exv10w72



 





Exhibit 10.72




ACTION PERFORMANCE COMPANIES, INC.

NON-QUALIFIED STOCK OPTION AGREEMENT




     THIS NON-QUALIFIED STOCK OPTION AGREEMENT is made as of the Grant Date, as
set forth on the attached Exhibit A, by and between Action Performance
Companies, Inc., an Arizona corporation (the “Company”), and the person named
as the Optionholder (the “Optionholder”) on the attached Exhibit A.



     The Company contemplates that Optionholder will be a key person associated
with the Company, and the Company considers it desirable and in its best
interest that Optionholder be given a material inducement to be hired by the
Company by acquiring a proprietary interest in the Company as an added
incentive to advance the interest of the Company by possessing an option to
purchase the Company’s common stock, par value $.01 per share (the “Common
Stock”). For purposes of this Agreement, the term “Company” includes any
parent or subsidiary of the Company as defined in Section 424 of the Internal
Revenue Code of 1986, as amended (the “Code”).



     NOW, THEREFORE, it is agreed by and between the parties as follows:



     1. Grant of Option. The Company hereby grants to Optionholder, as of the
grant date (the “Grant Date”) specified in the attached Exhibit A, the right,
privilege, and option (“Option”) to purchase shares of Common Stock as set
forth on the attached Exhibit A (the “Optioned Shares”). The Option is
intended to be a Non-Qualified Stock Option.



     2. Option Price. The option price (the “Option Price”) as determined by
the Plan Administrator is set forth on the attached Exhibit A, which price has
been determined by the Company’s Board of Directors (the “Board”) to be not
less than 100% of the fair market value per share of the Common Stock on the
Grant Date of this Option.



     3. Vesting of Option.



          (a) Vesting Schedule. The vesting schedule shall be as set forth on
Exhibit A hereto.



          (b) Acceleration. The Board may, by resolution adopted after the Grant
Date in its sole and absolute discretion, allow the Option to be exercised on
an accelerated basis.



     4. Exercise of Option. The Option issued hereunder shall be exercisable
by written notice to the Company, addressed to the Company at its principal
place of business, in accordance with the terms of this Option Agreement. Such
notice shall state the election to exercise the Option and the number of shares
with respect to which it is being exercised, and shall be signed by the
Optionholder. Such notice shall be accompanied by payment in full of the
exercise price for the number of shares being purchased. Payment may be made
in cash or by check or, if then permitted by the Board, by tendering duly
endorsed certificates representing shares of Common Stock then owned by the
Optionholder and held for the requisite period necessary to avoid a charge to
the Company’s earnings and valued at fair market value on the date of exercise.
Upon the exercise of the Option, the Company shall deliver, or cause to be
delivered, to the Optionholder a certificate or certificates representing the
shares of Common Stock purchased upon such exercise as soon as practicable
after payment for those shares has been received by the Company. If the Option
is exercised pursuant to Section 10 hereof by any person other than the
Optionholder, such notice shall be
accompanied by appropriate proof of the right of such person to exercise
the Option. All shares that are purchased and paid for in full upon the
exercise of the Option shall be fully paid and non-assessable.



     5. Stock Lock-up. The Optionholder hereby agrees that, at the request of
the Company, the Optionholder (or in the case of the Optionholder’s death, his
or her successors) shall agree not to sell or otherwise transfer any acquired
Optioned Shares during any stock lock-up period agreed to by the Company and
any underwriter associated with a public offering of Common Stock.



     6. Termination of Option. The Option, to the extent not previously
exercised, shall terminate upon the first to occur of the date that is (a)
three months after termination of the Optionholder’s service with the Company
or any parent or subsidiary of the Company, unless due to death or Disability
(as defined in Section



 









 




22(e)(3) of the Code); (b) one year after termination of
service due to death or Disability; or (c) ten years after the Grant Date.
Notwithstanding the foregoing (i) if the Optionholder’s service is terminated
by the Company in its good faith judgment, for (A) commission of a crime by the
Optionholder or for reasons involving moral turpitude; (B) an act by the
Optionholder which tends to bring the Company into disrepute; or (C) negligent,
fraudulent, or willful misconduct by the Optionholder, or (ii) if after the
service of the Optionholder is terminated, the Optionholder commits acts
detrimental to the Company’s interests, then the Option shall thereafter be
void for all purposes.




     7. No Privilege of Stock Ownership. The holder of the Option granted
hereunder shall not have any of the rights of a shareholder with respect to the
Optioned Shares until such Optionholder shall have exercised the Option, paid
the Option Price, and received a stock certificate for the purchased shares of
Common Stock.



     8. Liability of the Company. The inability of the Company to obtain
approval from any regulatory body having authority deemed by the Company to be
necessary to the lawful issuance and sale of any Common Stock pursuant to this
Agreement shall relieve the Company of any liability with respect to the
nonissuance or sale of the Common Stock as to which such approval shall not
have been obtained. The Company, however, shall use its best efforts to obtain
all such approvals.



     9. No Employment or Service Contract. Nothing in this Agreement shall
confer upon the Optionholder any right to continue in the service of the
Company (or any parent or subsidiary corporation of the Company employing or
retaining Optionholder) for any period of time or to interfere with or
otherwise restrict in any way the rights of the Company (or any parent or
subsidiary corporation of the Company employing or retaining Optionholder) or
the Optionholder, which rights are hereby expressly reserved by each, to
terminate the service of Optionholder at any time for any reason whatsoever,
with or without cause.



     10. Assignability. Unless the Optionholder has received written consent
of the Board, neither this Option nor any rights or privileges conferred hereby
shall be assignable or transferable by the Optionholder other than by will or
by the laws of descent and distribution, and this Option shall be exercisable
only by Optionholder during the Optionholder’s lifetime. Upon the death of
Optionholder, the rights of the successors to Optionholder shall be limited as
set forth in this Agreement.



     11. Binding Affect. This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective heirs, executors, administrators,
successors, and permitted assigns.



     12. Compliance With Laws and Regulations; Securities Matters.



          (a) The exercise of this Option and the issuance of the Common Stock upon
such exercise shall be subject to compliance by the Company and the
Optionholder with all applicable requirements of law relating thereto and with
all applicable regulations of any stock exchange or trading market on which the
shares of the Common Stock may be listed at the time of such exercise and
issuance. In connection with the exercise of this Option, Optionholder shall
execute and deliver to the Company such representations in writing as may be
requested by the Company in order for it to comply with applicable requirements
of federal and state securities laws.



          (b) The Option granted hereunder may be exercised by the Optionholder only
if (i) the shares of Common Stock which are to be issued upon such exercise are
registered under the Securities Act of 1933, as amended (the “1933 Act”) and
any and all other applicable securities laws, or (ii) the Company, upon advice
of counsel, determines that the issuance of the shares of Common Stock upon the
exercise of the Option is exempt from registration requirements.



          (c) The Company is under no obligation to register, under the 1933 Act or
any other applicable securities laws, any of the shares of Common Stock to be
issued to the Optionholder upon the exercise of the Option or to take any
action which would make available any exemption from registration. If the
shares to be issued to the Optionholder upon the exercise of the Option have
not been registered under the 1933 Act and all other applicable securities
laws, those shares will be “restricted securities” within the meaning of Rule
144 under the 1933 Act and must be held indefinitely without any transfer,
sale, or other disposition unless (a) the shares are



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subsequently registered
under the 1933 Act and all other applicable securities laws, or (b) the
Optionholder obtains an opinion of counsel which is satisfactory to counsel for
the Company that the shares may be sold in reliance on an exemption from
registration requirements. In the event that the shares to be issued upon
exercise of the Option are “restricted securities,” the certificates
representing shares of Common Stock issued upon exercise of an Option shall be
endorsed with a legend reading substantially as follows:





THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND ARE “RESTRICTED SECURITIES” AS DEFINED BY
RULE 144 UNDER THAT ACT. THE SHARES MAY NOT BE SOLD,
TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF
AN EFFECTIVE REGISTRATION STATEMENT REGISTERING THE
SHARES UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR, IN LIEU THEREOF, AN OPINION OF COUNSEL FOR THIS
COMPANY TO THE EFFECT THAT REGISTRATION IS NOT
REQUIRED UNDER THAT ACT.



     13. Withholding Taxes; Other Deductions. The Company shall have the right
to deduct from any settlement of the Option, including the delivery or vesting
of shares (a) an amount sufficient to cover withholding as required by law for
any federal, state, or local taxes, and (b) any amounts due from the
Optionholder to the Company or to any subsidiary or parent of the Company or to
take such other action as may be necessary to satisfy any such withholding or
other obligations, including withholding from any other cash amounts due or to
become due from the Company to the Optionholder an amount equal to such taxes
or obligations.



     14. Notices. Any notice required to be given or delivered to the Company under the
terms of this Agreement shall be in writing and addressed to the Company in
care of the Company’s Secretary at its principal corporate offices. Any notice
required to be given or delivered to Optionholder shall be addressed to the
address indicated on Exhibit A. All notices shall be deemed to have been given
or delivered upon personal delivery or upon deposit in the U.S. mail, postage
prepaid, and properly addressed to the party to be notified.



     15. Board Decisions. All decisions of the Board with respect to any
question or issue arising under this Agreement shall be conclusive and binding
on all persons having an interest in this Option.



     IN WITNESS WHEREOF the parties hereto have executed this Agreement or
caused it to be executed as of the Grant Date.



	 	 	 	 	 	 	 
	 	 	Action Performance Companies, Inc.
	 
	 	 	 	 	 	 
	

	 	By: 
	 	 	 	 
	

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	

	 	Its:
	 	 	 	 
	

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	

	 	Optionholder 
	 	 	 	 
	 
	 	 	 	 	 	 
	

	 	Printed Name: 
	 	 	 	 
	

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	

	 	Social Security Number: 
	 	 	 	 
	

	 	 	 	 	 	 







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EXHIBIT A




	 	 	 
	Name of Optionholder:
	 	 
	

	 	
 
	 
	 	 
	Address of Optionholder:
	 	 
	

	 	
 
	 
	 	 
	Grant Date:
	 	 
	

	 	
 
	 
	 	 
	Option Price per Share:

	 	$         per share
	 
	 	 
	Number of Non-qualified
Optioned Shares:
	 	 
	

	 	
 
	 
	 	 
	Vesting Schedule:
	 	 
	

	 	
 







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