-----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, NLj8lyL1e1r32ZuM5fdHVIvo1F4dKzeyySjExgU+zSNir/3U6pEg+vFusYniX2Mx +91fCLHPxflXa5Uw8G5zlA== 0000950124-97-003288.txt : 19970610 0000950124-97-003288.hdr.sgml : 19970610 ACCESSION NUMBER: 0000950124-97-003288 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19970606 EFFECTIVENESS DATE: 19970606 SROS: AMEX FILER: COMPANY DATA: COMPANY CONFORMED NAME: BADGER METER INC CENTRAL INDEX KEY: 0000009092 STANDARD INDUSTRIAL CLASSIFICATION: TOTALIZING FLUID METERS & COUNTING DEVICES [3824] IRS NUMBER: 390143280 STATE OF INCORPORATION: WI FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-28617 FILM NUMBER: 97620003 BUSINESS ADDRESS: STREET 1: 4545 WEST BROWN DEER ROAD STREET 2: C/O CORPORATE SECRETARY CITY: MILWAUKEE STATE: WI ZIP: 53223-0099 BUSINESS PHONE: 4143550400 FORMER COMPANY: FORMER CONFORMED NAME: BADGER METER MANUFACTURING CO DATE OF NAME CHANGE: 19710729 S-8 1 FORM S-8 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
==================================================================================================================================== 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 - ------------------------------------------------------------------------------------------------------------------------------------ Common Stock, $1.00 par value 200,000 shares $ 25.5 $ 25.063 $ 1,518.94 ====================================================================================================================================
* 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. 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- 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- 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- 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- 6
Signature Title Date --------- ----- ---- /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
-6- 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- EX-4.1 2 EXHIBIT 4.1 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. 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- 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- 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- 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- EX-4.2 3 EXHIBIT 4.2 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- 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- 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- 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- EX-5.0 4 EXHIBIT 5.0 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. 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 EX-23.1 5 EXHIBIT 23.1 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 -----END PRIVACY-ENHANCED MESSAGE-----