AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 19, 1997
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ACTION PERFORMANCE COMPANIES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Arizona 86-0704792
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
2401 West First Street
Tempe, Arizona 85281
(602) 894-0100
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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FRED W. WAGENHALS
Chairman of the Board, President,
and Chief Executive Officer
2401 West First Street
Tempe, Arizona 85281
(602) 894-0100
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
Copies to: Copies to:
Robert S. Kant, Esq. Edward S. Rosenthal, Esq.
Jere M. Friedman, Esq. Fried, Frank, Harris, Shriver & Jacobson
O'Connor, Cavanagh, Anderson, 350 South Grand Avenue
Killingsworth & Beshears, P.A. 32nd Floor
One East Camelback Road Los Angeles, California 90071
Phoenix, Arizona 85012 (213) 473-2001
(602) 263-2606
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practical after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [X] No. 333-27485
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] __________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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Title of Shares Proposed Maximum Amount of
to be Registered Aggregate Offering Registration
Price(1) Fee(2)
- - --------------------------------------------------------------------------------
Common Stock, par value $0.01 per share..... $5,908,125 $1,790.34
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(1) Includes 30,000 shares subject to the Underwriters' overallotment option.
(2) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(o) under the Securities Act of 1933.
<PAGE>
Part I.
The contents of the Registrant's Registration Statement on Form S-3
(Registration No. 333-27485), including the Rule 424(b) Prospectus filed
thereunder, are hereby incorporated by reference.
Part II.
Item 16. Exhibits
Exhibits
Exhibit No. Description of Exhibit
- - ----------- ----------------------
5 Opinion of O'Connor, Cavanagh, Anderson, Killingsworth & Beshears,
P.A.
23.1 Consent of O'Connor, Cavanagh, Anderson, Killingsworth & Beshears,
P.A. (included in its Opinion filed as Exhibit 5)
23.2 Consent of Arthur Andersen LLP
<PAGE>
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-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Tempe, Arizona, on the 18th day of June, 1997.
ACTION PERFORMANCE COMPANIES, INC.
By: /s/ FRED W. WAGENHALS*
------------------------------------
Fred W. Wagenhals
Chairman of the Board, President, and
Chief Executive Officer
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
dates indicated:
<TABLE>
<CAPTION>
SIGNATURE POSITION DATE
--------- -------- ----
<S> <C> <C> <C>
/S/ FRED W. WAGENHALS* Chairman of the Board, President, and June 18, 1997
- - -------------------------- Chief Executive Officer (Principal
Fred W. Wagenhals Executive Officer)
/S/ TOD J. WAGENHALS* Executive Vice President, Secretary, and June 18, 1997
- - -------------------------- Director
Tod J. Wagenhals
/S/ CHRISTOPHER S. BESING Vice President, Chief Financial Officer, June 18, 1997
- - -------------------------- Treasurer, and Director (Principal
Christopher S. Besing Financial and Accounting Officer)
/S/ JOSEPH M. MATTES* Vice President and Director June 18, 1997
- - --------------------------
Joseph M. Mattes
/S/ MELODEE L. VOLOSIN* Director of Wholesale Division June 18, 1997
- - -------------------------- and Director
Melodee L. Volosin
/S/ JOHN S. BICKFORD* Director June 18, 1997
- - --------------------------
John S. Bickford
/S/ JACK M. LLOYD* Director June 18, 1997
- - --------------------------
Jack M. Lloyd
/S/ ROBERT H. MANSCHOT* Director June 18, 1997
- - --------------------------
Robert H. Manschot
*By: /s/ CHRISTOPHER S. BESING
-----------------------------
Attorney-in-Fact
</TABLE>
EXHIBIT 5.0
OPINION OF COUNSEL
The Law Offices of
O'CONNOR, CAVANAGH, ANDERSON, KILLINGSWORTH & BESHEARS
One East Camelback Road, Suite 1100
Phoenix, Arizona 85012
Telephone: (602) 263-2400
Fax: (602) 263-2900
June 18, 1997
Action Performance Companies, Inc.
2401 West First Street
Tempe, Arizona 85281
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
As legal counsel to Action Performance Companies, Inc., an
Arizona corporation (the "Company"), and the Selling Shareholders, as defined in
the Registration Statement, as defined below, we have assisted in the
preparation of the Company's Registration Statement on Form S-3 to be filed on
June 19, 1997, with the Securities and Exchange Commission (the "Registration
Statement") pursuant to Rule 462(b) under the Securities Act of 1933, as amended
(the "Securities Act"), in connection with the registration under the Securities
Act of the shares of common stock, par value $.01 per share, of the Company
covered by the Registration Statement (the "Shares"). The facts, as we
understand them, are set forth in the Registration Statement.
With respect to the opinion set forth below, we have examined
originals, certified copies, or copies otherwise identified to our satisfaction
as being true copies, only of the following:
A. The First Amended and Restated Articles of Incorporation
of the Company, as filed with the Arizona Corporation Commission on February 28,
1996;
B. The Bylaws of the Company, as amended through the date
hereof;
C. The Registration Statement; and
POO1793F.WP5
<PAGE>
Action Performance Companies, Inc.
June 18, 1997
Page 2
D. The Resolutions of the Board of Directors of the Company
dated May 16, 1997 and June 18, 1997 relating to the approval of the filing of
the Registration Statement and the transactions in connection therewith.
Subject to the assumptions that (i) the documents and
signatures examined by us are genuine and authentic and (ii) the persons
executing the documents examined by us have the legal capacity to execute such
documents, and subject to the further limitations and qualifications set forth
below, it is our opinion that, when (a) the Registration Statement as then
amended shall have been declared effective by the Commission, (b) the
Underwriting Agreement shall have been duly executed and delivered, and (c) the
Shares have been duly issued, executed, authenticated, delivered, paid for and
sold by the Company and the Selling Shareholders as described in the
Registration Statement and in accordance with the provisions of the Underwriting
Agreement, the Shares will be validly issued, fully paid and nonassessable.
We have assumed, with respect to the Shares that are to be
sold by the Selling Shareholders, the payment by the Selling Shareholders (or
the prior holders thereof) of the full and sufficient consideration due from
them to the Company for such Shares.
Please be advised that we are members of the State Bar of
Arizona, and our opinion is limited to the legality of matters under the laws of
the State of Arizona. Further, our opinion is based solely upon existing laws,
rules and regulations, and we undertake no obligation to advise you of any
changes that may be brought to our attention after the date hereof.
We hereby expressly consent to any reference to our firm in
the Registration Statement, inclusion of this Opinion as an exhibit to the
Registration Statement, and to the filing of this Opinion with any other
appropriate governmental agency.
Very truly yours,
/s/ O'Connor, Cavanagh, Anderson,
Killingsworth, and Beshears,
a Professional Association
POO1793F.WP5
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated November 25, 1996,
included in Action Performance Companies, Inc.'s Registration Statement on Form
S-3 (333-27485) and the Rule 424(b) Prospectus filed thereunder, and to all
references to our firm included in this Registration Statement.
ARTHUR ANDERSEN LLP
Phoenix, Arizona
June 17, 1997
