As filed with the Securities and Exchange Commission on June 6, 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
__________________
ACTION PERFORMANCE COMPANIES, INC.
(Exact name of Registrant as specified in its charter)
__________________
Arizona 86-0704792
---------------------------- ----------------------
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
2401 West First Street
Tempe, Arizona 85281
(Address of Principal executive offices)(zip code)
__________________
ACTION PERFORMANCE COMPANIES, INC.
Second Amended and Restated 1993 Stock Option Plan
(Full Title of the Plan)
__________________
Fred W. Wagenhals
Chairman of the Board, President and
Chief Executive Officer
ACTION PERFORMANCE COMPANIES, INC.
2401 West First Street
Tempe, Arizona 85281
(602) 894-0100
(Telephone number, including area code, of agent for service)
__________________
This Registration Statement shall become effective immediately upon filing with
the Securities and Exchange Commission, and sales of the registered securities
will begin as soon as reasonably practicable after such effective date.
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================================================
Proposed
Title of Securities Proposed Maximum Maximum
To Be Amount To Be Offering Price Per Aggregate Amount Of
Registered Registered(1) Share Offering Price Registration Fee
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 112,300 shares $10.625 $ 1,193,188 $ 361.57
Common Stock 61,250 shares 14.875 911,094 276.09
Common Stock 25,000 shares 17.50 437,500 132.58
Common Stock 134,000 shares 19.125 2,562,750 776.59
Common Stock 417,450 shares 23.50 (2) 9,810,075 2,972.75
------- ------------ ----------
Total 750,000 shares $14,914,607 $4,519.58
================================================================================================================================
</TABLE>
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the Second Amended and Restated
1993 Stock Option Plan by reason of any stock dividend, stock split,
recapitalization or any other similar transaction without receipt of
consideration which results in an increase in the number of outstanding
shares of Common Stock of Action Performance Companies, Inc.
(2) Calculated solely for purposes of this offering under Rules 457(c) and
457(h) of the Securities Act of 1933, as amended, on the basis of the
average of the high and low sales prices for shares of Common Stock of
Action Performance Companies, Inc. on June 3, 1997.
<PAGE>
PART II
Information Required in the Registration Statement
Action Performance Companies, Inc. (the "Registrant") hereby incorporates
by reference into this Registration Statement, pursuant to General Instruction E
to Form S-8, the contents of the Registrant's Registration Statement on Form S-8
(No. 33-66980) and amendments thereto as filed with the Securities and Exchange
Commission (the "Commission").
Item 8. Exhibits
--------
Exhibit Number Exhibit
- -------------- -------
<TABLE>
<S> <C>
5 Opinion and consent of O'Connor, Cavanagh, Anderson, Killingsworth & Beshears, a
professional association.
10.4.2 Action Performance Companies, Inc. Second Amended and Restated 1993 Stock Option
Plan, as amended through January 17, 1997, as approved by the Company's shareholders
on April 3, 1997(1)
23.1 Consent of independent public accountants - Arthur Andersen LLP
23.2 Consent of O'Connor, Cavanagh, Anderson, Killingsworth & Beshears, a professional
association, is contained in Exhibit 5.
24 Power of Attorney. Reference is made to page II.2 of this Registration Statement.
</TABLE>
- --------------
(1) Incorporated by reference to the Registrant's Quarterly Report on Form
10-Q for the quarter ended March 31, 1997, as filed with the Commission on
May 15, 1997.
II.1
<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-8 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 30th day of May, 1997.
ACTION PERFORMANCE COMPANIES, INC.
By:/s/ Fred W. Wagenhals
-----------------------------------------
Fred W. Wagenhals, Chairman of the Board,
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints jointly and severally, Fred W. Wagenhals
and Christopher S. Besing, and each one of them, as his true and lawful
attorney-in-fact and agent, 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 any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
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>
/s/ Fred W. Wagenhals Chairman of the Board, President and Chief May 30, 1997
- ----------------------------- Executive Officer (Principal Executive
Fred W. Wagenhals Officer)
/s/ Christopher S. Besing Vice President, Chief Financial Officer, and May 30, 1997
- ----------------------------- Director (Principal Financial and Accounting
Christopher S. Besing Officer)
/s/ Tod J. Wagenhals Executive Vice President, Secretary, and May 30, 1997
- ----------------------------- Director
Tod J. Wagenhals
/s/ Joseph M. Mattes Vice President and Director May 30, 1997
- -----------------------------
Joseph M. Mattes
/s/ Melodee L. Volosin Director of Wholesale Division and Director May 30, 1997
- -----------------------------
Melodee L. Volosin
/s/ John S. Bickford Director May 30, 1997
- -----------------------------
John S. Bickford
/s/ Jack M. Lloyd Director May 30, 1997
- -----------------------------
Jack M. Lloyd
/s/ Robert H. Manschot Director May 30, 1997
- -----------------------------
Robert H. Manschot
</TABLE>
II.2
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 6, 1997
Action Performance Companies, Inc.
2401 West First Street
Tempe, Arizona 85281
Re: Registration Statement on Form S-8
Action Performance Companies, Inc.
Gentlemen:
As legal counsel to Action Performance Companies, Inc., an
Arizona corporation (the "Company") we have assisted in the preparation of the
Company's Registration Statement on Form S-8 (the "Registration Statement"), to
be filed with the Securities and Exchange Commission on or about June 6, 1997 in
connection with the registration under the Securities Act of 1933, as amended,
of 750,000 shares of Common Stock, par value $0.01 per share, of the Company
(the "Shares") issuable pursuant to the Company's Second Amended and Restated
1993 Stock Option Plan (the "Plan"). 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 Secretary of State of the State of Arizona on
February 28, 1996;
B. The First Amended and Restated Bylaws of the Company;
C. Resolutions of the Board of Directors of the Company dated
September 4, 1996 and January 16, 1997, adopting the amendments to the Plan
increasing the number of shares of Common Stock issuable pursuant to the Plan
from 2,000,000 to 2,750,000 shares;
<PAGE>
Action Performance Companies, Inc.
June 6, 1997
Page 2
D. Minutes of the April 3, 1997 Annual Meeting of Shareholders
of the Company, at which the shareholders approved the amendments to the Plan as
adopted by the Board of Directors; and
E. The Registration Statement.
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 the Shares, when issued and sold in accordance
with the terms of the Plan, will be validly issued, fully paid and
nonassessable.
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 & Beshears, P.A.
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 Form 10-KSB for the year ended
September 30, 1996, and to all references to our firm included in this
Registration Statement.
ARTHUR ANDERSEN LLP
Phoenix, Arizona
May 23, 1997
