S-2MEF

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As Filed with the Securities and Exchange Commission on December 5, 2001

Registration No. 333-    

SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

FORM S-2
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933

APEX MORTGAGE CAPITAL, INC.
(Exact name of registrant as specified in its charter)

Maryland	95-4650863
(State or other jurisdiction	(I.R.S. Employer
of incorporation or organization)	Identification Number)

865 South Figueroa Street
Los Angeles, California 90017
(213) 244-0440

(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)

Philip A. Barach
President and Chief Executive Officer
Apex Mortgage Capital, Inc.
865 South Figueroa Street
Los Angeles, California 90017
(213) 244-0440

(Name, address, including zip code, and telephone number, including area code,
of agent for service)

copies to:

Peter T. Healy, Esq.	William T. Quicksilver, Esq.
O'Melveny & Myers LLP	Manatt, Phelps & Phillips, LLP
275 Battery Street, Suite 2600	11355 West Olympic Boulevard
San Francisco, California 94111	Los Angeles, California 90064
(415) 984-8700	(310) 312-4000

   Approximate date of commencement of proposed sale to the public: as soon as practicable following the effective date of this registration statement.

   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, check the following box. / /

   If the registrant elects to deliver its latest annual report to security holders, or a complete and legible facsimile thereof, pursuant to Item 11(a)(1) of this Form, 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/ 333-73448

   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 number of the earlier effective registration statement for the same offering. / /

   If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration 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 of the Securities Act, please check the following box. / /

CALCULATION OF REGISTRATION FEE

Title of securities to be registered	Amount to be registered	Proposed maximum offering price per share (1)	Proposed maximum aggregate offering price (1)	Amount of registration fee (1)
Common Stock, par value $0.01 per share	575,000	$10.40	$5,980,000	$1,495

(1)

Based on the public offering price. The Registrant previously registered an aggregate of $32,695,650 worth of common stock on a Registration Statement on Form S-2 (Registration Number 333-73448), at which time a filing fee of $8,173.91 was paid. The Registrant has instructed a bank to transmit by wire transfer the additional filing fee of $1,495.00 in connection with the Rule 462(b) Registration Statement to the Securities and Exchange Commission. The Registrant will not revoke such instruction, and the Registrant has sufficient funds in such account to cover the amount of the registration fee.

EXPLANATORY NOTE AND INCORPORATION BY REFERENCE

    We hereby incorporate by reference into this registration statement, filed pursuant to the Securities Act of 1933, as amended, and Rule 462(b) promulgated thereunder, all of Part I and Part II of our registration statement on Form S-2 which was declared effective on December 5, 2001 (Registration No. 333-73448), including all amendments and exhibits thereto and all information incorporated by reference therein. We are filing this registration statement to register 575,000 shares of our common stock, $0.01 par value per share.

    The required opinions and consents are listed on the Exhibit Index attached to and filed with this registration statement.

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SIGNATURES

    Pursuant to the requirements of the Securities Act of 1933, the Company certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-2 and pursuant to Rule 462(b) under the Securities Act and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Los Angeles, State of California, on December 5, 2001.

APEX MORTGAGE CAPITAL, INC.
By:	/s/ David S. DeVitoDavid S. DeVito President and Chief Executive Officer

    Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the dates indicated.

Signature	Title	Date
* Philip A. Barach	President, Chief Executive Officer and Director
* Jeffrey E. Gundlach	Chief Investment Officer and Vice Chairman of the Board of Directors
* David S. DeVito	Interim Chief Financial Officer and Controller
* Marc I. Stern	Chairman of the Board of Directors
* Peter G. Allen	Director
* John C. Argue	Director
* John A. Gavin	Director
* Carl C. Gregory, III	Director

*By:
David S. DeVitoAttorney-in-Fact
December 5, 2001

S–1

EXHIBIT INDEX

    Pursuant to Item 601(a)(2) of Regulation S-K, this exhibit index immediately precedes the exhibits.

Exhibit No.	Description
5.1	Opinion of Ballard Spahr Andrews & Ingersoll, LLP as to legality of the shares being registered.
23.1	Deloitte & Touche LLP's Independent Auditors' Consent.
23.2	Consent of Ballard Spahr Andrews & Ingersoll, LLP (included within the opinion filed as Exhibit 5.1).
24.1	Powers of Attorney (previously filed).

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EXPLANATORY NOTE AND INCORPORATION BY REFERENCE
SIGNATURES
EXHIBIT INDEX

EX-5.1

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Exhibit 5.1

[LETTERHEAD OF BALLARD SPAHR ANDREWS & INGERSOLL, LLP]

December 5, 2001

Apex Mortgage Capital, Inc.
865 South Figueroa Street
Suite 1800
Los Angeles, California 90017

Re: Apex Mortgage Capital, Inc., a Maryland corporation (the "Company")—a Registration Statement on Form S-2 pertaining to Five Hundred Seventy-Five Thousand (575,000) shares (the "Shares") of common stock, par value one cent ($.01) per share (the "Common Stock") of the Company

Ladies and Gentlemen:

    We have acted as special Maryland corporate counsel to the Company in connection with the registration of the Shares under the Securities Act of 1933, as amended (the "Act"), on Form S-2, filed or to be filed with the Securities and Exchange Commission (the "Commission") on or about December 5, 2001, and any amendments thereto, if any are to be filed with the Commission subsequent to the date hereof. You have requested our opinion with respect to the matters set forth below.

    In our capacity as special Maryland corporate counsel to the Company and for the purposes of this opinion, we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents (collectively, the "Documents"):

(i)

the corporate charter of the Company (the "Charter"), represented by Articles of Incorporation filed with the State Department of Assessments and Taxation of Maryland (the "Department") on September 15, 1997, Articles of Amendment and Restatement filed with the Department on November 25, 1997, Articles Supplementary filed with the Department on July 23, 1999 and Articles of Revival filed with the Department on March 22, 2000;



(ii)

the Bylaws of the Company, as adopted on September 15, 1997 (the "Original Bylaws"), and the Amended and Restated Bylaws of the Company, as adopted on November 15, 2001 (the "Amended Bylaws" and together with the Original Bylaws, the "Bylaws");



(iii)

the Written Organizational Action of the Board of Directors of the Company, dated as of September 15, 1997 (the "Organizational Minutes");



(iv)

resolutions adopted by the Board of Directors of the Company on November 15, 2001, which, among other things, authorized the issuance of the Shares (the "Directors' Resolutions");



(v)

a certificate of David S. DeVito, the Interim Chief Financial Officer of the Company and Philip K. Holl, the Assistant Secretary of the Company, of even date herewith (the "Officers' Certificate"), to the effect that, among other things, the Charter, the Bylaws, the Organizational Minutes and the Directors' Resolutions are true, correct and complete, and that the Charter, the Amended Bylaws, the Organizational Minutes and the Directors' Resolutions have not been rescinded or modified and are in full force and effect on the date of the Officers' Certificate;



(vi)

the Registration Statement on Form S-2 filed or to be filed with the Commission pursuant to Rule 462(b) of the Act (the "Rule 462(b) Registration Statement"), and the Registration Statement on Form S-2, as amended (Registration No. 333-73488), filed by the Company with the Commission on November 15, 2001 and the related form of prospectus included therein

(the "Registration Statement" and together with the Rule 462(b) Registration Statement, the "Registration Statements");

(vii)

a status certificate of the Department, dated November 27, 2001, to the effect that the Company is duly incorporated and existing under the laws of the State of Maryland; and



(viii)

such other laws, records, documents, certificates, opinions and instruments as we have deemed necessary to render this opinion, subject to the limitations, assumptions and qualifications noted below.

    In reaching the opinion set forth below, we have assumed the following:

(a)

each person executing any of the Documents on behalf of a party (other than the Company) is duly authorized to do so;



(b)

each natural person executing any of the Documents is legally competent to do so;



(c)

any of the Documents submitted to us as originals are authentic; the form and content of any Documents submitted to us as unexecuted drafts do not differ in any respect relevant to this opinion from the form and content of such documents as executed and delivered; any of the Documents submitted to us as certified or photostatic copies conform to the original documents; all signatures on all of the Documents are genuine; all public records reviewed or relied upon by us or on our behalf are true and complete; all statements and information contained in the Documents are true and complete; there has been no modification of, or amendment to, any of the Documents, and there has been no waiver of any provision of any of the Documents by action or omission of the parties or otherwise;



(d)

the final number of Shares to be offered and sold by the Company pursuant to the Rule 462(b) Registration Statement and the final price to be received by the Company for the Shares will have been determined by the Pricing Committee (as defined in the Directors' Resolutions) in accordance with the Directors' Resolutions prior to the issuance of the Shares;



(e)

none of the Shares will be issued or transferred in violation of the provisions of Article V, Section 2 of the Charter relating to restrictions on ownership and transfer of stock; and



(f)

none of the Shares will be issued and sold to an Interested Stockholder of the Company or an Affiliate thereof, all as defined in Subtitle 6 of Title 3 of the Maryland General Corporation Law (the "MGCL"), in violation of Section 3-602 of the MGCL.

    Based on the foregoing, and subject to the assumptions and qualifications set forth herein, it is our opinion that, as of the date of this letter:

1)

The Company is a corporation duly incorporated and validly existing as a corporation in good standing under the laws of the State of Maryland.



2)

The Shares have been duly authorized for issuance by the Company, and the Shares, when issued and delivered in exchange for payment of the consideration therefor, will be validly issued, fully paid and non-assessable.

    The foregoing opinion is limited to the substantive laws of the State of Maryland, and we do not express any opinion herein concerning any other law. We express no opinion as to the applicability or effect of any federal or state securities laws, including the securities laws of the State of Maryland, or as to federal or state laws regarding fraudulent transfers. To the extent that any matter as to which our opinion is expressed herein would be governed by any jurisdiction other than the State of Maryland, we do not express any opinion on such matter.

    This opinion letter is issued as of the date hereof and is necessarily limited to laws now in effect and facts and circumstances presently existing and brought to our attention. We assume no obligation

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to supplement this opinion letter if any applicable laws change after the date hereof, or if we become aware of any facts or circumstances that now exist or that occur or arise in the future and may change the opinions expressed herein after the date hereof.

    This opinion is being furnished to you solely for submission to the Commission as an exhibit to the Rule 462(b) Registration Statement and, accordingly, may not be relied upon by, quoted in any manner to, or delivered to any other person or entity without, in each instance, our prior written consent.

    We consent to your filing this opinion as an exhibit to the Rule 462(b) Registration Statement and further consent to the filing of this opinion as an exhibit to the applications to securities commissioners for the various states of the United States for registration of the Shares. We also consent to the identification of our firm as Maryland counsel to the Company in the section of the Registration Statement entitled "Legal Matters." In giving this consent, we do not admit that we are within the category of persons whose consent is required by Section 7 of the Act.

Very truly yours,

/s/ Ballard Spahr Andrews & Ingersoll, LLP

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Exhibit 5.1

[LETTERHEAD OF BALLARD SPAHR ANDREWS & INGERSOLL, LLP]

EX-23.1

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Exhibit 23.1

INDEPENDENT AUDITORS' CONSENT

    We consent to the incorporation by reference in this Registration Statement on Form S-2 of Apex Mortgage Capital, Inc. of our report dated February 9, 2001, included and incorporated by reference in the Annual Report on Form 10-K of Apex Mortgage Capital, Inc. for the year ended December 31, 2000, and to the use of our report dated February 9, 2001, appearing in the Prospectus, which is part of the Registration Statement No. 333-73448. We also consent to the reference to us under the heading "Experts" in such Prospectus.

/s/ DELOITTE & TOUCHE LLP

Los Angeles, California
December 5, 2001

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Exhibit 23.1

INDEPENDENT AUDITORS' CONSENT