As Filed With the Securities and Exchange Commission on April 5, 2002
Registration Statement No. ___________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BION ENVIRONMENTAL TECHNOLOGIES, INC.
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(Exact name of registrant as specified in its charter)
Colorado 84-1176672
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(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
18 East 50th Street, 10th Floor
New York, New York 10022
(212) 758-6622
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(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices and place of business)
Bion Environmental Technologies, Inc. 2002 Incentive Plan
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(Full Title of Plan)
David Mitchell, Chairman of the Board
18 East 50th Street, 10th Floor
New York, New York 10022
(212) 758-6622
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(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy To:
STANLEY F. FREEDMAN, ESQ.
Krys Boyle Freedman & Sawyer, P.C.
600 Seventeenth Street, Suite 2700 South
Denver, Colorado 80202-5427
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Amount Offering Aggregate Amount of
Title of Securities to be Price Per Offering Registration
Registered Registered Share (1) Price (1) Fee
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Common Stock, no par value 3,000,000 $0.92 $2,760,000 $253.91
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(1) Estimated solely for the purpose of calculating the amount of the
registration fee. The registration fee is based on the average of the
closing bid and ask prices of the Registrant's Common Stock on March 19,
2002, as reported on the OTC Bulletin Board.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form
S-8 will be sent or given to employees and/or nonemployee directors, as
appropriate, as specified by Rule 428(b)(1), and are not being filed with the
Commission, either as part of this Registration Statement or as Prospectuses
or Prospectus Supplements pursuant to Rule 424 and in accordance with the
instructions to Part I. These documents and the documents incorporated by
reference pursuant to Item 3 of Part II of this Registration Statement, taken
together, shall constitute a Prospectus that meets the requirements of Section
10(a) of the Securities Act of 1933, as amended.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The documents listed below in paragraphs (1) through (8) of this Item
hereby are incorporated by reference in this Registration Statement. In
addition, all documents hereafter filed by Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
("Exchange Act"), prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents.
(1) Annual Report on Form 10-KSB for the fiscal year ended June 30, 2001,
Exchange Act file number 0-19333.
(2) Amendment on Form 10-KSB/A to the Annual Report on Form 10-KSB for
the fiscal year ended June 30, 2001, as filed with the Commission on
February 20, 2002, Exchange Act file number 0-19333.
(3) Quarterly Report on Form 10-QSB for the period ended December 31, 2001
as filed with the Commission on February 14, 2002, Exchange Act file
number 0-19333.
(4) Quarterly Report on Form 10-QSB for the period ended September 30,
2001 as filed with the Commission on November 14, 2001, Exchange Act
file number 0-19333.
(5) Current Report on Form 8-K as filed with the Commission on January 30,
2002, Exchange Act file number 0-19333.
(6) Current Report on Form 8-K/A as filed with the Commission on
January 30, 2002, Exchange Act file number 0-19333.
(7) Definitive Proxy Statement, as filed with the Commission on March 8,
2002.
(8) Description of Registrant's Common Stock, no par value, as set forth in
Item 11 of Registrant's Registration Statement on Form 10, as filed
with the Commission on June 5, 1991.
Item 4. Description of Securities.
Not applicable.
Page 1
Item 5. Interests of Named Experts and Counsel.
Members of the law firm of Krys Boyle Freedman & Sawyer, P.C. (which firm
is providing an opinion with respect to the legality of the shares included in
this Registration Statement) have beneficial ownership of an aggregate of
approximately 120,000 shares of the Registrant's Common Stock.
Item 6. Indemnification of Directors and Officers.
The Colorado Business Corporation Act generally provides that a
corporation may indemnify its directors, officers, employees and agents
against liabilities and reasonable expenses (including attorneys' fees)
incurred in connection with any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or investigative, and
whether formal or informal (a "Proceeding"), by reason of being or having been
a director, officer, employee, fiduciary or agent of the Corporation, if such
person acted in good faith and reasonably believed that his conduct in his
official capacity with the Corporation was in the best interests of the
Corporation (or, with respect to employee benefit plans, was in the best
interests of the participants in or beneficiaries of the plan), and in all
other cases his conduct was at least not opposed to the Corporation's best
interests. In the case of a criminal proceeding, the director, officer,
employee or agent must have had no reasonable cause to believe his conduct was
unlawful. The Corporation may not indemnify a director, officer, employee or
agent in connection with a proceeding by or in the right of the Corporation if
such person is adjudged liable to the Corporation, or in a proceeding in which
such person is adjudged liable for receipt of an improper personal benefit.
Unless limited by the Corporation's Articles of Incorporation, the Corporation
shall be required to indemnify a director or officer of the Corporation who is
wholly successful, on the merits or otherwise, in defense of any proceeding to
which he was a party, against reasonable expenses incurred by him in
connection with the proceeding. The foregoing indemnification is not
exclusive of any other rights to which those indemnified may be entitled under
applicable law, the Corporation's Articles of Incorporation, Bylaws,
agreement, vote of shareholders or disinterested directors, or otherwise.
The Corporation's Articles of Incorporation and Bylaws generally provide
for indemnification of directors, officers, employees and agents to the
fullest extent allowed by law.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number Description Location
4.1 Articles of Incorporation Previously filed and incorporated
herein by reference
4.2 Bylaws Previously filed and incorporated
herein by reference
5.1 Opinion of Krys Boyle Filed electronically herewith
Freedman & Sawyer, P.C.
Page 2
23.1 Consent of Krys Boyle Contained in Exhibit 5.1
Freedman & Sawyer, P.C.
23.2 Consent of BDO Seidman, LLP, Filed electronically herewith
Certified Public Accountants
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination
of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's Annual Report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange of 1934 (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
Page 3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of New York, State of New York on April
5, 2002
BION ENVIRONMENTAL TECHNOLOGIES, INC.
By: /s/ David J. Mitchell
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David J. Mitchell, Chief Executive
Officer, President and Chairman
(Principal Executive Officer)
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date(s) indicated.
Signatures Title Date
/s/ David J. Mitchell Chief Executive Officer, April 5, 2002
David J. Mitchell President and Chairman
/s/ David Fuller Principal Accounting Officer April 5, 2002
David Fuller
-------------------------- Director April _, 2002
Jere Northrop
/s/ Salvatore J. Zizza Secretary and Director April 5, 2002
Salvatore J. Zizza
/s/ Andrew G. Gould Director April 5, 2002
Andrew G. Gould
-------------------------- Director April _, 2002
Howard E. Chase
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