exv10w76



 





EXHIBIT 10.76




EMPLOYMENT AGREEMENT




DATED AS OF DECEMBER 10, 2004




BETWEEN




ACTION PERFORMANCE COMPANIES, INC.




AND




FRED W. WAGENHALS




 









 







TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page

	1.

	 	Position and Duties
	 	 	1	 
	2.

	 	Term of Employment
	 	 	1	 
	3.

	 	Compensation and Other Benefits
	 	 	1	 
	

	 	(a) Base Salary
	 	 	1	 
	

	 	(b) Bonus
	 	 	2	 
	

	 	(c) Stock Options
	 	 	2	 
	

	 	(d) Benefits
	 	 	2	 
	

	 	(e) Vacations
	 	 	2	 
	

	 	(f) Business Expenses
	 	 	2	 
	4.

	 	Termination by Employer
	 	 	2	 
	

	 	(a) Termination for Cause
	 	 	2	 
	

	 	(b) Termination without Cause
	 	 	3	 
	5.

	 	Termination by Executive
	 	 	3	 
	

	 	(a) Termination for Good Reason
	 	 	3	 
	

	 	(b) Change of Control
	 	 	3	 
	

	 	(c) Termination Without Good Reason
	 	 	4	 
	6.

	 	Death or Disability
	 	 	4	 
	

	 	(a) Death
	 	 	4	 
	

	 	(b) Disability
	 	 	5	 
	7.

	 	Severance Benefits
	 	 	5	 
	

	 	(a) Effective Date
	 	 	5	 
	

	 	(b) Benefits
	 	 	5	 
	

	 	(c) Exceptions to Benefits
	 	 	5	 
	

	 	(d) Future Employment
	 	 	6	 
	8.

	 	Covenant-Not-to-Compete
	 	 	6	 







i








 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page

	

	 	(a) Interests to be Protected
	 	 	6	 
	

	 	(b) Devotion to Employment
	 	 	6	 
	

	 	(c) Non-Solicitation of Customers
	 	 	7	 
	

	 	(d) Non-Solicitation of Executives
	 	 	7	 
	

	 	(e) Competing Business
	 	 	7	 
	

	 	(f) Limitation and Judicial Amendment
	 	 	7	 
	

	 	(g) Injunctive Relief, Damages and Forfeiture
	 	 	8	 
	

	 	(h) Survival
	 	 	8	 
	9.

	 	Confidential Information
	 	 	8	 
	10.

	 	Indemnity by Employer
	 	 	8	 
	

	 	(a) Generally
	 	 	8	 
	

	 	(b) Expenses
	 	 	8	 
	

	 	(c) Proceeding
	 	 	8	 
	

	 	(d) Payment of Executive Expenses
	 	 	9	 
	11.

	 	Miscellaneous
	 	 	9	 
	

	 	(a) Notices
	 	 	9	 
	

	 	(b) Indulgences
	 	 	9	 
	

	 	(c) Controlling Law
	 	 	10	 
	

	 	(d) Binding Nature of Agreement
	 	 	10	 
	

	 	(e) Execution in Counterpart
	 	 	10	 
	

	 	(f) Provisions Separable
	 	 	10	 
	

	 	(g) Entire Agreement
	 	 	10	 
	

	 	(h) Paragraph Headings
	 	 	10	 
	

	 	(i) Number of Days
	 	 	10	 
	

	 	(j) Successors and Assigns
	 	 	10	 







ii








 






EMPLOYMENT AGREEMENT




     EMPLOYMENT AGREEMENT dated as of the 10th day of December, 2004 by and
between ACTION PERFORMANCE COMPANIES, INC., an Arizona corporation (“Employer”)
and FRED W. WAGENHALS (“Executive”). For purposes of paragraphs 8, 9, and 10
of this Agreement, the term “Employer” shall include each of Employer’s
subsidiaries and operating divisions.



W I T N E S S E T H:




     Executive currently serves as Chairman of the Board, President, and Chief
Executive Officer of Employer pursuant to the terms of an employment agreement
dated as of July 31, 2000 (the “2000 Agreement”).



     Employer desires to continue to employ Executive, and Executive desires to
accept such continued employment, all on the terms and conditions hereinafter
set forth.



     This Agreement shall replace the 2000 Agreement in all respects.



     NOW, THEREFORE, in consideration of the premises and of the mutual
covenants set forth in this Agreement, the parties hereto agree as follows:



     1. Position and Duties. Executive shall be employed as the Chairman of
the Board, President, and Chief Executive Officer of Employer and shall report
only to the Board of Directors of Employer (the “Board”). Executive shall
devote substantially all of his business time to the business of Employer and
serve Employer faithfully, loyally, honestly, and to the best of his ability.
This Agreement, however, shall not preclude Executive from (a) serving on the
board of directors of not more than three other companies that do not compete
with Employer, (b) serve on the governing body of a reasonable number of trade
associations or charitable organizations, (c) engaging in charitable activities
and community affairs, and (d) managing his personal investments and affairs,
provided that such activities do not conflict or materially interfere with the
effective discharge of his duties and responsibilities to Employer and to the
extent Employer does not reasonably object to any service by Executive on
behalf of any such third party.



     2. Term of Employment. The term of Executive’s employment hereunder shall
commence on the date hereof and shall continue until December 31, 2007 (the
“Initial Term”) and from year to year thereafter (each a “Renewal Term”),
unless and until terminated by either party giving written notice to the other
not less than sixty (60) days prior to the end of the then current term, unless
earlier terminated under the terms of this Agreement.



     3. Compensation and Other Benefits.



          (a) Base Salary. Employer shall pay to Executive a base salary at a rate
of Eight Hundred Thousand Dollars ($800,000) per annum to be paid in equal
monthly installments, or in such other periodic installments upon which
Employer and Executive shall mutually agree. On at least an annual basis, the
Compensation Committee of the Board shall



 









 







review Executive’s base salary and may increase but not decrease
Executive’s base salary in the committee’s discretion.



          (b) Bonus. Executive shall be entitled to participate in all bonus
programs maintained for executives of Employer. The amount of any bonuses
under such programs or otherwise shall be determined by the Compensation
Committee of the Board.



          (c) Stock Options. Executive shall be entitled to participate in all
stock option and comparable programs available to executives of Employer. The
granting of any stock options and the provisions thereof shall be determined by
the Compensation Committee of the Board.



          (d) Benefit Plans. Executive shall be entitled to participate in any
benefit plans maintained by Employer, including, but not limited to, retirement
plans, disability plans, life insurance plans, and health and dental plans
available to other executive employees of Employer, subject to any
restrictions, including waiting periods, specified in the plans.



          (e) Other Benefits Executive shall also receive (i) reimbursement for
reasonable annual tax and financial consulting fees, (ii) reimbursement for the
costs of an annual physical by the doctor of his choice, and (iii)
reimbursement for reasonable legal and accounting fees and expenses incurred by
Executive in connection with this Agreement, all of which shall be subject to a
gross up, which means that Executive will receive an additional payment in an
amount such that after Executive’s payment of taxes on that additional payment,
a sufficient sum remains to pay Executive’s tax liability resulting from such
reimbursement.



          (f) Vacations. Executive shall also be entitled to four (4) weeks of paid
vacation each calendar year, with such vacations to be scheduled and taken by
Executive in his discretion, provided no such vacation shall interfere with the
performance of Executive’s duties hereunder and no unused vacation may be
carried over to a succeeding calendar year.



          (g) Business Expenses. Employer shall reimburse Executive for any and all
necessary, customary, and usual expenses, properly receipted in accordance with
Employer’s policies, incurred by Executive on behalf of Employer. If Executive
is required to travel in the performance of his duties under this Agreement,
Executive shall be entitled to use any plane maintained by Employer or to fly
first class on commercial flights at his election at Employer’s cost.



     4. Termination by Employer.



          (a) Termination for Cause. Employer may terminate Executive’s employment
under this Agreement for Cause at any time upon written notice to Executive.
For purposes of this Agreement, “Cause” shall be limited to discharge resulting
from a determination by the Board that Executive (i) has been convicted of a
felony, involving dishonesty, fraud, theft, or embezzlement; (ii) has
repeatedly failed or refused, after written notice from Employer along with
failure of Executive to cure within thirty (30) days of receipt of such notice,
in a material respect to follow reasonable policies or directives established
by Employer; (iii) has willfully and persistently failed, after written notice
from Employer within thirty (30) days of receipt of such notice, to attend to
material duties or obligations imposed upon him under this Agreement; or



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(iv) has performed an act or failed to act for which if he were prosecuted
and convicted, would constitute a felony involving One Thousand Dollars
($1,000) or more of money or property of Employer. The existence of “Cause”
shall be determined by the Board acting in good faith after prior notice to
Executive and after providing Executive with an opportunity to be heard. If
Executive’s employment is terminated for Cause, Executive shall receive no
Severance Benefits pursuant to paragraph 7.



          (b) Termination without Cause. Employer also may terminate Executive’s
employment under this Agreement without Cause at any time upon written notice
to Executive. In the event Executive’s employment is terminated by Employer
without Cause, Executive shall receive the Severance Benefits pursuant to
paragraph 7.



     5. Termination by Executive. Executive may terminate his employment under
this Agreement with or without “Good Reason” in accordance with the provisions
of this paragraph 5.



          (a) Termination for Good Reason. Executive may terminate his employment
under this Agreement for “Good Reason” by giving written notice to Employer
within sixty (60) days, or such longer period as may be agreed to in writing by
Employer, of Executive’s receipt of notice of the occurrence of any event
constituting “Good Reason,” as described below. Executive shall have “Good
Reason” to terminate his employment under this Agreement upon the occurrence of
any of the following events:



               (i) Any reduction in Executive’s status, duties, authority, or
compensation.



               (ii) Executive is demoted to a position of less stature or importance
within Employer than the position described in paragraph 1;



               (iii) Executive is assigned duties inconsistent with the positions,
duties, responsibilities, or status of the Chief Executive Officer of Employer;



               (iv) Executive is required to relocate to an employment location that is
more than twenty-five (25) miles from his current employment location, which
the parties agree is Employer’s present corporate headquarters; or



               (v) Upon an event of a “Change of Control” of Employer, provided that a
change of control shall not be considered to have taken place for purposes of
this Agreement in the event the Change of Control shall have been specifically
approved by the Board and the provisions of this Agreement remain in full force
and effect as to Executive and Executive suffers no reduction in Executive’s
status, duties, authority, or compensation.



          (b) Change of Control. For the purposes of this paragraph 5, the term
“Change in Control” of Employer shall mean a Change in Control of a nature that
would be required to be reported in response to Item 6(e) of Schedule 14A of
Regulation 14A promulgated under the Securities Exchange Act of 1934 as in
effect on the date of this Agreement or, if Item 6(e) is no longer in effect,
any regulations issued by the Securities and Exchange Commission



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pursuant to the Securities Exchange Act of 1934 that serve similar
purposes; provided that, without limitation, such a Change in Control shall be
deemed to have occurred if and when



               (i) any person (as such term is used in Sections 13(d) and 14(d)(2) of the
Securities Exchange Act of 1934) becomes the “beneficial owner” (as defined in
Rule 13d-3 under the Securities Exchange Act of 1934) directly or indirectly of
equity securities of Employer representing thirty percent (30%) or more of the
combined voting power of Employer’s then-outstanding equity securities;



               (ii) during the term of this Agreement, individuals who, at the beginning
of such period, constituted the Board of Directors of Employer (the “Original
Directors”), cease for any reason to constitute at least a majority thereof
unless the election or nomination for election of each new director was
approved (an “Approved Director”) by the unanimous vote of the Board
constituted entirely of Existing Directors and/or Approved Directors;



               (iii) a tender offer or exchange offer is made whereby the effect of such
offer is to take over and control Employer, and such offer is consummated for
the equity securities of Employer representing twenty percent (20%) or more of
the combined voting power of Employer’s then-outstanding voting securities;



               (iv) Employer is merged, consolidated, or enters into a reorganization
transaction with another person and, as the result of such merger,
consolidation, or reorganization, less than 75 percent (75%) of the outstanding
equity securities of the surviving, or resulting person shall then be owned in
the aggregate by the former stockholders of Employer; or



               (v) Employer transfers substantially all of its assets to another person
or entity which is not a wholly owned subsidiary of Employer.



 If Executive terminates this Agreement and his employment for Good Reason,
Executive shall be entitled to receive Severance Benefits pursuant to paragraph
7.



          (c) Termination Without Good Reason. Executive also may terminate his
employment without Good Reason at any time by giving written notice to
Employer. If Executive terminates his employment under this Agreement without
Good Reason, Executive shall not receive Severance Benefits pursuant to
paragraph 7.



     6. Death or Disability.



          (a) Death. Executive’s employment shall terminate automatically on
Executive’s death. Any compensation or other amounts due to Executive for
services rendered prior to his death shall be paid to Executive’s surviving
spouse, or if Executive does not leave a surviving spouse, to Executive’s
estate. No other benefits shall be payable to Executive’s heirs pursuant to
this Agreement, but amounts may be payable pursuant to any life insurance or
other benefit plans maintained by Employer.



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          (b) Disability. In the event Executive becomes “Disabled,” Executive’s
employment hereunder and Employer’s obligation to pay Executive’s Base Salary
shall continue for a period of twelve (12) months from the date of Executive’s
initial absence due to such Disability and, in the event Executive becomes
“Disabled” during the first year of his employment with Employer. Executive
shall also receive any additional compensation to which Executive may be
entitled pursuant to paragraph 3 (less any amounts payable to Executive
pursuant to any long-term disability insurance policy paid for by Employer).
If at the end of the twelve (12) month period, Executive has not recovered from
such Disability, Executive’s employment hereunder shall automatically cease and
terminate. Executive shall be considered “Disabled” or to be suffering from a
“Disability” for purposes of this paragraph 6(b) if, in the judgment of a
licensed physician selected by the Board and confirmed by a licensed physician
designated by Executive, and after any reasonable accommodations required by
applicable law, he is unable to perform the essential functions of his position
due to a physical or mental impairment, and such incapacity is expected to
continue for a period of at least twelve (12) consecutive months from the date
of the initial absence due to such incapacity. The determination by such
physicians shall be binding and conclusive for all purposes. If the physician
selected by the Board and the physician selected by Executive cannot agree, the
two (2) physicians shall select a third (3rd) physician. The decision of the
third (3rd) physician concerning Executive’s Disability then shall be binding
and conclusive on all interested parties.



     7. Severance Benefits. If during the Initial Term or any Renewal Term,
Executive’s employment under this Agreement is terminated without Cause by
Employer pursuant to paragraph 4(b) prior to the last day of the Initial Term
or any Renewal Term, or if Executive elects to terminate his employment for
Good Reason pursuant to paragraph 5(a), Executive shall receive the “Severance
Benefits” provided by this paragraph. In addition, Executive also shall
receive the Severance Benefits if his employment is terminated due to
Disability pursuant to paragraph 6(b).



          (a) Effective Date. The Severance Benefits shall begin immediately
following the effective date of termination of employment and shall continue to
be payable for a period of twenty-four (24) months following the effective
date, in all events except as set forth in paragraph 6(b).



          (b) Benefits. The Executive’s Severance Benefits shall consist of the
continuation of the Executive’s then Base Salary and any applicable additional
compensation as set forth in paragraph 3 for a period of twenty-four (24)
months following the effective date. The Severance Benefits shall also consist
of the continuation of any health, life, disability, or other insurance
benefits that Executive was receiving as of his last day of active employment
for a period of twenty-four (24) months following the effective date, but only
to the extent permitted under the policies for such benefits. If a particular
insurance benefit may not be continued for any reason, Employer shall pay the
cash equivalent to the Executive on a monthly basis or in a single lump sum.
The amount of the cash equivalent of the benefit and whether the cash
equivalent will be paid in monthly installments or in a lump sum will be
determined by Employer in the exercise of its discretion.



          (c) Exceptions to Benefits. If Executive voluntarily terminates this
Agreement and his employment without Good Reason prior to the end of the
Initial Term or any



5









 







Renewal Term, or if Employer terminates the Agreement and Executive’s
employment for Cause, no Severance Benefits shall be paid to Executive. No
Severance Benefits are payable in the event of Executive’s death while in the
active employ of Employer.



          (d) Future Employment. The payment of Severance Benefits shall not be
affected by whether Executive seeks or obtains other employment. Executive
shall have no obligation to seek or obtain other employment, and Executive’s
Severance Benefits shall not be impacted by Executive’s failure to mitigate.



     8. Covenant-Not-to-Compete.



          (a) Interests to be Protected.



               (i) Customers. The parties acknowledge that during the term of his
employment under this Agreement, Executive will perform essential services for
Employer, its employees, and shareholders, and for customers of Employer.
Therefore, Executive will be given an opportunity to meet, work with, and
develop close working relationships with Employer’s customers on a first-hand
basis and will gain valuable insight as to the customers’ operations,
personnel, and need for services. In addition, Executive will be exposed to,
have access to, and be required to work with, a considerable amount of
Employer’s Confidential and Proprietary Information.



               (ii) Employees. The parties also expressly recognize and acknowledge that
the personnel of Employer have been trained by, and are valuable to Employer,
and that if Employer must hire new personnel or retrain existing personnel to
fill vacancies it will incur substantial expense in recruiting and training
such personnel. The parties expressly recognize that should Executive compete
with Employer in any manner whatsoever, it could seriously impair the goodwill
and diminish the value of Employer’s business.



               (iii) Extended Duration. The parties acknowledge that this covenant has
an extended duration; however, they agree that this covenant is reasonable and
it is necessary for the protection of Employer, its shareholders and employees.



               (iv) Fair and Reasonable. For these and other reasons, and the fact that
there are many other employment opportunities available to Executive if his
employment with Employer should terminate, the parties are in full and complete
agreement that the following restrictive covenants (which together are referred
to as the “Covenant-Not-To-Compete”) are fair and reasonable and are freely,
voluntarily, and knowingly entered into. Further, each party has been given the
opportunity to consult with independent legal counsel before entering into this
Agreement.



          (b) Devotion to Employment. Executive shall devote substantially all his
business time and efforts to the performance of his duties on behalf of
Employer during the term of his employment under this Agreement. During his
term of employment, Executive shall not at any time or place or to any extent
whatsoever, either directly or indirectly, without the express written consent
of Employer, engage in any outside employment, or in any activity competitive
with or adverse to Employer’s business or affairs, whether alone or as partner,
officer, director, employee, shareholder of any corporation or as a trustee,
fiduciary, consultant or other



6









 







representative. This is not intended to prohibit Executive from engaging
in nonprofessional activities, such as personal investments or conducting to a
reasonable extent private business affairs, which may include other boards of
directors’ activity, so long as they do not conflict with Employer’s business.
Participation to a reasonable extent in civic, social, or community activities
is encouraged.



          (c) Non-Solicitation of Customers. During the term of Executive’s
employment with Employer under this Agreement and for a period of twenty-four
(24) months after the termination of employment with Employer under this
Agreement, regardless of who initiates the termination and for whatever reason,
Executive shall not directly or indirectly, for himself, or on behalf of, or in
conjunction with, any other person, company, partnership, corporation, or
governmental entity, in any manner whatsoever, call upon, contact, encourage,
handle, or solicit customers of Employer with whom he has worked as an employee
of Employer at any time prior to termination, or at the time of termination,
for the purpose of soliciting or selling such customer the same, similar, or
related services that he provided on behalf of Employer.



          (d) Non-Solicitation of Executives. During the term of Executive’s
employment with Employer under this Agreement and for a period of twenty-four
(24) months after the termination of employment with Employer under this
Agreement, regardless of who initiates the termination and for whatever reason,
Executive shall not directly or indirectly, for himself, or on behalf of, or in
conjunction with, any other person, company, partnership, corporation, or
governmental entity, seek to hire, and/or hire any of Employer’s personnel or
employees for the purpose of having such employee engage in services that are
the same, similar, or related to the services that such employee provided for
Employer.



          (e) Competing Business. During the term of Executive’s employment with
Employer under this Agreement and for a period of twenty-four (24) months after
the termination of employment with Employer under this Agreement, regardless of
who initiates the termination and for whatever reason, Executive shall not,
directly or indirectly, for himself, or on behalf of, or in conjunction with,
any other person, company, partnership, corporation, or governmental entity, in
any manner whatsoever, engage in the same or similar business as Employer,
which would be in direct competition with any Employer line of business, in any
geographical service area where Employer engaged in business at time of
termination. For the purposes of this provision, the term “competition” shall
mean directly or indirectly engaging in or having a substantial interest in a
business or operation which has been, is, or will be, providing the same
products provided by Employer; provided, however the ownership of not more than
5% by Executive of a publicly held corporation shall not constitute competition
which is prohibited by this paragraph 8(e).



          (f) Limitation and Judicial Amendment. Notwithstanding any other
provision of this Agreement, the provisions contained in paragraphs 8(c), 8(d),
and 8(e) shall not apply for more than twelve (12) months after Executive no
longer receives Severance Benefits under this Agreement. If the scope of any
provision of this Agreement is found by the Court to be too broad to permit
enforcement to its full extent, then such provision shall be enforced to the
maximum extent permitted by law. The parties agree that the scope of any
provision of this Agreement may be modified by a judge in any proceeding to
enforce this Agreement, so that



7









 







such provision can be enforced to the maximum extent permitted by law. If
any provision of this Agreement is found to be invalid or unenforceable for any
reason, it shall not affect the validity of the remaining provisions of this
Agreement.



          (g) Injunctive Relief, Damages and Forfeiture. Due to the nature of
Executive’s position with Employer, and with full realization that a violation
of this Agreement will cause immediate and irreparable injury and damage, which
is not readily measurable, and to protect Employer’s interests, Executive
understands and agrees that in addition to instituting legal proceedings to
recover damages resulting from a breach of this Agreement, Employer may seek to
enforce this Agreement with an action for injunctive relief, to cease or
prevent any actual or threatened violation of this Agreement on the part of
Executive.



          (h) Survival. The provisions of this paragraph shall survive the
termination of Executive’s employment to the extent necessary to enforce such
provisions.



     9. Confidential Information. During the course of his employment under
this Agreement, Executive will become exposed to a substantial amount of
confidential and proprietary information, including, but not limited to,
financial information, annual reports, audited and unaudited financial reports,
operational budgets and strategies, methods of operation, customer lists,
strategic plans, business plans, marketing plans and strategies, new business
strategies, merger and acquisition strategies, management systems programs,
computer systems, personnel and compensation information and payroll data, and
other such reports, documents, or information (collectively the “Confidential
and Proprietary Information”). In the event his employment is terminated by
either party for any reason, Executive agrees that he will not take with him
any copies of such Confidential and Proprietary Information in any form,
format, or manner whatsoever (including computer print-outs, computer tapes,
floppy disks, and CD roms) nor will he disclose the same in whole or in part to
any person or entity, in any manner either directly or indirectly. Excluded
from this Agreement is information that is already disclosed to third parties
and is in the public domain or that Employer consents to be disclosed, with
such consent to be in writing. The provisions of this paragraph shall survive
the termination of this Agreement.



     10. Indemnity by Employer.



          (a) Generally. Unless Executive is covered by an indemnity agreement
covering the directors and executive officers of Employer, Employer shall
indemnify Executive to the fullest extent permitted or required by the laws of
the state of Arizona of and from any “Expenses” incurred by Executive in any
“Proceeding.”



          (b) Expenses. For purposes of this paragraph 10, “Expenses” shall mean
and include all expense, liability, and loss, including expenses of
investigations, judicial or administrative proceedings or appeals, attorney,
accountant and other professional fees and disbursements, judgments, fines, and
amounts paid in settlement.



          (c) Proceeding. For purposes of this paragraph 10, “Proceeding” shall
mean and include any threatened, pending, or completed action, suit, or
proceeding, whether brought in the right of Employer or otherwise, and whether
of a civil, criminal, administrative, or



8









 







investigative nature, in which the Executive may be or may have been
involved as a party, witness or otherwise, by reason of the fact that the
Executive is or was an officer of Employer or is or was serving at the request
of Employer as a director, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise, whether or not serving
in such capacity at the time any liability or expense is incurred for which
indemnification may be provided under this Agreement.



          (d) Payment of Executive Expenses. Employer shall pay the Expenses
incurred by Executive in any Proceeding in advance of the final disposition of
the Proceeding at the written request of Executive, if Executive (i) furnishes
Employer with a written affirmation of Executive’s good faith belief that he is
entitled to indemnification by Employer; and (ii) furnishes Employer with a
written undertaking to repay the advance to the extent that it is ultimately
determined that Executive is not entitled to be indemnified by Employer. Such
undertaking shall be an unlimited general obligation of Executive, but need not
be secured. Advances pursuant to this paragraph 10 shall be made no later than
twenty (20) days after Employer’s receipt of the affirmation and undertakings
set forth above and shall be made without regard to the Executive’s ability to
repay the amount advanced and without regard to Executive’s ultimate
entitlement to indemnification under this Agreement.



     11. Miscellaneous.



          (a) Notices. All notices, requests, demands and other communications
required or permitted under this Agreement shall be in writing and shall be
deemed to have been duly given upon (a) personal delivery, (b) transmitter’s
confirmation of the receipt of a facsimile or e-mail transmission, (c)
confirmed delivery by a standard overnight carrier, or (d) the expiration of
three business days after the day when mailed via United States Postal Service
by certified or registered mail, return receipt requested, postage prepaid at
the following addresses:




	 	(i)	 	If to Employer:
	 
	 	 	 	Action Performance Companies, Inc.

1480 South Hohokam Avenue

Tempe, Arizona 85281

Attention: Chief Financial Officer
	 
	 	(ii)	 	If to Executive:
	 
	 	 	 	1480 South Hohokam Avenue

Tempe, Arizona 85281




Either party may alter the address to which communications are to be sent by
giving notice of such change of address in conformity with the provisions of
this paragraph for the giving of notice.




          (b) Indulgences. Neither any failure nor any delay on the part of either
party to exercise any right, remedy, power, or privilege under this Agreement
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, remedy, power, or privilege preclude any other or further exercise
of the same or of any other right, remedy, power, or privilege, nor



9









 







shall any waiver of any right, remedy, power, or privilege with respect to
any occurrence be construed as a waiver of such right, remedy, power, or
privilege with respect to any other occurrence.



          (c) Controlling Law. This Agreement and all questions relating to its
validity, interpretation, performance, and enforcement, shall be governed by
and construed in accordance with the laws of the state of Arizona,
notwithstanding any Arizona or other conflict-of-interest provisions to the
contrary.



          (d) Binding Nature of Agreement. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs, personal
representatives, successors, and permitted assigns.



          (e) Execution in Counterpart. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original as
against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall become
binding when one or more counterparts hereof, individually or taken together,
shall bear the signatures of the parties reflected hereon as the signatories.



          (f) Provisions Separable. The provisions of this Agreement are
independent of and separable from each other, and no provision shall be
affected or rendered invalid or unenforceable by virtue of the fact that for
any reason any other or others of them may be invalid or unenforceable in whole
or in part.



          (g) Entire Agreement. This Agreement contains the entire understanding
between the parties hereto with respect to the subject matter hereof and
supersedes all prior and contemporaneous agreements and understandings,
inducements, and conditions, express or implied, oral or written, except as
herein contained. The express terms hereof control and supersede any course of
performance and/or usage of the trade inconsistent with any of the terms
hereof. This Agreement may not be modified or amended other than by an
agreement in writing.



          (h) Paragraph Headings. The paragraph headings in this Agreement are for
convenience only; they form no part of this Agreement and shall not affect its
interpretation.



          (i) Number of Days. In computing the number of days for purposes of this
Agreement, all days shall be counted, including Saturdays, Sundays, and
holidays; provided, however, that if the final day of any time period falls on
a Saturday, Sunday, or holiday, then the final day shall be deemed to be the
next day which is not a Saturday, Sunday, or holiday.



          (j) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of the parties hereto; provided
that because the obligations of Executive hereunder involve the performance of
personal services, such obligations shall not be delegated by Executive. For
purposes of this Agreement, successors and assigns shall include, but not be
limited to, any individual, corporation, trust, partnership, or other entity
that acquires a majority of the stock or assets of Employer by sale, merger,
consolidation, liquidation, or other form of transfer. Employer shall require
any successor (whether direct or indirect, by purchase, merger, consolidation,
or otherwise) to all or



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substantially all of the business and/or assets of Employer to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that Employer would be required to perform it if no such succession had
taken place. Without limiting the foregoing, unless the context otherwise
requires, the term “Employer” includes all subsidiaries of Employer.



     IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.


	 	 	 	 	 
	 	EMPLOYER:




ACTION PERFORMANCE COMPANIES, INC., 
an
Arizona corporation

 	 
	 	By:  	/s/  David M. Riddiford
 	 
	 	Name:	     	David M. Riddiford 	 
	 	Its:	     	        Chief Financial Officer 	 



	 	 	 	 	 
	 	EXECUTIVE:

 	 
	 	/s/  Fred W. Wagenhals
 	 
	 	Fred W. Wagenhals 	 
	 	 	 





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