Registration No. 333-________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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BADGER METER, INC.
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(Exact name of registrant as specified in its charter)
Wisconsin 39-0143280
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(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
4545 West Brown Deer Road
Milwaukee, Wisconsin 53223
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(Address of principal executive offices) (Zip Code)
Badger Meter, Inc. 2003 Stock Option Plan
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(Full title of the plan)
_____________________
Richard A. Meeusen
President and Chief Executive Officer
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
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Title of Amount Proposed Maximum Proposed Maximum Amount of
Securities to be to be Offering Price Aggregate Offering Registration
Registered Registered Per Share(1) Price(1) Fee
---------------- ---------- ---------------- ------------------ ------------
Common Stock, 200,000
$1.00 par value shares $32.15 $6,430,000 $520.19
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Common Share 200,000
Purchase Rights rights (2) (2) (2)
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(1) Estimated pursuant to Rule 457(c) and (h) under the Securities Act of 1933
solely for the purpose of calculating the registration fee, based on the
average of the high and low prices of the Common Stock on the American Stock
Exchange on August 5, 2003.
(2) The value attributable to the Common Share Purchase Rights is reflected in
the market price of the Common Stock to which the rights are attached.
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, 2002, which includes audited financial statements as of and for the
year ended December 31, 2002.
(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, 2002, including (a) the Company's Current Report on
Form 8-K dated July 16, 2003, filed July 16, 2003; (b) the Company's Quarterly
Report on Form 10-Q for the quarter ended March 31, 2003, filed April 30, 2003;
(c) the Company's Current Report on Form 8-K dated April 14, 2003, filed April
14, 2003; and (d) the Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 2003, filed August 1, 2003.
(c) The description of the Company's Common Stock, par value $1.00 per
share, included in Registration Statement No. 0-2596 on Form 8-A, dated July 26,
1971, as amended by the Company's Form 8, dated January 8, 1987, and any
amendments or reports filed for the purpose of updating such description.
(d) The description of the Company's Common Share Purchase Rights
included in the Company's Registration Statement on Form 8-A, dated May 26,
1998, 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 and 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 Company's counsel, Foley & Lardner, 777 East Wisconsin Avenue,
Milwaukee, WI 53202, has rendered an opinion as to the legality of the shares of
the Company's Common Stock to be issued pursuant to the Badger Meter, Inc. 2003
Stock Option Plan. Luke E. Sims, a partner in the law firm of Foley & Lardner,
beneficially owns 24,143 shares of the Company's Common Stock as of June 30,
2003.
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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 or her
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. 2003 Stock Option Plan.
(4.2) Form of Stock Option Agreement used in connection with the
Badger Meter, Inc. 2003 Stock Option Plan.
(4.3) Rights Agreement, dated as of May 26, 1998, between the
Company and U.S. Bank, National Association (f/k/a/ Firstar
Bank, N.A., successor to Firstar Trust Company).
[Incorporated by reference to Exhibit 4.1 to the Company's
Registration Statement on Form 8-A (File No. 1-6706), dated
as of May 26, 1998.]
(4.4) Agreement of Substitution and Amendment of Common Shares
Rights Agreement, dated August 16, 2002, between the Company
and American Stock Transfer & Trust Company. [Incorporated by
reference to Exhibit 4.2 to the Company's Registration
Statement on Form S-3 (File No. 333-102057), filed on
December 20, 2002.]
(5) Opinion of Foley & Lardner.
(23.1) Consent of Ernst & Young LLP.
(23.2) Consent of Foley & Lardner (contained in Exhibit (5) hereto).
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(24) Power of Attorney relating to subsequent amendments (included
on the signature pages 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:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the registration statement; and
(iii) 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;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference 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.
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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 this 11th day of
August, 2003.
BADGER METER, INC.
BY: /s/ Richard A. Meeusen
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Name: Richard A. Meeusen
Title: President and Chief Executive
Officer
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 Richard A. Meeusen and Richard E. Johnson, 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.
S-1
Signature Title Date
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/s/ James L. Forbes August 11, 2003
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James L. Forbes Chairman and Director
/s/ Richard A. Meeusen President and August 11, 2003
------------------------ Chief Executive Officer ----------------
Richard A. Meeusen and Director (Principal
Executive Officer)
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Thomas J. Fischer Director
/s/ Kenneth P. Manning August 11, 2003
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Kenneth P. Manning Director
/s/ Ulice Payne, Jr. August 11, 2003
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Ulice Payne, Jr. Director
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Andrew J. Policano Director
/s/ Steven J. Smith August 11, 2003
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Steven J. Smith Director
/s/ John J. Stollenwerk August 11, 2003
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John J. Stollenwerk Director
/s/ Richard E. Johnson Senior Vice President- August 11, 2003
------------------------ Finance, Chief Financial ----------------
Richard E. Johnson Officer And Treasurer
(Principal Financial
Officer)
/s/ Beverly L.P. Smiley Vice President- August 11, 2003
------------------------ Corporate Controller ----------------
Beverly L.P. Smiley (Principal Accounting
Officer)
S-2
EXHIBIT INDEX
Exhibit No. Exhibit
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(4.1) Badger Meter, Inc. 2003 Stock Option Plan.
(4.2) Form of Stock Option Agreement used in connection with the
Badger Meter, Inc. 2003 Stock Option Plan.
(4.3) Rights Agreement, dated as of May 26, 1998, between the
Company and U.S. Bank, National Association (f/k/a/ Firstar
Bank, N.A., successor to Firstar Trust Company).
[Incorporated by reference to Exhibit 4.1 to the Company's
Registration Statement on Form 8-A (File No. 1-6706), dated
as of May 26, 1998.]
(4.4) Agreement of Substitution and Amendment of Common Shares
Rights Agreement, dated August 16, 2002, between the Company
and American Stock Transfer & Trust Company. [Incorporated
by reference to Exhibit 4.2 to the Company's Registration
Statement on Form S-3 (File No. 333-102057), filed on
December 20, 2002.]
(5) Opinion of Foley & Lardner.
(23.1) Consent of Ernst & Young LLP.
(23.2) Consent of Foley & Lardner (contained in Exhibit (5)
hereto).
(24) Power of attorney relating to subsequent amendments
(included on the signature pages of this registration
statement).