-----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, MkSbDAAtJQCsZRDJTz8IM4UO/ND5QrlHcxIAN5N55Ws9G60LFvNYhcJLyCG7921u ihLe1KAevjtnqreneFSxrw== 0000950147-97-000408.txt : 19970624 0000950147-97-000408.hdr.sgml : 19970624 ACCESSION NUMBER: 0000950147-97-000408 CONFORMED SUBMISSION TYPE: S-3MEF PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19970619 EFFECTIVENESS DATE: 19970619 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: ACTION PERFORMANCE COMPANIES INC CENTRAL INDEX KEY: 0000892147 STANDARD INDUSTRIAL CLASSIFICATION: 5090 IRS NUMBER: 860704792 STATE OF INCORPORATION: AZ FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: S-3MEF SEC ACT: 1933 Act SEC FILE NUMBER: 333-07104 FILM NUMBER: 97626076 BUSINESS ADDRESS: STREET 1: 2401 W 1ST ST STREET 2: STE 130 CITY: TEMPE STATE: AZ ZIP: 85281 BUSINESS PHONE: 6028940100 MAIL ADDRESS: STREET 1: 2401 W 1ST STREET CITY: TEMPE STATE: AZ ZIP: 85281 POS462B 1 POS462B AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 19, 1997 REGISTRATION NO. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------- FORM S-3 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 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) ---------- 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 ---------- 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 ================================================================================ 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 ================================================================================ (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. 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 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:
SIGNATURE POSITION DATE --------- -------- ---- /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
EX-5.0 2 OPINION OF COUNSEL 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 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 EX-23.2 3 ACCOUNTANT'S CONSENT 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 -----END PRIVACY-ENHANCED MESSAGE-----