AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 30, 1998
REGISTRATION STATEMENT NO. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_______________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
______________________
BION ENVIRONMENTAL TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
COLORADO 84-1176672
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
BION ENVIRONMENTAL TECHNOLOGIES, INC.
555 SEVENTEENTH STREET, SUITE 3310
DENVER, COLORADO 80202
(303) 294-0750
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices and place of business)
BION ENVIRONMENTAL TECHNOLOGIES, INC. FISCAL YEAR 1994 INCENTIVE PLAN
(Full Title of Plans)
JON NORTHROP, CHAIRMAN AND CEO
BION ENVIRONMENTAL TECHNOLOGIES, INC.
555 SEVENTEENTH STREET, SUITE 3310
DENVER, COLORADO 80202
(303) 294-0750
(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
________________________________________
Pursuant to General Instruction E to Form S-8, this Registration Statement is
being filed to register additional securities under the Registrant's Fiscal
Year 1994 Incentive Plan and incorporates the Registrant's prior Registration
Statement on Form S-8 relating to the Fiscal Year 1994 Incentive Plan, SEC
File No. 333-06407.
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Amount Offering Aggregate Amount of
Title of Securities to be Price Per Offering Registration
to be Registered Registered 1 Share 2 Price 3 Fee
- -------------------- ------------ ----------- ---------------- -------------
Common Stock,
$.00 par value 865,032 $7.00 $ 6,055,224 $1,786.29
(Footnotes on following page)
___________________
1 430,928 shares registered on Form S-8 filed on behalf of the Company
with the Commission on June 6, 1996.
2 Estimated solely for the purpose of calculating the amount of the
registration fee.
3 Registration fee based upon shares to be issued in the future from time
to time pursuant to the Registrant's Fiscal Year 1994 Incentive Plan,
calculated pursuant to Rule 457(h) under the Securities Act of 1933, as
amended.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents listed below in paragraphs (a) through (c) of this Item
hereby are incorporated by reference in this Registration Statement. In
addition, all documents hereafter filed by Registrant pursuant to Section
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.
(a) Registrant's Annual Report on Form 10-KSB for Registrant's fiscal
year ended June 30, 1997, filed pursuant to Section 13(a) or 15(d) of the
Exchange Act.
(b) All other reports filed by Registrant pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year ended June 30,
1997.
(c) 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.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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.
ITEM: DESCRIPTION:
- ---- -----------
4 Instruments defining the rights of holders, including Indentures:
------------------------------------------------------------------
4.1 Articles of Incorporation of Registrant (as amended) previously filed
and incorporated herein by reference.
4.2 Bylaws of Registrant (incorporated by reference to Exhibit 4.2 to the
Registrant's Form S-8 Registration Statement No. 333-06407.
4.3 Statement of Designations and Preferences of Series B Convertible
Preferred Stock previously filed and incorporated herein by reference.
5 Opinion re: legality:
----------------------
5.1 Opinion of Krys Boyle Freedman & Sawyer, P.C. dated June 29, 1998.
23 Consents of Experts and Counsel:
-----------------------------------
23.1 Consent of Krys Boyle Freedman & Sawyer, P.C. (contained in Exhibit
5.1).
23.2 Consent of Ehrhardt, Keefe, Steiner & Hottman, P.C., Certified Public
Accountants.
24 Power of attorney:
-------------------
Not applicable.
28 Information from reports furnished to state insurance regulatory
------------------------------------------------------------------
authorities:
-----
Not applicable.
99 Additional exhibits:
--------------------
None.
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.
(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.
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 Denver, State of Colorado, on June
29, 1998.
BION ENVIRONMENTAL TECHNOLOGIES, INC.
By /s/ Jon Northrop
------------------------
Jon Northrop, Chairman,
Chief Executive Officer and
Secretary
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 indicated.
SIGNATURES TITLE DATE
---------- ----- ----
/s/ Jon Northrop Chairman of the Board, June 30, 1998
- -------------------
Jon Northrop Chief Executive Officer and
Secretary (Principal Executive
Officer) and Director
/s/ Jere Northrop President and Director June 30, 1998
- --------------------
Jere Northrop
/s/ M. Duane Stutzman Treasurer (Principal Financial June 30, 1998
- -------------------------
M. Duane Stutzman and Accounting Officer) and
Director
/s/ Ronald G. Cullis Director June 30, 1998
- ------------------------
Ronald G. Cullis
/s/ John Schwanekamp Director June 30, 1998
- -----------------------
John Schwanekamp
June 29, 1998
Bion Environmental Technologies, Inc.
555 Seventeenth Street, Suite 3310
Denver, Colorado 80202
Re: Legality of Issuance of Common Shares
Gentlemen:
We have acted as counsel for Bion Environmental Technologies, Inc., a Colorado
corporation (the "Company"), in connection with the filing of a Registration
Statement on Form S8 (the "Registration Statement"), under the Securities Act
of 1933, as amended, covering the offer and sale by the Company of up to
865,032 of the Company's Common Shares issuable pursuant to its 1994 Incentive
Plan. We have reviewed the corporate action of the Company in connection with
these matters and have examined such documents, corporate records and other
instruments as we deemed necessary for the purpose of this opinion.
Based upon the foregoing, it is our opinion that:
(i) the Company is a corporation duly organized and validly existing under
the laws of the State of Colorado;
(ii) the issuance of the Common Shares has been duly authorized by the
Company; and
(iii) the 865,032 Common Shares offered, when issued and sold in the
manner described in the Registration Statement and in accordance with the
resolutions adopted by the Board of Directors of the Company, and when full
payment therefor shall have been received by the Company, will be legally
issued, fully paid and non-assessable.
We hereby consent to the use of our name in the Registration Statement and to
the filing of this opinion as an exhibit to the Registration Statement.
Very truly yours,
KRYS BOYLE FREEDMAN & SAWYER, P.C.
By: /s/ Stanley F. Freedman, P.C.
Stanley F. Freedman, P.C.
INDEPENDENT AUDITORS CONSENT
We consent to the incorporation by reference in the Registration Statement of
Bion Environmental Technologies, Inc. on Form S-8 of our report dated August
6, 1997 for the year ended June 30, 1997, appearing in Form 10-KSB of Bion
Environmental Technologies, Inc., filed with the Securities and Exchange
Commission on September 29, 1997.
/s/Ehrhardt Keefe Steiner & Hottman PC
Ehrhardt Keefe Steiner & Hottman PC
June 30, 1998
Denver, Colorado
