0001021408-01-508101.txt : 20011019 0001021408-01-508101.hdr.sgml : 20011019 ACCESSION NUMBER: 0001021408-01-508101 CONFORMED SUBMISSION TYPE: POS EX PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20011012 EFFECTIVENESS DATE: 20011012 FILER: COMPANY DATA: COMPANY CONFORMED NAME: APEX MORTGAGE CAPITAL INC CENTRAL INDEX KEY: 0001045956 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 954650863 STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: POS EX SEC ACT: 1933 Act SEC FILE NUMBER: 333-71494 FILM NUMBER: 1758458 BUSINESS ADDRESS: STREET 1: 865 FIGUEROA STREET STREET 2: STE 1800 CITY: LOS ANGELES STATE: CA ZIP: 90017 BUSINESS PHONE: 2132440461 POS EX 1 dposex.txt POST EFFECTIVE AMENDMENT TO FORM S-2 As Filed with the Securities and Exchange Commission on October 12, 2001 Registration No. 333-71494 ------------------------------------------------------------------------------- ------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 --------------- POST-EFFECTIVE AMENDMENT NO. 1 TO 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. [_] 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. [X] 333-71494 If delivery of the prospectus is expected to be made pursuant to Rule 434 of the Securities Act, please check the following box. [_] ------------------------------------------------------------------------------- ------------------------------------------------------------------------------- EXPLANATORY NOTE AND INCORPORATION BY REFERENCE This Post-Effective Amendment No. 1 to the Registration Statement on Form S- 2 consists solely of the filing of an exhibit to the Registration Statement (No. 333-71494) filed on October 12, 2001. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, Apex Mortgage Capital, Inc. certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-2 and has duly caused this Post- Effective Amendment No. 1 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Los Angeles, State of California, on October 12, 2001. APEX MORTGAGE CAPITAL, INC. By: /s/ Philip A. Barach ___________________________________ Philip A. Barach 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 --------- ----- ---- /s/ Philip A. Barach President, Chief Executive October 12, 2001 ____________________________________ Officer and Director Philip A. Barach * Chief Investment Officer and October 12, 2001 ____________________________________ Vice Chairman of the Board Jeffrey E. Gundlach of Directors * Interim Chief Financial October 12, 2001 ____________________________________ Officer and Controller David S. DeVito * Chairman of the Board of October 12, 2001 ____________________________________ Directors Marc I. Stern * Director October 12, 2001 ____________________________________ John C. Argue Director , 2001 ____________________________________ Carl C. Gregory, III Director , 2001 ____________________________________ Peter G. Allen Director , 2001 ____________________________________ John A. Gavin
*By: /s/ Philip A. Barach ___________________________ Attorney-in-Fact 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).
-------- * Previously filed. EX-5.1 3 dex51.txt OPINION EXHIBIT 5.1 [Ballard Spahr Andrews & Ingersoll, LLP] October 12, 2001 Apex Mortgage Capital, Inc. Suite 1800 865 South Figueroa Street Los Angeles, California 90017 Re: Apex Mortgage Capital, Inc., a Maryland corporation (the "Company") - a Registration Statement on Form S-2 pertaining to One Million Four Hundred Ninety-Five Thousand (1,495,000) 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 October 12, 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 "Bylaws"); BALLARD SPAHR ANDREWS & INGERSOLL, LLP Apex Mortgage Capital, Inc. October 12, 2001 Page 2 (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 September 5, 2001, which, among other things, authorized the issuance of the Shares (the "Directors' Resolutions"); (v) a certificate of Philip A. Barach, the President and Chief Executive 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, 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 and the related form of prospectus included therein, filed or to be filed with the Commission pursuant to the Act (the "Registration Statement"); (vii) a status certificate of the Department, dated October 11, 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 BALLARD SPAHR ANDREWS & INGERSOLL, LLP Apex Mortgage Capital, Inc. October 12, 2001 Page 3 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 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. BALLARD SPAHR ANDREWS & INGERSOLL, LLP Apex Mortgage Capital, Inc. October 12, 2001 Page 4 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 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. We consent to your filing this opinion as an exhibit to the 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