<PAGE> 1
REGISTRATION NO. ___________
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
--------------------
BADGER METER, INC.
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Wisconsin 39-0143280
- --------------------------------- -------------------
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
4545 West Brown Deer Road
Milwaukee, Wisconsin 53223
---------------------------------------- ----------
(Address of principal executive offices) (Zip Code)
Badger Meter, Inc. 1997 Stock Option Plan
-----------------------------------------
(Full title of the plan)
Deirdre C. Elliott
Badger Meter, Inc.
4545 West Brown Deer Road
Milwaukee, Wisconsin 53223
(414) 355-0400
---------------------------------------------------
(Name, address and telephone number, including area
code, of agent for service)
--------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================================
Title of Amount Proposed Maximum Proposed Maximum
Securities to be to be Offering Price Aggregate Offering Amount of
Registered Registered Per Share* Price* Registration Fee
<S> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
Common Stock,
$1.00 par value 200,000 shares $ 25.5 $ 25.063 $ 1,518.94
====================================================================================================================================
</TABLE>
* Estimated pursuant to Rule 457(c) and (h) under the Securities Act of 1933
solely for the purpose of calculating the registration fee based upon the
market value of the shares of Common Stock as determined by the average of
the high and low prices of the Common Stock on the American Stock Exchange on
June 2, 1997.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document or documents containing the information specified in
Part I are not required to be filed with the Securities and Exchange Commission
(the "Commission") as part of this Form S-8 Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Commission by Badger Meter,
Inc. (the "Company") are hereby incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the year
ended December 31, 1996, which includes audited financial statements as of and
for the year ended December 31, 1996.
(b) All other reports filed by the Company pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since December 31, 1996.
(c) The description of the Common Stock, par value $1.00 per
share, of the Company included in Registration Statement No. 0- 2596 on Form
8-A, dated July 26, 1971, as amended by Form 8, dated January 8, 1987, and any
amendments or reports filed for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of filing
of this Registration Statement and prior to such time as the Company files a
post-effective amendment to the Registration Statement which indicates that all
securities offered hereby 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.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the securities being offered hereby will be passed
on for the Company by Foley & Lardner, Milwaukee, Wisconsin. Edwin P. Wiley
and John F. Callan, partners in the firm of Foley & Lardner, are trustees of a
number of trusts for the benefit of various members of the Wright family. As
trustees they may be deemed to have beneficial ownership over the shares of the
Company's Common Stock held in those trusts. The trustees have no voting power
and shared investment power over the shares held by the trusts because the
shares have been deposited in the Badger Meter Voting Trust. The trustees may
be deemed to have beneficial ownership of 526,400 shares of the Company's Class
B Common Stock and 27,656 shares of the Company's Common Stock. As of April
25, 1997, members of Foley & Lardner, attorneys who participated in the
preparation of this Registration Statement, including Mr. Wiley and Mr. Callan,
beneficially owned 28,656 shares of the Company's Common Stock, and 526,600
shares of Class B Common Stock.
-2-
<PAGE> 3
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Pursuant to the Wisconsin Business Corporation Law and the
Company's Restated By-laws, as amended, directors and officers of the Company
are entitled to mandatory indemnification from the Company against certain
liabilities and expenses (i) to the extent such officers or directors are
successful in the defense of a proceeding and (ii) in proceedings in which the
director or officer is not successful in defense thereof, unless (in the latter
case only) it is determined that the director or officer breached or failed to
perform his duties to the Company and such breach or failure constituted: (a)
a willful failure to deal fairly with the Company or its shareholders in
connection with a matter in which the director or officer had a material
conflict of interest; (b) a violation of the criminal law unless the director
or officer has reasonable cause to believe his or her conduct was lawful or had
no reasonable cause to believe his or her conduct was unlawful; (c) a
transaction from which the director or officer derived an improper personal
profit; or (d) willful misconduct. It should be noted that the Wisconsin
Business Corporation Law specifically states that it is the public policy of
Wisconsin to require or permit indemnification in connection with a proceeding
involving securities regulation, as described therein, to the extent required
or permitted as described above. Additionally, under the Wisconsin Business
Corporation Law, directors of the Company are not subject to personal liability
to the Company, its shareholders or any person asserting rights on behalf
thereof for certain breaches or failures to perform any duty resulting solely
from their status as directors except in circumstances paralleling those in
subparagraphs (a) through (d) outlined above.
The indemnification provided by the Wisconsin Business Corporation
Law and the Company's Restated By-laws is not exclusive of any other rights to
which a director or officer may be entitled.
Expenses for the defense of any action for which indemnification
may be available may be advanced by the Company under certain circumstances.
The Company maintains a liability insurance policy for its
directors and officers as permitted by Wisconsin law which may extend to, among
other things, liability arising under the Securities Act of 1933, as amended.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
The following exhibits have been filed (except where otherwise
indicated) as part of this Registration Statement:
(4.1) Badger Meter, Inc. 1997 Stock Option Plan
(4.2) Form of Stock Option Agreement used in connection with the
Badger Meter, Inc. 1997 Stock Option Plan
(4.3) Restated Articles of Incorporation of Badger Meter, Inc.
[Incorporated by reference from Exhibit 4.3 to the
Company's Registration Statement on Form S-8 (Registration
No. 33-65618)]
(5.0) Opinion of Foley & Lardner
(23.1) Consent of Ernst & Young LLP
-3-
<PAGE> 4
(23.2) Consent of Foley & Lardner (contained in Exhibit (5.0)
hereto)
(24.1) Power of Attorney relating to subsequent amendments
(included on the signature page of this Registration
Statement)
ITEM 9. UNDERTAKINGS.
(a) 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.
(b) 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 Act 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 this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) 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.
-4-
<PAGE> 5
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 Milwaukee, State of Wisconsin, on
June 6, 1997.
BADGER METER, INC.
BY: /s/ Deirdre C. Elliott
--------------------------------
Deirdre C. Elliott
Vice President-Corporate
Counsel and Secretary
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated. Each person whose signature appears
below constitutes and appoints James L. Forbes and Deirdre C. Elliott, and
each of them individually, his true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, or either of them, or their or his or her substitute or substitutes
may lawfully do or cause to be done by virtue hereof.
-5-
<PAGE> 6
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ James O. Wright Chairman of the
- ------------------- Board of Directors April 25, 1997
James O. Wright
/s/ James L. Forbes President, Chief
- ------------------- Executive Officer
James L. Forbes and Director April 25, 1997
/s/ Robert M. Hoffer Director April 25, 1997
- --------------------
Robert M. Hoffer
/s/ Charles F. James, Jr. Director April 25, 1997
- -------------------------
Charles F. James, Jr.
/s/ Kenneth P. Manning Director April 25, 1997
- ----------------------
Kenneth P. Manning
/s/ Andrew J. Policano Director April 25, 1997
- ----------------------
Andrew J. Policano
/s/ Donald J. Schuenke Director April 25, 1997
- ----------------------
Donald J. Schuenke
/s/ John J. Stollenwerk Director April 25, 1997
- -----------------------
John J. Stollenwerk
/s/ Pamela B. Strobel Director April 25, 1997
- ---------------------
Pamela B. Strobel
/s/ James O. Wright, Jr. Director April 25, 1997
- ------------------------
James O. Wright, Jr.
/s/ Deirdre C. Elliott Vice President-
- ---------------------- Corporate Counsel
Deirdre C. Elliott and Secretary April 25, 1997
/s/ Richard A. Meeusen Vice President-
- ---------------------- Finance and Chief
Richard A. Meeusen Financial Officer April 25, 1997
</TABLE>
-6-
<PAGE> 7
EXHIBIT INDEX
EXHIBIT NO. EXHIBIT
(4.1) Badger Meter, Inc. 1997 Stock Option Plan
(4.2) Form of Stock Option Agreement used in connection with the
Badger Meter, Inc. 1997 Stock Option Plan
(4.3) Restated Articles of Incorporation of Badger Meter, Inc.
[Incorporated by reference from Exhibit 4.3 to the
Company's Registration Statement on Form S-8 (Registration
No. 33-65618)]
(5.0) Opinion of Foley & Lardner
(23.1) Consent of Ernst & Young LLP
(23.2) Consent of Foley & Lardner (contained in Exhibit (5.0)
hereto)
(24.1) Power of Attorney relating to subsequent amendments
(included on the signature page of this Registration
Statement)
-7-
<PAGE> 1
EXHIBIT 4.1
BADGER METER, INC.
1997 STOCK OPTION PLAN
1. PURPOSE
The purpose of the Badger Meter, Inc. 1997 Stock Option Plan (the
"Plan") is to promote the best interests of Badger Meter, Inc. (the "Company")
and its shareholders by encouraging directors and key employees of the Company
and its subsidiaries to secure or increase on reasonable terms their stock
ownership in the Company. The Board of Directors of the Company believes the
Plan will promote continuity of management, increased incentive and personal
interest in the welfare of the Company by those who are primarily responsible
for shaping and carrying out the long-range plans of the Company and its
subsidiaries and securing their continued growth and financial success. It is
intended that certain of the options issued under the Plan may constitute
incentive stock options within the meaning of Section 422 of the Internal
Revenue Code ("Incentive Stock Options") and the remainder of the options
issued under the Plan will constitute non-qualified stock options
("Non-qualified Stock Options").
2. EFFECTIVE DATE
The Plan shall become effective on the date of adoption by the Board of
Directors of the Company (the "Board"), subject to the approval and
ratification of the Plan by the shareholders of the Company within twelve (12)
months of the date of adoption by the Board, and all options granted prior to
such shareholder approval shall be subject to such approval.
3. ADMINISTRATION
(a) The Plan shall be administered by the Management Review
Committee of the Board (the "Committee") as such Committee may be constituted
from time to time. The Committee shall consist of not less than two members of
the Board selected by the Board, each of whom shall qualify as a non-employee
director within the meaning of Rule 16b-3 under the Securities Exchange Act of
1934 ("Exchange Act"), or any successor rule or regulation thereto. A majority
of the members of the Committee shall constitute a quorum. All determinations
of the Committee shall be made by a majority of its members. Any decision or
determination reduced to writing and signed by all of the members of the
Committee shall be fully effective as if it had been made by a majority vote at
a meeting duly called and held.
If at any time the Committee shall not be in existence or not consist
of directors who are qualified as "non-employee directors" as defined above,
the Board shall administer the Plan. To the extent permitted by applicable
law, the Board may, in its discretion, delegrate to another committee of the
Board or to one or more senior officers of the Company any or all of the
authority and responsibility of the Committee with respect to options to
participants other than participants who are subject to the provisions of
Section 16 of the Exchange Act. To the extent that the Board has delegated to
such other committee or one or more officers the authority and responsibility
of the Committee, all references to the Committee herein shall include such
other committee or one or more officers.
<PAGE> 2
(b) Subject to the express provisions of the Plan, the Committee
shall have complete authority to select the key employees to whom options shall
be granted, to determine the number of shares subject to each option, the time
at which the option is to be granted, the type of option, the option period,
the option price and the manner in which options become exercisable, and shall
establish such other terms and conditions of the options as the Committee may
deem necessary or desirable. In making such determinations, the Committee may
take into account the nature of the services rendered by the respective
employees, their present and potential contribution to the success of their
respective organizations and such other factors as the Committee in its
discretion shall deem relevant. Subject to the express provisions of the Plan,
the Committee shall also have complete authority to interpret the Plan, to
prescribe, amend and rescind the rules and regulations relating to it, to waive
any conditions or restriction with respect to any options, and to make all
other determinations necessary or advisable for the administration of the Plan.
The determinations of the Committee on the matters referred to in this
paragraph 3 shall be conclusive.
4. ELIGIBILITY
Any non-employee director ("Director") or key employee ("Employee") of
the Company or its present and future subsidiaries, as defined in Section
424(f) of the Internal Revenue Code ("Subsidiaries"), whose judgment,
initiative and efforts contribute materially to the successful performance of
the Company or its Subsidiaries, shall be eligible to receive options under the
Plan.
5. SHARES SUBJECT TO THE PLAN
The shares which may be issued pursuant to options under the Plan shall
be shares of the Company's Common Stock, $1.00 par value ("Stock"), and may be
either authorized and unissued or treasury shares. The total number of shares
for which options may be granted and which may be purchased pursuant to options
under the Plan shall not exceed an aggregate of 200,000 shares (adjusted to
reflect the 2-for-1 stock split payable April 18, 1997), subject to adjustment
as provided in the following sentence and in paragraph 12 hereof. If an option
granted under the Plan expires, is canceled or terminates unexercised as to any
shares of Stock subject thereto, or if shares of Stock are used to satisfy the
Company's withholding tax obligations, such shares shall again be available for
the granting of additional options under the Plan.
6. OPTION PRICE
The option price per share of Stock shall be fixed by the Committee,
but shall be not less than 100% in the case of Incentive Stock Options of the
fair market value of the Stock on the date the option is granted. Unless
otherwise determined by the Committee, the "fair market value" of Stock on the
date of grant shall be the closing price for a share of Stock on such date, or,
if such date is not a trading date, the next preceding trading date as quoted
on the American Stock Exchange Transaction Reporting System.
7. GRANT OF OPTIONS
(a) Subject to the terms and conditions of the Plan, the Committee
may, from time to time, grant to Employees options to purchase such number of
shares of Stock and on such terms and conditions as the Committee may
determine. More than one option may be granted to the same Employee. The day
on which the Committee approves the granting of an option shall be considered
as the date on which such option is granted.
-2-
<PAGE> 3
(b) Notwithstanding the foregoing, each Director of the Company
who is not an employee of the Company or any subsidiary or affiliate thereof,
and who first became or becomes a Director after April 24, 1997, shall, upon
approval of the Plan by the shareholders of the Company, or at the time of
their first election to the Board, subject to adjustments as provided in
paragraph 12, automatically receive an option to purchase 6,000 shares of Stock
on that date. Any date on which a Director receives an option shall be
referred to as a "Grant Date". Such options shall be Non-qualified Stock
Options with an expiration date ten (10) years after the Grant Date. The
option price per share shall be the closing price for a share of Stock on the
Grant Date, or if such day is not a trading day, the next preceding trading day
as quoted on the American Stock Exchange Transaction Reporting System.
(c) Notwithstanding the foregoing, each Director or future
Director of the Company who is not an employee of the Company or any subsidiary
or affiliate thereof shall, upon approval of the Plan by the shareholders of
the Company, or at the time of their first election to the Board, be entitled
to receive an option to purchase 2,000 shares of Stock on that date in order to
increase the Directors' stake in the future of the Company. Any date on which
a Director receives an option shall be referred to as a Grant Date. Such
options shall be Non- qualified Stock Options with an expiration date ten (10)
years after the Grant Date. The option price per share shall be the closing
price for a share of Stock on the Grant Date, or if such day is not a trading
day, the next preceding trading day as quoted on the American Stock Exchange
Transaction Reporting System.
8. OPTION PERIOD
Except as set forth in paragraph 7, the Committee shall determine the
expiration date of each option, but in the case of Incentive Stock Options such
expiration date shall be not later than ten (10) years after the date such
option is granted.
9. MAXIMUM PER PARTICIPANT
The aggregate fair market value (determined at the time the option is
granted pursuant to paragraph 7) of the Stock with respect to which any
Incentive Stock Options are exercisable for the first time by a Director or
Employee during any calendar year under the Plan or any other such plan of the
Company or any Subsidiary shall not exceed $100,000.
10. EXERCISE OF OPTIONS
An option may be exercised, subject to its terms and conditions and the
terms and conditions of the Plan, in full at any time or in part from time to
time by delivery to the Company at its principal office of a written notice of
exercise specifying the number of shares with respect to which the option is
being exercised. Any notice of exercise shall be accompanied by full payment
of the option price of the shares being purchased (a) in cash or its
equivalent; or (b) with the consent of the Committee, by delivering to the
Company shares of Stock (valued at their fair market value as of the date of
exercise, as determined by the Committee consistent with the method of
valuation set forth in paragraphs 6 and 7); (c) with the consent of the
Committee, by any combination of (a) and (b); or (d) by delivering (including
by fax) to the Company or its designated agent an executed irrevocable option
exercise form together with irrevocable instructions to a broker/dealer to sell
or margin a sufficient portion of the shares of Stock and delivering the sale
or margin loan proceeds directly to the Company to pay for the option price.
-3-
<PAGE> 4
11. TRANSFERABILITY
No option shall be assignable or transferable by a Director or an
Employee other than by will or the laws of descent and distribution, and may be
exercised during the life of the Director or Employee only by the Director or
Employee or his guardian or legal representative, except that an Employee may,
to the extent allowed by the Committee and in a manner specified by the
Committee, (a) designate in writing a beneficiary to exercise the option after
the Employee's death and (b) transfer any option.
12. CAPITAL ADJUSTMENTS AFFECTING COMMON STOCK
In the event of a capital adjustment resulting from a stock dividend,
stock split, reorganization, recapitalization, merger, consolidation,
combination or exchange of shares or the like, the number of shares of Stock
subject to the Plan and the aggregate number and class of shares under option in
outstanding option agreements shall be adjusted in a manner consistent with such
capital adjustment; provided, however, that no such adjustment shall require the
Company to sell any fractional shares. The determination of the Committee as to
any adjustment shall be final. Notwithstanding the foregoing, options subject
to grant or previously granted to Directors under the Plan at the time of any
capital adjustments shall be subject only to such adjustments as shall be
necessary to maintain the relative proportionate interest of each Director and
preserve, without exceeding, the value of such options.
13. CORPORATE MERGERS AND OTHER CONSOLIDATIONS
The Committee may also grant options having terms and provisions which
vary from those specified in the Plan provided that any options granted pursuant
to this paragraph are granted in substitution for, or in connection with the
assumption of, existing options granted by another company and assumed or
otherwise agreed to be provided for by the Company pursuant to or by reason of a
transaction involving a corporate merger, consolidation, acquisition or other
reorganization to which the Company is a party.
14. OPTION AGREEMENTS
All options granted under the Plan shall be evidenced by written
agreement (which need not be identical) in such form as the Committee shall
determine. Each option agreement shall specify whether the option granted
thereunder is intended to constitute an Incentive Stock Option or a
Non-qualified Stock Option.
15. TRANSFER RESTRICTIONS
Shares of Stock purchased under the Plan and held by any person who is
an officer or Director of the Company, or who directly or indirectly controls
the Company, may not be sold or otherwise disposed of except pursuant to an
effective registration statement under the Securities Act of 1933 or except in a
transaction in compliance with Rule 144 under such Act or other transaction
which, in the opinion of counsel for the Company, is exempt from registration
under such Act. The Committee may waive the foregoing restrictions in whole or
in part in any particular case or cases, or may terminate such restrictions,
whenever the Committee determines that such restrictions afford no substantial
benefit to the Company.
-4-
<PAGE> 5
16. AMENDMENT OF PLAN
Shareholder approval of any amendment of the Plan shall be obtained if
otherwise required by: (i) the rules and/or regulations promulgated under
Section 16 of the Exchange Act (in order for the Plan to remain qualified under
Rule 16b-3); (ii) the Internal Revenue Code of 1986, as amended, or any rules
promulgated thereunder (in order to allow for Incentive Stock Options to be
granted under the Plan); or (iii) the listing requirements of the American Stock
Exchange or any principal securities exchange or market on which the Stock is
then traded (in order to maintain the quotation or listing of the Stock
thereon). The provisions of paragraphs 7(b) and 7(c) cannot be amended more
than once every six (6) months other than to comport with changes in the
Internal Revenue Code of 1986, as amended, the Employee Retirement Income
Security Act of 1974, as amended, or the rules and regulations thereunder.
17. TERMINATION OF PLAN
The Board shall have the right to suspend or terminate the Plan at any
time; provided, however, that no Incentive Stock Options may be granted after
the tenth (10th) anniversary of the effective date of the Plan as described in
paragraph 2 hereof. Termination of the Plan shall not affect the rights of
Employees or Directors under options previously granted to them, and all
unexpired options shall continue in force and operation after termination of the
Plan except as they may lapse or be terminated by their own terms and
conditions.
18. TAX WITHHOLDING
(a) The Company may deduct and withhold from any cash otherwise
payable to an Employee such amount as may be required for the purpose of
satisfying the Company's obligation to withhold federal, state or local taxes as
the result of the exercise of an option. In the event the amount so withheld is
insufficient for such purpose, the Company may require that the Employee pay to
the Company upon its demand or otherwise make arrangements satisfactory to the
Company for payment of such amount as may be requested by the Company in order
to satisfy its obligation to withhold any such taxes.
(b) An Employee may be permitted to satisfy the Company's
withholding tax requirements by electing to have the Company withhold shares of
Stock otherwise issuable to the Employee or to deliver to the Company shares of
Stock having a fair market value on the date income is recognized pursuant to
the exercise of an option equal to the amount required to be withheld. The
election shall be made in writing and shall be made according to such rules and
procedures as the Committee may determine.
19. RIGHTS AS A SHAREHOLDER
A Director or an Employee shall have no rights as a shareholder with
respect to any shares subject to any option until the date the options shall
have been exercised, the shares shall have been fully paid and a stock
certificate shall have been issued.
20. MISCELLANEOUS
The grant of any option under the Plan may also be subject to other
provisions as the Committee determines appropriate, including, without
limitation, provisions for (a) one or more means to enable Employees to defer
recognition of taxable income relating to options; (b) the purchase of Stock
under options in installments; and (c) compliance with federal or state
securities laws and stock exchange requirements.
-5-
<PAGE> 1
EXHIBIT 4.2
BADGER METER, INC.
NONQUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT, dated as of the ____ day of _________, 19__,
by and between BADGER METER, INC., a Wisconsin corporation (the "Company"), and
the undersigned employee (the "Optionee");
W I T N E S S E T H :
WHEREAS, the Company has adopted the Badger Meter, Inc. Stock
Option Plan (the "Plan"), to permit options to purchase shares of the Company's
Common Stock, $1.00 par value per share ("Stock"), to be granted to certain key
employees of the Company or any subsidiary of the Company ("Subsidiary"); and
NOW, THEREFORE, in consideration of the premises and of the
covenants and agreements herein set forth, the parties hereby mutually covenant
and agree as follows:
1. Grant of Option. Subject to the terms and conditions
of the Plan and this Agreement, the Company grants to the Optionee the option
to purchase from the Company all or any part of an aggregate number of _____
shares of Stock (hereinafter such shares of Stock are referred to as the
"Optioned Shares", and this option to purchase the Optioned Shares is referred
to as the "Option"). The Option is intended by the Company to constitute a
nonqualified stock option.
2. Option Price. The price to be paid for the Optioned
Shares shall be __________ per share (the "Option Price"), which has been
determined by the Plan Administrator designated pursuant to Section 3 of the
Plan to be not less than 100% of the fair market value of such stock on the
date of grant.
3. Exercise of Option. The Option may be exercised by
the Optionee, in whole or in part, from time to time, during the period
beginning one year after the date of this Agreement and ending ____________,
____, but only in accordance with the following schedule:
To the extent otherwise exercisable, the Option may be exercised following the
termination of the employment relationship between the Optionee and Company
only as provided in subsections (b) and (c) of Section 5 herein.
4. Manner of Exercise and Payment. The Option may be
exercised only by written notice to the Company by the Optionee of the
Optionee's intent to exercise the Option, delivered or mailed by postpaid
registered or certified mail addressed to the Secretary of the Company at its
office in Milwaukee, Wisconsin, specifying the number of Optioned Shares in
respect of which the Option is being exercised. Such notice shall be
accompanied by payment of the entire Option Price of the Optioned Shares being
purchased in cash or its equivalent.
-6-
<PAGE> 2
5. Termination of Employment.
(a) If the Optionee's employment with the Company
or a Subsidiary is terminated by the Company "for cause", or by the Optionee
for any reason other than death, disability or retirement, the Option shall
terminate immediately upon such termination of employment.
(b) If the Optionee's employment with the Company
or a Subsidiary is terminated by the Company without cause or by reason of
retirement, the Option may be exercised to the extent otherwise exercisable at
the date of such termination of employment, in whole or in part, within three
(3) months after the date of such termination of employment, but not
thereafter.
(c) If the Optionee's employment with the Company
or a Subsidiary is terminated by reason of disability within the meaning of
Section 22(e)(3) of the Internal Revenue Code of 1986, as amended ("Code") or
death, the Option may be exercised, to the extent otherwise exercisable at the
date of such termination of employment, in whole or in part, within twelve (12)
months after the date of such termination of employment, but not thereafter.
For purposes of this Section 5, termination by the Employer "for cause" shall
mean any termination of the Optionee by reason of any action or omission on the
part of the Optionee which is contrary to the interests of the Company or not
in the interests of the Company.
6. Withholding Taxes.
(a) It shall be a condition to the obligation of
the Company to issue or transfer shares of Stock upon exercise of the Option
that the Optionee pay to the Company upon its demand or otherwise make
arrangements satisfactory to the Company for payment of such amount as may be
requested by the Company for the purpose of satisfying its liability to
withhold federal, state or local income or other taxes incurred by reason of
the exercise of the Option. If any amount requested is not paid, the Company
may refuse to issue or transfer shares of Stock upon exercise of the Option.
(b) (i) The Optionee shall be permitted to
satisfy the Company's withholding tax requirements by electing (the "Election")
to have the Company withhold shares of Stock otherwise issuable to the Optionee
or to deliver to the Company shares of Stock having a fair market value on the
date income is recognized pursuant to the exercise of the Option (the "Tax
Date") equal to the amount required to be withheld. If the number of shares of
Stock determined pursuant to the preceding sentence shall include a fractional
share, the number of shares withheld or delivered shall be reduced to the next
lower whole number and the Optionee shall deliver to the Company cash in lieu
of such fractional share, or otherwise make arrangements satisfactory to the
Company for payment of such amount.
(ii) If the Optionee is an officer,
director or more than 10% shareholder of the Company (an "Insider"), the full
number of shares of Stock purchased may be issued to the Optionee upon exercise
and the Optionee shall be unconditionally obligated to deliver to the Company,
as soon as practicable after the Tax Date, the number of shares of Stock having
a fair market value on the Tax Date equal to the amount required to be
withheld. If the number of shares so determined shall include a fractional
share, the Optionee shall deliver cash in lieu of such fractional share.
-7-
<PAGE> 3
(iii) The Election must be received by the
Secretary of the Company at its principal office in Milwaukee, Wisconsin prior
to the Optionee's Tax Date; and if the Optionee is an Insider, the Election (1)
shall not be effective until at least six months after the date of this
Agreement; provided, however, that this restriction shall not apply in the
event death or disability of the Optionee occurs prior to the expiration of
this six month period; and (2) must be received by the Secretary of the Company
either six-months or more prior to the Tax Date or during a ten-day period
beginning on the third business day following the release of the Company's
quarterly or annual summary statement of sales and earnings which occurs prior
to the Tax Date.
(iv) The Election shall be irrevocable,
and shall be subject to disapproval, in whole or in part, by the Plan
Administrator. The Election shall be made in writing and shall be made
according to such rules and regulations and in such form as the Plan
Administrator shall determine.
7. Status of Optionee. The Optionee shall not be deemed
for any purposes to be a shareholder of the Company with respect to any shares
which may be acquired hereunder except to the extent that the Option shall have
been exercised and a stock certificate has been issued.
8. Nontransferability of Option. The Option shall not be
transferable by the Optionee otherwise than by will or the laws of descent and
distribution.
9. Powers of Company Not Affected. The existence of the
Option shall not affect in any way the right or power of the Company or its
shareholders to make or authorize any or all adjustments, recapitalizations,
reorganizations or other changes in the Company's capital structure or its
business, or any merger or consolidation of the Company, or any issuance of
bonds, debentures, preferred or prior preference stock ahead of or affecting
the Stock or the rights thereof, or dissolution or liquidation of the Company,
or any sale or transfer of all or any part of its assets or business, or any
other corporate act or proceeding, whether of a similar character or otherwise.
10. Adjustment of Number of Shares and Price. In the
event of a capital adjustment resulting from a stock dividend (other than a
stock dividend in lieu of an ordinary cash dividend), stock split,
reorganization, recapitalization, merger, consolidation, combination or
exchange of shares or the like, the Optioned Shares shall be adjusted in a
manner consistent with such capital adjustment; provided, however, that no such
adjustment shall require the Company to sell any fractional shares and the
adjustment shall be limited accordingly. The determination of the Plan
Administrator as to any adjustment shall be final.
11. Restrictions on Optioned Shares. Shares of stock
purchased under the Plan and held by any person who is an officer or director
of the Company, or who directly or indirectly controls the Company, may not be
sold or otherwise disposed of except pursuant to an effective Registration
Statement under the Securities Act of 1933 or in a transaction which, in the
opinion of counsel for the Company, is exempt from registration under such Act.
The Plan Administrator may waive the foregoing restrictions in whole or in part
in any particular case or cases, or may terminate such restrictions, whenever
the Plan Administrator determines that such restrictions afford no substantial
benefit to the Company.
12. Interpretation by Plan Administrator. As a condition
of the granting of the Option, the Optionee agrees for himself and his legal
representatives that any dispute or disagreement which may arise under, as a
result of or pursuant to this Agreement, shall be determined by the Plan
Administrator in its sole discretion, and any interpretation by the Plan
Administrator of the terms of this Agreement shall be final, binding and
conclusive.
-8-
<PAGE> 4
13. Employment. It is understood that nothing herein
contained shall be deemed to confer upon the Optionee any right to continue in
the employ of the Company, or to interfere in any way with the right of the
Company to terminate the employment of the Optionee at any time.
14. Benefits of Agreement. The benefits and obligations
under this Agreement shall inure to and be binding upon all successors of both
parties to this Agreement.
IN WITNESS WHEREOF, the Company has caused this instrument to
be executed by its duly authorized officers and its corporate seal hereunto
affixed, and the Optionee has hereunto affixed his hand and seal, as of the day
and year first above written.
BADGER METER, INC.
By:
-----------------------------------
President
Attest:
-------------------------------
Secretary
AGREED AND ACCEPTED
--------------------------------------
Optionee
-9-
<PAGE> 1
EXHIBIT 5.0
[FOLEY & LARDNER LETTERHEAD]
May 17, 1997
Badger Meter, Inc.
4545 West Brown Deer Road
Milwaukee, Wisconsin 53223
Ladies and Gentlemen:
We have acted as counsel for Badger Meter, Inc., a Wisconsin
corporation (the "Company"), in connection with the preparation of a Form S-8
Registration Statement (the "Registration Statement") to be filed by the
Company with the Securities and Exchange Commission under the Securities Act of
1933, as amended (the "Securities Act"), relating to 200,000 shares of the
Company's Common Stock, $1 par value (the "Common Stock"), which may be issued
or acquired pursuant to the Badger Meter, Inc. 1997 Stock Option Plan (the
"1997 Plan").
We have examined: (a) the 1997 Plan; (b) the Registration Statement;
(c) the Company's Restated Articles of Incorporation and Restated By-laws, as
amended to date; (d) copies of resolutions of the Company's Board of Directors
relating to the 1997 Plan and the issuance of securities thereunder; and (e)
such other proceedings, documents and records as we deemed necessary to enable
us to render this opinion. In connection with approval of the 1997 Plan, this
opinion assumes the consideration to be received by the Company upon the
issuance of shares of Common Stock pursuant to the 1997 Plan has been deemed
adequate by the Company's Board of Directors in accordance with the provisions
of the Wisconsin Business Corporation Law.
Based on the foregoing, we are of the opinion that:
1. The Company is a corporation validly existing under the laws of
the State of Wisconsin.
<PAGE> 2
Badger Meter, Inc.
May 17, 1997
Page 2
2. The shares of Common Stock, when issued by the Company pursuant
to the terms and conditions of the 1997 Plan and as contemplated in the
Registration Statement, will be validly issued, fully paid and nonassessable,
except as otherwise provided by Section 180.0622(2)(b) of the Wisconsin Business
Corporation Law.
Edwin P. Wiley and John F. Callan, partners in the firm of Foley &
Lardner, are trustees of a number of trusts for the benefit of various members
of the Wright family. As trustees they may be deemed to have beneficial
ownership over the shares of the Common Stock and the Company's Class B Common
Stock held in those trusts. The trustees have no voting power or investment
power over the shares held by the trusts because the shares have been deposited
in the Badger Meter Voting Trust.
We consent to the use of this opinion as an exhibit to the Registration
Statement and to the references to our firm therein. In giving our consent, we
do not admit that we are "experts" within the meaning of Section 11 of the
Securities Act or within the category of persons whose consent is required by
Section 7 of the Securities Act.
Very truly yours,
Foley & Lardner
FOLEY & LARDNER
<PAGE> 1
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Badger Meter, Inc. 1997 Stock Option Plan of our
reports dated January 29, 1997 (except for the first paragraph of Note 2, as to
which the date is February 14, 1997), with respect to the consolidated
financial statements of Badger Meter, Inc., incorporated by reference in its
Annual Report (Form 10-K) for the year ended December 31, 1996 and the related
financial statement schedule included therein, filed with the Securities and
Exchange Commission.
Ernst & Young LLP
ERNST & YOUNG LLP
Milwaukee, Wisconsin
May 23, 1997
