As filed with the Securities and Exchange Commission on July 31, 1998
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)
4707 East Baseline Road
Phoenix, Arizona 85040
(Address of Principal Executive Offices)(Zip Code)
-----------------------
ACTION PERFORMANCE COMPANIES, INC.
1998 Non-Qualified
Stock Option Plan
(Full Title of the Plan)
-----------------------
Fred W. Wagenhals
Chairman of the Board, President,
and Chief Executive Officer
ACTION PERFORMANCE COMPANIES, INC.
4707 East Baseline Road, Phoenix, Arizona 85040
(602) 337-3700
(Name, Address, and 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 maximum Proposed maximum
Title of Securities to be Amount to be offering price per Aggregate offering Amount of
Registered registered(1) share price registration fee
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 97,500 Shares $ 25.91 $ 2,526,225 $ 745.24
Common Stock 402,500 Shares $ 30.88 (2) 12,429,200 3,666.61
-------------- ------------ -----------
Total 500,000 Shares $ 14,955,425 $ 4,411.85
=================================================================================================================
</TABLE>
(1) Represents 500,000 shares issuable under the 1998 Non-Qualified Stock
Option Plan. This Registration Statement shall also cover any additional
shares of Common Stock which become issuable under the 1998 Non-Qualified
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 for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, using the average of the high and low
sales prices for the Common Stock of Action Performance Companies, Inc. on
July 28, 1998, as reported on the Nasdaq National Market.
<PAGE>
PART II
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference
---------------------------------------
Action Performance Companies, Inc. (the "Registrant") hereby
incorporates by reference into this Registration Statement the following
documents previously filed with the Securities and Exchange Commission (the
"Commission"):
(a) The Registrant's latest annual report filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934,
as amended (the "1934 Act"), or the latest prospectus filed
pursuant to the Securities Act of 1933, as amended (the
"Securities Act"), that contains audited financial statements
for the Registrant's latest fiscal year for which such
statements have been filed;
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the 1934 Act since the end of the fiscal year covered by the
document referred to in (a) above; and
(c) The description of the Registrant's Common Stock contained in
the Registrant's Registration Statement on Form 8-A/A (File
No. 001-11866) filed with the Commission on June 14, 1995.
All reports and definitive proxy or information statements
filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the
date of this Registration Statement and prior to the filing of a post-effective
amendment 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 into 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 firm of O'Connor, Cavanagh, Anderson, Killingsworth &
Beshears, a professional association, Phoenix, Arizona, has acted as counsel for
the Registrant in the preparation of this Registration Statement. As of July 30,
1998, certain members of such firm beneficially owned a total of 14,000 shares
of the Registrant's Common Stock.
Item 6. Indemnification of Directors and Officers
-----------------------------------------
The Registrant's Amended and Restated Articles of
Incorporation (the "Restated Articles") require the Registrant to indemnify and
advance expenses to any person who incurs liability or expense by reason of such
person acting as a director of the Corporation, to the fullest extent allowed by
the Arizona Business Corporation Act (the "Business Corporation Act"). This
indemnification is mandatory with respect to directors in all circumstances in
which indemnification is permitted by the Business Corporation Act, subject to
the requirements of the Business Corporation Act. In addition, the Registrant
may, in its sole discretion, indemnify and advance expenses, to the fullest
extent allowed by the Business Corporation Act, to any person who incurs
liability or expense by reason of such person acting as an officer, employee or
agent of the Registrant, except where indemnification is mandatory pursuant to
the Business Corporation Act, in which case the Registrant is required to
indemnify to the fullest extent required by the Business Corporation Act. The
effect of these provisions is described below.
II.1
<PAGE>
Required Indemnification
The Restated Articles and the Business Corporation Act require the
Registrant to indemnify all "Outside Directors," as defined below, and officers
of the Registrant who are not directors against "liability," as defined below.
The Restated Articles and the Business Corporation Act also require the
Registrant to indemnify against reasonable "expenses," as defined below, any
director who is the prevailing party in the defense of any proceeding to which
the director is a party because such person is or was a director of the
Registrant. In addition, the Business Corporation Act requires the Registrant to
pay expenses to Outside Directors in advance of a final disposition of the
proceeding if (1) the director furnishes to the Registrant a written affirmation
(an "Affirmation") of his or her good faith belief that (i) his or her conduct
was in good faith, (ii) he or she reasonably believed that the conduct was in
the best interests of the Registrant or at least not opposed to the Registrant's
best interests, and (iii) in the case of any criminal proceeding, he or she had
no reasonable cause to believe the conduct was unlawful (the "Standard of
Conduct"), and (2) the director provides the Registrant with a written
undertaking (an "Undertaking") to repay the advance if it ultimately is
determined that the director did not meet the Standard of Conduct. However, the
Business Corporation Act prohibits the Registrant from advancing expenses to an
Outside Director if a court determines before payment that the director failed
to meet the Standard of Conduct and a court does not otherwise authorize
indemnification.
The Restated Articles and the Business Corporation Act also require the
Registrant to indemnify a director who is not an Outside Director against
liability, but only if the Registrant is authorized in the specific case after a
determination has been made by either (a) a majority of the members of the Board
of Directors who are not at the time parties to the proceeding, (b) special
legal counsel, or (c) the shareholders of the Registrant (excluding shares owned
by or voted under the control of directors who are at the time parties to the
proceeding) that the director has met the Standard of Conduct (a
"Determination"). In addition, the Business Corporation Act prohibits the
Registrant from indemnifying a director who is not an Outside Director in
connection with a proceeding by or in the right of the Registrant in which the
director is adjudged liable to the Registrant, or in connection with a
proceeding in which the director was adjudged liable on the basis that the
director improperly received a personal benefit. As permitted by the Business
Corporation Act, the Restated Articles also require the Registrant to pay for or
reimburse the reasonable expenses of a director who is not an Outside Director
in advance of the final disposition of a proceeding if the director furnishes
the Registrant with an Affirmation, an Undertaking, and a Determination is made
that the facts then known to the persons making the Determination would not
preclude indemnification under the Business Corporation Act.
Optional Indemnification
Except for situations where the Registrant is required to indemnify its
officers who are not also directors against liability, as described above, the
Restated Articles and the Business Corporation Act permit the Registrant, in its
sole discretion, to indemnify against liability and advance expenses to any
officer, employee, or agent who is not a director to the same extent as to a
director. However, the Business Corporation Act prohibits the Registrant from
indemnifying such persons against liability unless a Determination is made that
indemnification is permissible because the person has met the Standard of
Conduct. The Business Corporation Act permits the Registrant to pay for or
reimburse expenses to an officer, employee, or agent who is not a director in
advance of a final disposition of the proceeding, but only if the person
furnishes to the Registrant an Affirmation and an Undertaking, and a
Determination is made that the facts then known to the persons making the
Determination would not otherwise preclude indemnification.
Court Ordered Indemnification
The Restated Articles and the Business Corporation Act permit a
director or officer of the Registrant to apply to a court for indemnification,
in which case the court may, subject to certain conditions, order the Registrant
to indemnify such person for part or all of the person's liability and expenses.
II.2
<PAGE>
Definitions
The Business Corporation Act defines "Outside Director" to mean a
director who, when serving as a director, was not an officer, employee or holder
of more than 5% of the outstanding shares of any class of stock of the
Registrant. "Liability" under the Business Corporation Act means the obligation
to pay a judgment, settlement, penalty or fine, including an excise tax assessed
with respect to an employee benefit plan, or reasonable expenses incurred with
respect to a proceeding and includes obligations and expenses that have not yet
been paid by the indemnified person but that have been or may be incurred. The
Business Corporation Act defines "expenses" as attorney fees and all other costs
and expenses reasonably related to a proceeding.
Item 7. Exemption from Registration Claimed
-----------------------------------
Not applicable.
Item 8. Exhibits
--------
Exhibit
Number Exhibit
- ------ -------
5 Opinion and consent of O'Connor, Cavanagh, Anderson, Killingsworth &
Beshears, a professional association
10.52 1998 Non-Qualified Stock Option Plan(1)
23.1 Consent of O'Connor, Cavanagh, Anderson, Killingsworth & Beshears, P.A.
is contained in Exhibit 5
23.2 Consent of Independent Public Accountants - Arthur Andersen LLP
24 Power of Attorney (included on page II.5 of this Registration
Statement)
- ---------
(1) Incorporated by reference to the Registrants' Form 10-Q for the quarter
ended March 31, 1998, as filed with the Securities and Exchange
Commission on May 15, 1998.
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 that is incorporated by reference
into the registration statement 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.
C. Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers or
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
II.3
<PAGE>
indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final
adjudication of such issue.
II.4
<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 Phoenix, State of Arizona, on this 30th day of
July, 1998.
ACTION PERFORMANCE COMPANIES, INC.
By: /s/ Fred W. Wagenhals
------------------------------------------
Fred W. Wagenhals, Chairman of the Board,
President, and Chief Executive Officer
(Principal 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 of them, as his true and lawful
attorney-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 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 Executive July 30, 1998
- ------------------------------------- Officer (Principal Executive Officer)
Fred W. Wagenhals
/s/ Tod J. Wagenhals Executive Vice President, Secretary, and Director July 30, 1998
- -------------------------------------
Tod J. Wagenhals
/s/ Christopher S. Besing Vice President, Chief Financial Officer, Treasurer, and July 30, 1998
- ------------------------------------- Director (Principal Financial Officer)
Christopher S. Besing
/s/ David A. Husband Vice President - Finance and Accounting and Chief July 30, 1998
- ------------------------------------ Accounting Officer (Principal Accounting Officer)
David A. Husband
/s/ Melodee L. Volosin Vice President - Wholesale Division and Director July 30, 1998
- -------------------------------------
Melodee L. Volosin
/s/ John S. Bickford, Sr. Vice President - Strategic Alliances and Director July 30, 1998
- -------------------------------------
John S. Bickford, Sr.
/s/ Jack M. Lloyd Director July 30, 1998
- -------------------------------------
Jack M. Lloyd
/s/ Robert H. Manschot Director July 30, 1998
- -------------------------------------
Robert H. Manschot
/s/ Edward J. Bauman Director July 30, 1998
- -------------------------------------
Edward J. Bauman
/s/ Donald G. Hawk, Jr. Director July 30, 1998
- -------------------------------------
Donald G. Hawk, Jr.
</TABLE>
II-5
EXHIBIT 5
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
July 30, 1998
Action Performance Companies, Inc.
4707 East Baseline Road
Phoenix, Arizona 85040
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 July 31, 1998
in connection with the registration under the Securities Act of 1933, as
amended, of 500,000 shares of the Company's common stock, par value $0.01 per
share, (the "Common Stock") issuable pursuant to the Company's 1998
Non-Qualified Stock Option Plan (the "Plan"). The shares of Common Stock
issuable pursuant to the Plan are referred to as 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 Amended and Restated Articles of Incorporation of the
Company, as filed with the Secretary of State of the State of Arizona, as
amended through the date hereof;
B. The Bylaws of the Company, as amended through the date
hereof;
C. Resolutions of the Board of Directors of the Company dated
March 2, 1998, reserving 500,000 shares of Common Stock of the Company for
issuance pursuant to the Plan; and
D. 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.
<PAGE>
Action Performance Companies, Inc.
July 30, 1998
Page 2
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.
EXHIBIT 23.2
ARTHUR ANDERSEN LLP
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 18, 1997,
included in Action Performance Companies, Inc.'s Form 10-K/A for the year ended
September 30, 1997, and to all references to our firm included in this
registration statement.
Phoenix, Arizona
July 16, 1998 /s/ ARTHUR ANDERSEN LLP
