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Axion’s auditors have required that it have a plan to remedy a significant working capital deficiency before the 2019 financial statements are issued. This requirement has not been disclosed by Axion. It is not clear from any of Axion’s public filings whether the financing plan will satisfy the auditors’ concerns and the 2019 financial statements are still not available to the public. Does Axion have a signed investment agreement with KUAM by which KUAM committed to the latest financing? If so, why has Axion not filed that agreement on SEDAR as a material contract so that all shareholders can know its terms?What did Axion disclose to the BCSC to justify lifting the CTO?Is the $20 million financing unconditionally committed by KUAM?Are there any conditions Axion needs to satisfy under the Investment Agreement apart from getting TSX Venture Exchange (“TSX-V”) approval? What are they and has Axion satisfied them?Axion sought the partial revocation of the CTO on the basis of financial need. Will Axion provide disclosure of the financial circumstances that required it to seek the partial revocation?What portion of the proceeds of the $8 million will be used to pay incurred unpaid expenses, including legal fees, payroll fees and audit fees? What amount will be applied to repay debt? What amount is expected to be left over for general working capital?Will Axion be providing minority shareholder protections required by TSX-V for related party transactions, including a minority shareholder approval vote? If not, why not?Axion remains in default of its continuous disclosure obligations. It has not filed its 2019 or 2020 financial statements or many other required periodic filings. What is the reason for this failure and what is the timetable for filing these?Have the auditors even signed off on the 2019 financial statements? Does the latest financing satisfy the auditors’ requirement for a plan to remedy Axion’s working capital deficiency?Why has Axion not provided a detailed, updated press release on its financial condition or other developments affecting its business since the imposition of the CTO? It is not clear from the April 1 press release when or whether Axion will be able to complete all of the filings that are required for 2020 and 2021 to bring it into compliance with the conditions for lifting the CTO permanently.
Will the latest announced financing have the same abortive outcome? In light of the last failed financing, the Concerned Shareholders believe that Axion has some explaining to do and that it should be required to update its public disclosure, including by providing a clear and comprehensive explanation of the latest announced financing and the circumstances justifying partial revocation of the CTO. “The April 1 press release does not resolve doubts about whether the financing is real and is actually going to happen,” said Michael Bonner. “Last July Axion announced a similar transaction with the very same investor to raise proceeds of $7 million. Nothing came of that transaction and Axion has never publicly disclosed its failure to complete the transaction or the reasons for the failure.”
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In particular, the shareholders need answers to the following questions, among others: “Axion has been subject to a cease trade order since August of last year and has not succeeded in raising significant financing throughout that time,” said Nithinan Boonyawattanapisut of Cern One Limited, a significant shareholder of Axion. Ms. Boonyawattanapisut added, “throughout that time Axion has maintained an information blackout about its financial condition and developments in its business. That lack of transparency has hurt Axion’s business and commercial prospects and reflects the current management’s lack of direction and vision.”
This conduct by the incumbent directors has driven the former CEO to commence litigation to reverse his dismissal and exclusion from the affairs of Axion, engage directly with securities regulators about the conduct of the incumbent directors and management and to join with the Concerned Shareholders to initiate a proxy contest to remove the incumbent directors. Advisors attempted to entrench themselves and increase Mr. Yamazaki’s ownership of Axion;failed to issue regular updates to let shareholders know what is happening with Axion’s business;dismissed the CEO;ignored the former CEO’s information rights as a director;refused interest free financing from the former CEO in the face of missed payrolls and employee defection at two of Axion’s key operating subsidiaries;devised outlandish and false conspiracy claims and claims of intellectual property theft which are being advanced in litigation against the former CEO and others; andmounted repeated and ongoing attempts, at Axion’s expense, to interfere with the voting rights of the Concerned Shareholders.
Instead of advancing the Axion business plan, Axion’s incumbent directors have pursued a value destruction path. In particular, they have: Ms. Boonyawattanapisut concluded: “During the past eight months, Axion has not lived up to public company standards of transparency. One of the directors, its former CEO, has been consistently locked out of the information flow that directors are entitled to. To make himself heard, he has had to take extraordinary measures including becoming a party to the recent BCSC hearing that partially lifted the cease trade order to get information about Axion’s affairs. It’s time for Axion to share information and live up to its public company duties.’’
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