-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, MU6MhzYVYRkpf85F+SV+NffMV1ePDw7AnKj+oczotrGP0jVERn/gU27SILP75xql bVcaZFEu13Te2PSdWs95lA== 0001437904-09-000057.txt : 20091016 0001437904-09-000057.hdr.sgml : 20091016 20091016150346 ACCESSION NUMBER: 0001437904-09-000057 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20091016 DATE AS OF CHANGE: 20091016 EFFECTIVENESS DATE: 20091016 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BION ENVIRONMENTAL TECHNOLOGIES INC CENTRAL INDEX KEY: 0000875729 STANDARD INDUSTRIAL CLASSIFICATION: AGRICULTURE CHEMICALS [2870] IRS NUMBER: 841176672 STATE OF INCORPORATION: CO FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-162532 FILM NUMBER: 091123305 BUSINESS ADDRESS: STREET 1: C/O BOX 566 STREET 2: 1774 SUMMITVIEW WAY CITY: CRESTONE STATE: CO ZIP: 81131 BUSINESS PHONE: (212) 758-6622 MAIL ADDRESS: STREET 1: C/O BOX 566 STREET 2: 1774 SUMMITVIEW WAY CITY: CRESTONE STATE: CO ZIP: 81131 FORMER COMPANY: FORMER CONFORMED NAME: RSTS CORP DATE OF NAME CHANGE: 19930328 S-8 1 bions8.txt BION ENVIRONMENTAL TECHNOLOGIES FORM S-8 As Filed With the Securities and Exchange Commission on October 16, 2009 Registration Statement No. __________ _____________________________________________________________________________ UNITED STATES 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 in its Charter) Colorado 84-1176672 - ------------------------------- ------------------------------------ (State or other jurisdiction of (I.R.S. Employer Identification No.) incorporation or organization) Box 566/1774 Summitview Way, Crestone, Colorado 81131 ------------------------------------------------------------ (Address of Principal Executive Offices) (Zip Code) BION ENVIRONMENTAL TECHNOLOGIES, INC. 2006 CONSOLIDATED INCENTIVE PLAN ------------------------------------- (Full title of plan) Mark A. Smith, President Bion Environmental Technologies, Inc. Box 566/1774 Summitview Way, Crestone, Colorado 81131 --------------------------------------------------------- (Name and address of agent for service) (212) 758-6622 ------------------------------------------------------------- (Telephone number, including area code, for agent of service) Copy to: Jon D. Sawyer, Esq. Jin, Schauer & Saad LLC 600 Seventeenth Street, Suite 2700 South Denver, Colorado 80202 (720) 889-2211 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] (Do not check if a smaller reporting company) CALCULATION OF REGISTRATION FEE - ---------------------------------------------------------------------------- Proposed Proposed Maximum Maximum Title of Offering Aggregate Amount of Securities to Amount to be Price Offering Registration be Registered Registered(1) Per Share Price Fee - ---------------------------------------------------------------------------- Common Stock, 1,800,000 $2.65 (2) $4,770,000 (2) $266.17 No Par Value ------- Total $266.17 - ---------------------------------------------------------------------------- (1) Represents increase in the total number of shares reserved for issuance under the 2006 Consolidated Incentive Plan. A total of 4,200,000 shares has previously been registered under a registration statement on Form S-8 (File No. 333-145153) with respect to the 2006 Consolidated Incentive Plan. (2) Based on the closing price of Registrant's Common Stock on the OTC Bulletin Board on October 15, 2009, of $2.65. STATEMENT UNDER GENERAL INSTRUCTION E REGISTRATION OF ADDITIONAL SECURITIES The registrant, Bion Environmental Technologies, Inc., previously filed a registration statement on Form S-8 with the Securities and Exchange Commission (Sec File No. 333-145153) in connection with the registration of an aggregate of 3,200,000 shares of common stock to be issued under the 2006 Consolidated Incentive Plan, and on June 18, 2008, an amendment was filed increasing the number of shares being registered to 4,200,000. Pursuant to General Instruction E of Form S-8, this registration statement is filed solely to register an additional 1,800,000 shares of the Company's common stock for issuance under the 2006 Consolidated Incentive Plan. This increase was approved by the registrant's Board of Directors on November 14, 2008. Pursuant to Instruction E, the contents of the previously filed registration statement on Form S-8 (File No. 333-145153) are hereby incorporated by reference into this registration statement. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 8. Exhibits. Exhibit Number Description Location - ------- ----------- --------- 5.1 Opinion of Jin, Schauer & Saad LLC regarding legality Filed herewith electronically 23.1 Consent of GHP Horwath, P.C. Filed herewith electronically 23.2 Consent of Jin, Schauer & (Contained in Exhibit 5.1) Saad LLC 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 Crestone and State of Colorado on the 16th day of October 2009. BION ENVIRONMENTAL TECHNOLOGIES, INC. By:/s/ Mark A. Smith Mark A. Smith, President (Chief Executive Officer) and Interim Chief Financial Officer (Principal Financial and Accounting Officer) Pursuant to the requirements of the Securities Act of 1933, this Form S-8 Registration Statement has been signed below by the following persons in the capacities and on the dates indicated. Signature Title Date --------- ----- ---- SIGNATURE TITLE DATE /s/ Mark A. Smith President, General Counsel, October 16, 2009 Mark A. Smith Interim Chief Financial Officer and Director /s/ Jon Northrop Secretary and Director October 16, 2009 Jon Northrop EX-5 2 ex5.txt EXHIBIT 5.1 EXHIBIT 5.1 JIN, SCHAUER & SAAD LLC TELEPHONE ATTORNEYS AT LAW FACSIMILE (720) 889-2211 SUITE 2700 SOUTH TOWER (720) 889-2222 600 SEVENTEENTH STREET DENVER, COLORADO 80202 October 16, 2009 Board of Directors Bion Environmental Technologies, Inc. Box 566/1774 Summitview Way Crestone, Colorado 81131 Dear Board of Directors: We have acted as counsel to Bion Environmental Technologies, Inc., a Colorado corporation (the "Company"), in connection with the preparation and filing with the Securities and Exchange Commission of an amendment to a Registration Statement on Form S-8 (the "Registration Statement"), pursuant to which the Company is registering under the Securities Act of 1933, as amended, 1,800,000 shares (the "Shares") of its common stock, $.0001 par value (the "Common Stock") which may be issued under the Company's 2006 Consolidated Incentive Plan. This opinion is being rendered in connection with the filing of the Registration Statement. All capitalized terms used herein and not otherwise defined shall have the respective meanings given to them in the Registration Statement. In connection with this opinion, we have examined the Company's Articles of Incorporation and Bylaws, both as currently in effect; such other records of the corporate proceedings of the Company and certificates of the Company's officers as we have deemed relevant; and the Registration Statement and the exhibits thereto. In our examination, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photostatic copies and the authenticity of the originals of such copies. Based upon the foregoing and subject to the limitations set forth below, we are of the opinion that the Shares have been duly and validly authorized by the Company and will be, when issued in accordance with the Company's 2006 Consolidated Incentive Plan, duly and validly issued and fully paid and non- assessable. Our opinion is limited to the laws of the State of Colorado, and we express no opinion with respect to the laws of any other jurisdiction. No opinion is expressed herein with respect to the qualification of the Shares under the securities or blue sky laws of any state or any foreign jurisdiction. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, /s/ Jin, Schauer & Saad LLC JIN, SCHAUER & SAAD LLC EX-23 3 ex23.txt EXHIBIT 23.1 EXHIBIT 23.1 CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated September 23, 2009 (which expresses an unqualified opinion and includes an explanatory paragraph relating to the Company's ability to continue as a going concern) relating to the consolidated financial statements of Bion Environmental Technologies, Inc. and subsidiaries as of June 30, 2009 and for each of the years in the two- year period ended June 30, 2009. /s/ GHP HORWATH, P.C. Denver, Colorado October 16, 2009 -----END PRIVACY-ENHANCED MESSAGE-----