Exhibits




2.1
              Reorganization
      Agreement (without exhibits) between Tamboril Cigar Company, Axion Power
      Corporation and certain stockholders of Axion Power Corporation dated
      December 31, 2003.
              (1)2.2
              First
      Addendum to the Reorganization Agreement between Tamboril Cigar Company,
      Axion Power Corporation and certain stockholders of Axion Power
      Corporation dated January 9, 2004.
              (1)3.1
              Amended
      and Restated Certificate of Incorporation of Tamboril Cigar Company dated
      February 13, 2001.
              (2)3.3
              Amendment
      to the Certificate of Incorporation of Tamboril Cigar Company dated June
      4, 2004.
              (3)3.4
              Amendment
      to the Certificate of Incorporation of Axion Power International, Inc.
      dated June 4, 2004.
              (3)3.5
              Amended
      By-laws of Axion Power International, Inc. dated June 4, 2004.(3)4.1
              Specimen
      Certificate for shares of Company’s $0.00001 par value common
      stock.
              (9)4.2
              Trust
      Agreement for the Benefit of the Shareholders of Mega-C Power Corporation
      dated December 31, 2003.
              (1)4.3
              Succession
      Agreement Pursuant to the Provisions of the Trust Agreement for the
      Benefit of the Shareholders of Mega-C Power Corporation dated March 25,
      2004.
              (4)4.4
              Form
      of Warrant Agreement for 1,796,300 capital warrants.
              (9)4.5
              Form
      of Warrant Agreement for 667,000 Series I investor
    warrants.
              (9)


95





4.6
              Form
      of Warrant Agreement for 350,000 Series II investor
    warrants.
              (9)4.7
              Form
      of Warrant Agreement for 313,100 Series III investor
    warrants.
              (9)4.8
              Form
      of 8% Cumulative Convertible Senior Preferred Stock
      Certificate
              (D)4.9
              First
      Amended and Restated Trust Agreement for the Benefit of the Shareholders
      of Mega-C Power Corporation dated February 28, 2005.
              (11)4.10
              Second
      Amendment and Restated Trust Agreement for the Benefit of the Shareholders
      of Mega-C Power Corporation dated November 21, 2006
              (19)4.11
              Certificate
      of Powers, Designations, Preferences and Rights of the 8% Convertible
      Senior Preferred Stock of Axion Power International, Inc. dated March 17,
      2005.
              (12)4.12
              Certificate
      of Powers, Designations, Preferences and Rights of the Series A
      Convertible Preferred Stock, Par Value $0.0001 Per Share, of Axion Power
      International, Inc. dated October 23, 2006.
              (13)4.13
              Amended
      Certificate of Powers, Designations, Preferences and Rights of the Series
      A Convertible Preferred Stock, Par Value $0.0001 Per Share, of Axion Power
      International, Inc. dated October 26, 2006.
              (13)4.14
              Certificate
      of Amendment to the Certificate of Powers, Designations, Preferences and
      Rights of the Series A Convertible Preferred Stock, Par Value $.0001 Per
      Share, of Axion Power International, Inc. dated February 24,
      20109.1
              Agreement
      respecting the voting of certain shares beneficially owned by the Trust
      for the Benefit of the Shareholders of Mega-C Power
      Corporation.
              Included
      in Exhibit 4.210.1
              Development
      and License Agreement between Axion Power Corporation and C and T Co.
      Incorporated dated November 15, 2003.
              (1)10.2
              Letter
      Amendment to Development and License Agreement between Axion Power
      Corporation and C and T Co. Incorporated dated November 17,
      2003.
              (1)10.3
              Tamboril
      Cigar Co. Incentive Stock Plan dated January 8, 2004
              (A)10.4
              Tamboril
      Cigar co. Outside Directors Stock Option Plan dated February 2,
      2004
              (A)10.5
              Stock
      Purchase & Investment Representation Letter among John L. Petersen,
      Sally A. Fonner and C and T Co. Incorporated dated January 9,
      2004
              (1)10.6
              Letter
      Amendment to Development and License Agreement between Axion Power
      Corporation and C and T Co. Incorporated dated January 9,
      2004.
              (1)10.7
              First
      Amendment to Development and License Agreement between Axion Power
      Corporation and C and T Co. Incorporated dated as of January 9,
      2004.
              (5)10.8
              Definitive
      Incentive Stock Plan of Axion Power International, Inc. dated June 4,
      2004.
              (3)10.9
              Definitive
      Outside Directors’ Stock Option Plan of Axion Power International, Inc.
      dated June 4, 2004.
              (3)10.10
              Executive
      Employment Agreement of Charles Mazzacato.
              (9)10.11
              Executive
      Employment Agreement of Peter Roston.
              (9)10.12
              Amended
      Retainer Agreement between the law firm of Fefer, Petersen & Cie dated
      March 31, 2005
              (C)10.13
              Retainer
      Agreement dated January 2, 2004 between the law firm of Fefer, Petersen
      & Cie and Tamboril Cigar Company.
              (10)10.14
              Bankruptcy
      Settlement Agreement Between Axion Power International, Inc.
      and  Mega-C Power Corporation dated December,
    2005
              (E)10.15
              Second
      Amendment to Development and License Agreement between Axion Power
      International, Inc. and C and T Co. Incorporated dated as of March 18,
      2005.
              (12)10.16
              Executive
      Employment Agreement of Thomas Granville dated June 23,
    2008.
              (20)


96


Table of
Contents




10.17
                Loan
      agreement dated January 31, 2006 between Axion Battery Products, Inc. as
      borrower, Axion Power International, Inc. as accommodation party and
      Robert Averill as lender respecting a $1,000,000 purchase money and
      working capital loan.
                (14)10.18
                Security
      agreement dated January 31, 2006 between Axion Battery Products, Inc. as
      debtor and Robert Averill as secured party.
                (14)10.19
                Security
      agreement dated January 31, 2006 between Axion Power International, Inc.
      as debtor and Robert Averill as secured party.
                (14)10.20
                Promissory
      Note dated February 14, 2006 between Axion Battery Products, Inc. as maker
      and Robert Averill as payee.
                (14)10.21
                Form
      of Warrant Agreement between Axion Power International, Inc. and Robert
      Averill.
                (14)10.22
                Commercial
      Lease Agreement dated February 14, 2006 between Axion Battery Products,
      Inc. as lessee and Steven F. Hoye and Steven C. Warner as
      lessors.
                (14)10.23
                Asset
      Purchase Agreement dated February 10, 2006 between Axion Battery Products,
      Inc. as buyer and National City Bank of Pennsylvania as
      seller.
                (14)10.24
                Escrow
      Agreement dated February 14, 2006 between Axion Battery Products, Inc. and
      National City Bank of Pennsylvania as parties in interest and William E.
      Kelleher, Jr. and James D. Newell as escrow agents.
                (14)10.25
                Executive
      Employment Agreement of Edward Buiel dated June 23, 2008.
                (21)10.26
                Consulting
      Agreement, dated as of September 27, 2007, by and between Axion Power
      International, Inc. and Andrew Carr Conway, Jr.
                (16)10.27
                Amendment
      No. 1 to Consulting Agreement, dated as of October 31, 2007, by and
      between Axion Power International, Inc. and Andrew Carr Conway,
      Jr.
                (16)10.28
                Securities
      Purchase Agreement dated as of January 14, 2008, by and between Axion
      Power International, Inc. and Quercus Trust.
                (17)10.29
                Common
      Stock Purchase Warrant dated January 14, 2008, executed by Axion Power
      International, Inc.
                (17)10.30
                Executive
      Employment Agreement of Donald T. Hillier dated June 18,
    2008.
                (19)10.31
                Amendment
      to Warrants and Securities Purchase Agreement dated as of September 22,
      2009, by and between Axion Power International, Inc. and Quercus
      Trust.
                (22)10.32
                Securities
      Purchase Agreement dated as of December 18, 2009, by and between Axion
      Power International, Inc. and the Investors named therein.
                (23)10.33
                Registration
      Rights Agreement, executed by Axion Power International Inc. and the
      Investors named therein.
                (23)10.34
                Amendment
      No. 2 to Securities Purchase Agreement dated as of January 14, 2008, by
      and between Axion Power International, Inc. and Quercus
    Trust.
                (23)10.35
                Lock-Up
      Agreement executed by Quercus Trust and David Gelbaum and Monica Chavez
      Gelbaum.
                (23)10.36
                Lease
      Agreement, dated March 28, 2010, by and between Steven F. Hoye and Steven
      C. Warner, Lessor, and Axion Power Battery Manufacturing, Inc.,
      Lessee.14.1
                Code
      of Business Conduct and Ethics
                (6)31.1
                Certification
      of Principal Executive Officer Pursuant to Rule 13a-14(a).31.2
                Certification
      of Principal Financial Officer Pursuant to Rule 13a-14(a).32.1
                Statement
      of Principal Executive Officer Pursuant to Section   1350 of Title 18
      of the United States Code.32.2
                Statement
      of Principal Financial Officer Pursuant to Section   1350 of Title 18
      of the United States Code.


97





(1)
            Incorporated
      by reference from our Current Report on Form 8-K dated January 15,
      2004.(2)
            Incorporated
      by reference from our Current Report on Form 8-K dated February 5,
      2003.(3)
            Incorporated
      by reference from our Current Report on Form 8-K dated June 7,
      2004.(4)
            Incorporated
      by reference from our Current Report on Form 8-K dated April 13,
      2004.(5)
            Incorporated
      by reference from our Form S-3 registration statement dated May 20,
      2004.(6)
            Incorporated
      by reference from our Annual Report on Form 10-KSB dated March 30,
      2004(7)
            Incorporated
      by reference from our Current Report on Form 8-K dated April 13,
      2003.(8)
            Incorporated
      by reference from our Current Report on Form 8-K dated February 16,
      2004.(9)
            Incorporated
      by reference from our Form S-1 registration statement dated September 2,
      2004.(10)
            Incorporated
      by reference from our Form S-1 registration statement dated December 17,
      2004.(11)
            Incorporated
      by reference from our Current Report on Form 8-K dated February 28,
      2005.(12)
            Incorporated
      by reference from our Current Report on Form 8-K dated March 21,
      2005.(13)
            Incorporated
      by reference from our Current Report on Form 8-K dated November 8,
      2006.(14)
            Incorporated
      by reference from our Current Report on Form 8-K dated February 16,
      2006.(15)
            Incorporated
      by reference from our Current Report on Form 8-K dated January 3,
      2007.(16)
            Incorporated
      by reference from our Current Report on Form 8-K dated November 6,
      2007.(17)
            Incorporated
      by reference from our Current Report on Form 8-K dated January 17,
      2008.(18)
            Incorporated
      by reference from our Current Report on Form 8-K dated January 31,
      2008.(19)
            Incorporated
      by reference from our Registration Statement on Form S-1 dated July 3,
      2008.(20)
            Incorporated
      by reference from our Current Report on Form 8-K dated June 27,
      2008.(21)
            Incorporated
      by reference from our Current Report on Form 8-K dated July 2,
      2008.(22)
            Incorporated
      by reference from our Current Report on Form 8-K dated September 22,
      2009.(23)
            Incorporated
      by reference from our Current Report on Form 8-K dated December 18,
      2009.





(A)
            Incorporated
      by reference from our Current Report on Form 8-K/A dated February 2,
      2004.(B)
            Incorporated
      by reference from our Current Report on Form 8-K dated April 4,
      2005.(C)
            Incorporated
      by reference from our Registration Statement on Form SB-2 dated April 26,
      2005.(D)
            Incorporated
      by reference from our Current Report on Form 8-K dated December 13,
      2005.





Financial
Statements





Consolidated
Financial Statements for Axion Power International, Inc. for the fiscal years
ended December 31, 2008 and 2009, respectively as set forth in Item 8 of this
Annual Report on Form 10-K.


98





SIGNATURES




In
accordance with Section 13 or 15(d) of the Exchange Act of 1934, the registrant
has duly caused this report to be signed on its behalf by the undersigned,
thereunto duly authorized.





AXION
      POWER INTERNATIONAL, INC.By:
              /s/ Thomas GranvilleThomas
      Granville, Principal Executive Officer and
                Principal
      Financial Officer and
                DirectorDated:
      March 30, 2010





In
accordance with the Exchange Act, this report has been signed below by the
following persons on behalf of the registrant and in the capacities and on the
dates indicated.




Signature
                    
                    Title
                    
                    Date/s/ Stanley A. HirschmanStanley
      A. Hirschman
                    
                    Director
                    
                    March
      30, 2010/s/ Robert G. AverillRobert
      G. Averill
                    
                    Director
                    
                    March
      30, 2010/s/ Glenn PattersonGlenn
      Patterson
                    
                    Director
                    
                    March
      30, 2010/s/ Michael KishinevskyMichael
      Kishinevsky
                    
                    Director
                    
                    March
      30, 2010/s/ Howard K. SchmidtHoward
      K. Schmidt
                    
                    Director
                    
                    March
      30, 2010/s/ D. Walker WainwrightD.
      Walker Wainwright
                    
                    Director
                    
                    March
      30, 2010/s/ David AnthonyDavid
      Anthony
                    
                    Director
                    
                    March
      30, 2010/s/ Joseph P.
BartlettJoseph
      P. Bartlett
                    
                    Director
                    
                    March
      30,
2010


99