UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
INFORMATION TO BE INCLUDED IN THE STATEMENTS FILED PURSUANT
TO RULE 13D-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13D-2(a)
Amendment No. 1
BION ENVIRONMENTAL TECHNOLOGIES, INC.
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(Name of Issuer)
Common Stock
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(Title of Class of Securities)
09061Q 10 9
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(CUSIP Number)
Copy to:
David J. Mitchell Stanley F. Freedman
18 East 50th Street, 10th Floor Krys Boyle Freedman & Sawyer, P.C.
New York, NY 10022 600 17th Street, #2700S
(212) 758-6622 Denver, Colorado 80202
(303) 893-2300
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
January 15, 2002
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Sections 240.13d-1(e), 240.13d-1(f) or
240.13d-1(g), check the following box [ ].
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Section 240.13d-7 for
other parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
page 1 of 11
CUSIP No. 09061Q 10 9
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1 Names of Reporting Persons.
I.R.S Identification Nos. of above persons (entities only)
D2 Co., LLC 13-4113345
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2 Check the Appropriate Box if a Member of a Group (See Instructions)
(a)
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(b)
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3 SEC Use Only
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4 Source of Funds (See Instructions) OO
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5 Check if Disclosure of Legal Proceedings Is Required Pursuant to Items
2(d) or 2(e)
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6 Citizenship or Place of Organization Delaware
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7 Sole Voting Power 7,718,401
Number Of -----------------------------------------------------------
Shares Bene-
ficially 8 Shared Voting Power 594,835
Owned by Each -----------------------------------------------------------
Reporting
Person With 9 Sole Dispositive Power 557,326
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10 Shared Dispositive Power 594,835
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11 Aggregate Amount Beneficially Owned by Each Reporting Person: 8,313,236
shares
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12 Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions)
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13 Percent of Class Represented by Amount in Row (11) 15.8%
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14 Type of Reporting Person (See Instructions)
OO
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CUSIP No. 09061Q 10 9
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1 Names of Reporting Persons.
I.R.S Identification Nos. of above persons (entities only)
David J. Mitchell
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2 Check the Appropriate Box if a Member of a Group (See Instructions)
(a)
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(b)
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3 SEC Use Only
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4 Source of Funds (See Instructions) OO
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5 Check if Disclosure of Legal Proceedings Is Required Pursuant to Items
2(d) or 2(e)
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6 Citizenship or Place of Organization United States
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7 Sole Voting Power 18,111,828
Number Of -----------------------------------------------------------
Shares Bene-
ficially 8 Shared Voting Power 594,835
Owned by Each -----------------------------------------------------------
Reporting
Person With 9 Sole Dispositive Power 10,950,753
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10 Shared Dispositive Power 594,835
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11 Aggregate Amount Beneficially Owned by Each Reporting Person: 18,706,663
shares
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12 Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions)
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13 Percent of Class Represented by Amount in Row (11) 29.7%
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14 Type of Reporting Person (See Instructions)
IN
page 3 of 11
CUSIP No. 09061Q 10 9
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1 Names of Reporting Persons.
I.R.S Identification Nos. of above persons (entities only)
Atlantic Partners LLC
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2 Check the Appropriate Box if a Member of a Group (See Instructions)
(a)
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(b)
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3 SEC Use Only
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4 Source of Funds (See Instructions) OO
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5 Check if Disclosure of Legal Proceedings Is Required Pursuant to Items
2(d) or 2(e)
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6 Citizenship or Place of Organization Delaware
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7 Sole Voting Power 10,373,427
Number Of -----------------------------------------------------------
Shares Bene-
ficially 8 Shared Voting Power 0
Owned by Each -----------------------------------------------------------
Reporting
Person With 9 Sole Dispositive Power 10,373,427
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10 Shared Dispositive Power 0
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11 Aggregate Amount Beneficially Owned by Each Reporting Person: 10,373,427
shares
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12 Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions)
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13 Percent of Class Represented by Amount in Row (11) 16.5%
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14 Type of Reporting Person (See Instructions)
OO
page 4 of 11
CUSIP No. 09061Q 10 9
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EXPLANATORY NOTE
This amended Schedule 13D, dated January 15, 2002, relates to the
beneficial ownership of D2 Co., LLC and Atlantic Partners LLC, of which David
Mitchell is the sole member, of the Common Stock of Bion Environmental
Technologies, Inc.
In January 15, 2002, as a result of significant transactions in which
Bion Technologies, Inc. was involved, certain Convertible Notes held by or for
the benefit of the Reporting Persons were automatically converted into common
stock, and the terms of certain warrants were changed. This Amendment
reflects these changes, and also updates other information concerning the
beneficial ownership of the Reporting Persons.
ITEM 1. SECURITY AND ISSUER
The title of the class of equity securities to which this statement
relates is Common Stock, no par value per share (the "Common Stock"), of Bion
Environmental Technologies, Inc., a Colorado corporation, which has its
principal executive offices at 18 East 50th Street, 10th Floor, New York, New
York 10022 (the "Issuer" or "Bion").
ITEM 2. IDENTITY AND BACKGROUND
The information set forth herein is given with respect to (1) D2 Co., LLC
("D2"), a Delaware limited liability company, (2) Atlantic Partners LLC
("Atlantic"), a Delaware limited liability company, and (3) David Mitchell, a
U.S. citizen, the sole member of D2 and Atlantic. D2 and Atlantic are engaged
in the investment in and management of other companies. David Mitchell is
currently Chairman, President, CEO and a Director of Bion. During the last
five years, none of these persons or any executive officer, director or
controlling person of such person, has been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors). In addition, during
the last five years, none of these persons, or any executive officer, director
or controlling person of such person was a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction and as a result of
such proceeding was or is subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating activities subject
to, Federal or state securities laws or finding any violation with respect to
such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
The funds used by D2 and Atlantic to purchase the notes and warrants
referred to herein consisted of the capital contributions of David Mitchell
and general working capital. In addition, some of the notes were received for
management services performed.
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CUSIP No. 09061Q 10 9
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ITEM 4. PURPOSE OF TRANSACTION
As a result of transactions in which Bion was involved on January 15,
2002, notes held by D2 and a trust for D2 were converted into the Issuer's
Common Stock. In addition, the terms of warrants held by D2 and Atlantic were
changed. The conversions and changes were in compliance with the terms of the
related notes and warrants.
The notes and warrants had been acquired by the Reporting Persons for the
purpose of obtaining a significant investment in the Issuer. The notes were
acquired pursuant to the terms of a management agreement between D2 and Bion.
Under the terms of the management agreement, D2 obtained the right to name
three designees to the Board of Directors of Bion, and certain other rights.
Giving effect to the conversion and changes, D2, Atlantic and David
Mitchell now have beneficial ownership of shares of Bion's Common Stock as set
forth in Item 5 hereof. D2 will also receive additional shares of Bion's
Common Stock pursuant to the terms of a management agreement with Bion for
services to be provided by D2. Under this agreement, D2 receives shares of
Common Stock for management services equal in value to $600,000 for the
calendar year 2002 and $750,000 for the calendar year 2003.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
(a) The following sets forth the aggregate number and percentage (based
on 52,671,128 shares of Common Stock outstanding as of January 31, 2002) of
shares of Common Stock owned beneficially by D2, Atlantic and David Mitchell
as of January 31, 2002:
Shares of Percentage of Shares
Common Stock of Common Stock
Beneficially Owned Beneficially Owned
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D2 Co., LLC 8,313,236 (1) 15.8%
Atlantic Partners LLC 10,373,427 (2) 16.5%
David J. Mitchell 18,706,663 (3) 29.7%
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(1) Consists of 527,326 shares held directly by D2; 594,835 shares held
by the Trust Under Deferred Compensation Plan for D2 Co., LLC, for
the benefit of D2; 30,000 shares underlying warrants held by D2;
and 7,161,075 shares over which D2 has voting control pursuant to
a Stock Voting Agreement dated August 1, 2001, with Mark A. Smith,
Kelly Smith, LoTayLingKyur, Inc., LoTayLingKyur Foundation and Dublin
Holding Ltd.
(2) Represents shares issuable upon exercise of SV1 and SV2 warrants
held by Atlantic.
(3) Includes the shares described in Notes (1) and (2) above, and 20,000
shares held by a minor child of David Mitchell.
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CUSIP No. 09061Q 10 9
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(b) David J. Mitchell, as sole member of D2 and Atlantic has sole power
to vote and dispose of all 527,326 shares Common Stock by D2 and all
10,373,427 shares underlying the warrants held by Atlantic. With regard to
594,835 shares of Common Stock held by the Trust Under Deferred Compensation
Plan for D2 Co., LLC, the trustee Sam Spitz, CPA holds the power to vote and
dispose of the shares. Mr. Spitz was selected by David J. Mitchell to serve
as trustee and would be expected to act in accordance with Mr. Mitchell's
wishes. As a result, Mr. Mitchell and D2 may be considered as sharing the
power to vote and dispose of the shares held by the trust.
With regard to the 7,161,075 shares over which D2 and Mr. Mitchell have
the sole power to vote pursuant to a Stock Voting Agreement dated August 1,
2001, the power to dispose of the shares has been retained by the record
holders. The record holders are as follows:
Name Number of Shares
---- ----------------
Mark A. Smith and Kelly Smith,
Jointly 476,226
Mark A. Smith Rollover IRA 596,822
Kelly Smith Rollover IRA 509,036
Dublin Holding Ltd. 2,805,653
LoTayLingKyur, Inc. 57,152
LoTayLingKyur Foundation 2,716,186
(c) The following transactions in the securities of Bion were effected
in the last 60 days by the persons listed under (a) above:
(i) On January 15, 2002, the principal and accrued interest of
notes held by D2 Co., LLC aggregating $277,658 were converted into 370,211
shares of Common Stock at a conversion price of $0.75 per share.
(ii) On January 15, 2002, the principal and accrued interest of
notes held by the Trust Under Deferred Compensation Plan for D2 Co., LLC
aggregating $270,477 were converted into 360,636 shares of Common Stock at a
conversion price of $0.75 per share.
(iii) On December 31, 2001, 153,215 shares of Common Stock were
issued to the Trust Under Deferred Compensation Plan for D2 Co., LLC for
management fees earned during the quarter ended December 31, 2001, of
$125,000.
(iv) On January 15, 2002, the warrants held by Atlantic Partners
LLC were restructured in conformance with the terms of the warrants to make
them exercisable at $0.75 per share for 10,373,427 shares of Common Stock.
During December 2001, Atlantic Partners LLC acquired these warrants from
Southview, Inc., a corporation wholly owned by David J. Mitchell.
(d) Not applicable.
(e) Not applicable.
page 7 of 11
CUSIP No. 09061Q 10 9
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ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER
Under the terms of the agreement relating to the warrants held by
Atlantic, Bion is required to file a registration statement with the
Securities and Exchange Commission to register the shares issuable on exercise
of the warrants for resale by Atlantic. The registration statement is
required to be filed within six months after any exercise of the warrants.
Under the terms of a Stock Voting Agreement dated August 1, 2001, with
Mark A. Smith, Kelly Smith LoTayLingKyur, Inc., LoTayLingKyur Foundation and
Dublin Holdings Ltd., D2 has the right to vote all of the shares held by these
persons or in certain IRA accounts held by them, at all meetings of Bion's
shareholders through December 31, 2005. The voting rights extended to all
matters except the approval of a merger or a sale of all or substantially all
of Bion's assets. The Stock Voting Agreement also places certain restrictions
on the sale of the shares covered by the agreement. As of January 31, 2002, a
total of 7,161,075 shares were subject to this agreement.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
The following documents are filed as exhibits:
Exhibit Description
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1 Joint Filing Agreement, dated as of January 30, 2002,
among D2 Co., LLC, Atlantic, Inc. and David Mitchell
2 Warrant Purchase Agreement, dated December 23, 1999,
by and between D2 Co., LLC and Bion Environmental
Technologies, Inc. (1)
3 Management Agreement, dated December 23, 1999, by and
between D2 Co., LLC and Bion Environmental Technologies (1)
4 Form of Note and Warrant Purchase Agreement, dated March
31, 2000, by and between D2 Co., LLC and Bion Environmental
Technologies (2)
5 Form of Bridge Note, dated March 31, 2000, payable by
Bion Environmental Technologies, Inc. to D2 Co., LLC (2)
6 Form of Bridge Warrant, dated March 31, 2000, issued by
Bion Environmental Technologies, Inc. to D2 Co., LLC (2)
7 Shareholders' Agreement, dated December 23, 1999, by and
among D2 Co., LLC, Mark A. Smith, Jere Northrop, Jon
Northrop, Lotaylingkyur, Inc., LTLK Defined Benefit Plan
and Dublin Holding, Ltd. (1)
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CUSIP No. 09061Q 10 9
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8 Stock Voting Agreement dated August 1, 2002 (3)
9 Agreement between Atlantic, Inc. and Bion Environmental
Technologies, Inc. dated February 7, 2001 (4)
10 Agreement between D2 Co., LLC and Bion Environmental
Technologies, Inc. dated August 1, 2001 (5)
11 Amendment to Management Agreement between D2 Co., LLC
and Bion Environmental Technologies, Inc. dated
February 27, 2001 (6)
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(1) Incorporated by reference to Exhibits 10.2, 10.1 and 10.3, respectively,
to the Form 8-K filed with the Securities and Exchange Commission on
December 23, 1999.
(2) Previously filed.
(3) Incorporated by reference to Exhibit 10.9 to the Report on Form 8-K
dated September 6, 2001, filed by Bion Environmental Technologies,
Inc., SEC File No. 0-19333.
(4) Incorporated by reference to Exhibit 99.2 to the Report on Form 8-K
dated December 1, 2000, filed by Bion Environmental Technologies, Inc.,
SEC File No. 0-19333.
(5) Incorporated by reference to Exhibit 10.11 to the Report on Form 8-K
dated September 6, 2001, filed by Bion Environmental Technologies, Inc.,
SEC File No. 0-19333.
(6) Incorporated by reference to Exhibit 99.1 to the Report on Form 8-K
dated December 1, 2000, filed by Bion Environmental Technologies, Inc.,
SEC File No. 0-19333.
page 9 of 11
CUSIP No. 09061Q 10 9
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Date: February 13, 2002 D2 CO., LLC
By: /s/ David J. Mitchell
Name: David J. Mitchell
Title: Sole Member
ATTENTION: INTENTIONAL MISSTATEMENTS OR OMISSIONS OF FACT CONSTITUTE FEDERAL
CRIMINAL VIOLATIONS (SEE 18 U.S.C. 1001).
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Date: February 13,2002 /s/ David J. Mitchell
David J. Mitchell
ATTENTION: INTENTIONAL MISSTATEMENTS OR OMISSIONS OF FACT CONSTITUTE FEDERAL
CRIMINAL VIOLATIONS (SEE 18 U.S.C. 1001).
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Date: February 13, 2002 ATLANTIC PARTNERS LLC
By: /s/ David J. Mitchell
Name: David J. Mitchell
Title: Sole Member
ATTENTION: INTENTIONAL MISSTATEMENTS OR OMISSIONS OF FACT CONSTITUTE FEDERAL
CRIMINAL VIOLATIONS (SEE 18 U.S.C. 1001).
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CUSIP No. 09061Q 10 9
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JOINT FILING AGREEMENT
In according with Rule 13d-1(f) under the Securities Exchange Act of
1934, as amended, the undersigned hereby agrees to the joint filing on behalf
of each of them of a statement on Schedule 13D (including amendments thereto)
with respect to the no par value Common Stock of Bion Environmental
Technologies, Inc. and that this agreement be included as an Exhibit to such
joint filing. This agreement may be executed in any number of counterparts
all of which when taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned hereby executes this agreement this
31st day of January 2002.
D2CO., LLC
By:/s/ David J. Mitchell
Name: David J. Mitchell
Title: Sole Member
/s/ David J. Mitchell
David J. Mitchell
ATLANTIC PARTNERS LLC
By:/s/ David J. Mitchell
Name: David J. Mitchell
Title: Sole Member
page 11 of 11