-----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, V/yEAPV+H1Ylsf+/hrGw7gmsV71rVZLcCuuhhfcynmyeQ1ForiO4gXp8jC1nRNF2 NFBNoASun2EidBTfoHlqMQ== 0001193125-03-031957.txt : 20030808 0001193125-03-031957.hdr.sgml : 20030808 20030808164524 ACCESSION NUMBER: 0001193125-03-031957 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20030808 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: AMERICAN HOME MORTGAGE HOLDINGS INC CENTRAL INDEX KEY: 0001089504 STANDARD INDUSTRIAL CLASSIFICATION: MORTGAGE BANKERS & LOAN CORRESPONDENTS [6162] IRS NUMBER: 134066303 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-57001 FILM NUMBER: 03832298 BUSINESS ADDRESS: STREET 1: 12 EAST 49TH STREET CITY: NEW YORK STATE: NY ZIP: 10017 BUSINESS PHONE: 2127558600 MAIL ADDRESS: STREET 1: 12 EAST 49TH CITY: NEW YORK STATE: NY ZIP: 10017 FILED BY: 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: SC 13D BUSINESS ADDRESS: STREET 1: 865 FIGUEROA STREET STREET 2: STE 1800 CITY: LOS ANGELES STATE: CA ZIP: 90017 BUSINESS PHONE: 2132440461 MAIL ADDRESS: STREET 1: 865 S. FIGUEROA STREET STREET 2: SUITE 1800 CITY: LOS ANGELES STATE: CA ZIP: 90017 SC 13D 1 dsc13d.txt SCHEDULE 13D UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 -------------- SCHEDULE 13D Under the Securities Exchange Act of 1934 American Home Mortgage Holdings, Inc. - -------------------------------------------------------------------------------- (Name of Issuer) Common Stock, par value $0.01 per share - -------------------------------------------------------------------------------- (Title of Class of Securities) Apex Mortgage Capital, Inc. 865 South Figueroa Street Los Angeles, California 90017 Telephone: (213) 244-0000 Copy to: Peter T. Healy, Esq. O'Melveny & Myers LLP 275 Battery Street, 26/th/ Floor San Francisco, California 94111 Telephone: (415) 984-8700 - -------------------------------------------------------------------------------- (Name, Address and Telephone number of Person Authorized to Receive Notices and Communications) 02660M108 - -------------------------------------------------------------------------------- (CUSIP Number) July 12, 2003 - -------------------------------------------------------------------------------- (Date of Event Which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of (S)(S)240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. [_] Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See (S)240.13d-7 for other parties to whom copies are to be sent. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). - ----------------------------- ------------------------- CUSIP NO. 02660M108 13D Page 2 of 7 pages - ----------------------------- ------------------------- ================================================================================ 1. NAME OF REPORTING PERSON; I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Apex Mortgage Capital, Inc. (I.R.S. Identification No. 95-4650863) - -------------------------------------------------------------------------------- CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP 2. (a) (b) - -------------------------------------------------------------------------------- 3. SEC USE ONLY - -------------------------------------------------------------------------------- 4. SOURCE OF FUNDS (SEE INSTRUCTIONS): N/A - -------------------------------------------------------------------------------- 5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) - -------------------------------------------------------------------------------- 6. CITIZENSHIP OR PLACE OF ORGANIZATION: Maryland - -------------------------------------------------------------------------------- NUMBER OF 7. SOLE VOTING POWER: None SHARES -------------------------------------------------------- BENEFICIALLY 8. SHARED VOTING POWER: 4,680,112 shares of Common OWNED BY Stock/1/ EACH -------------------------------------------------------- REPORTING PERSON 9. SOLE DISPOSITIVE POWER: None WITH -------------------------------------------------------- 10. SHARED DISPOSITIVE POWER: 4,632,735 shares of Common Stock/2/ - -------------------------------------------------------------------------------- 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 4,680,112 shares of Common Stock/1/ - -------------------------------------------------------------------------------- 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN SHARES* [_] - -------------------------------------------------------------------------------- 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11: 27.2%/3/ - -------------------------------------------------------------------------------- 14. TYPE OF REPORTING PERSON: CO ================================================================================ _________________ /1/ Includes: (i) 4,160,000 shares of common stock, par value $0.01 per share ("Common Stock"), of American Home Mortgage Holdings, Inc., a Delaware corporation ("American Home") held of record by Michael Strauss; (ii) 8,000 shares of Common Stock held of record by Nicholas R. Marfino, (iii) 5,000 shares of Common Stock held of record by Michael A. McManus, Jr., (iv) 16,667 shares of Common Stock held of record by C. Cathleen Raffaeli, (v) 16,667 shares of Common Stock held of record by Kenneth P. Slosser, and (vi) 473,778 shares of Common Stock held of record by John A. Johnston, each of which are subject to Voting Agreements dated July 12, 2003 by and between Apex and each respective American Home stockholder (each a "Voting Agreement" and collectively, the "Voting Agreements"). By virtue of the Voting Agreements, the shares of Common Stock, in (i) through (vi) above may be deemed to be subject to shared voting power by Apex with regard to the particular matters subject to the Voting Agreement. However, Apex expressly disclaims beneficial ownership of the shares of Common Stock described in this Footnote 1. /2/ Includes the shares of Common Stock described in (i)-(vi) in Footnote 1. By virtue of the Voting Agreements, (a) the shares of Common Stock, in (i) through (v) in Footnote 1 may be deemed to be subject to shared dispositive power by Apex, as such American Home stockholders may not dispose of their respective shares without Apex's consent (as described more fully in Item 4 below) until the Transactions have been approved by the stockholders of American Home or the Merger Agreement (as defined in Item 3 below) has been terminated (as described more fully in Item 4 below), and (b) the shares of Common Stock in (vi) in Footnote 1 may be deemed to be subject to shared dispositive power by Apex, as such American Home stockholder may not dispose of his respective shares without Apex's consent, except that Mr. Johnston has retained the right to sell or dispose of up to 10% of his shares of Common Stock (or 47,377 shares) without restriction. However, Apex expressly disclaims beneficial ownership of the shares of Common Stock described in this Footnote 2. /3/ Based solely on information provided by American Home, this percentage is calculated based on 17,210,545 shares of Common Stock issued and outstanding as of July 12, 2003. - ----------------------------- ------------------------- CUSIP NO. 02660M108 13D Page 3 of 7 pages - ----------------------------- ------------------------- Item 1. Security and Issuer. The class of securities to which this Schedule 13D relates is the common stock, par value $0.01 per share (the "Common Stock"), of American Home Mortgage Holdings, Inc., a Delaware corporation ("American Home"), whose principal executive offices are located at 520 Broadhollow Road, Melville, New York 11747. Item 2. Identity and Background (a) Apex Mortgage Capital, Inc., a Maryland corporation ("Apex"). (b) Apex's principal executive officers are located at 865 South Figueroa Street, Los Angeles, California 90017. (c) Apex is a financial services company that primarily acquires U.S. agency and other highly-rated, single-family, real estate adjustable-rate and fixed-rate mortgage related assets. The name, business address, present principal occupation or employment, the name and principal business of any corporation or other organization in which such employment is conducted and the citizenship of each director and executive officer of Apex is set forth in Schedule A attached hereto and incorporated herein by reference. (d)-(e) During the last five years, neither Apex nor, to the best of Apex's knowledge, any of the individuals referred to in Schedule A (a) has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors), or (b) was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. Item 3. Source and Amount of Funds or Other Consideration Used. Apex and American Home, together with American Home Mortgage Investment Corp. (formerly known as AHM New Holdco, Inc.), a wholly-owned subsidiary of American Home ("AHM Investment Corp."), entered into an Agreement and Plan of Merger dated as of July 12, 2003 (the "Merger Agreement"). Pursuant to the Merger Agreement and related transactions, (i) American Home will be merged with and into AHM Merger Sub, Inc., a wholly-owned subsidiary of AHM Investment Corp., with American Home as the surviving corporation (the "Reorganization"), (ii) immediately after the Reorganization, Apex will merge with and into AHM Investment Corp., with AHM Investment Corp. as the surviving corporation (the "Merger"), such that American Home will be a wholly-owned subsidiary of AHM Investment Corp. and AHM Investment Corp. will become the new parent company. Pursuant to the Reorganization and the Merger, (a) American Home stockholders will receive one share of AHM Investment Corp. common stock in exchange for each share of Common Stock they own and (b) Apex stockholders will receive a number of shares of AHM Investment Corp. common stock equal to 107.5% of Apex's net book value per share divided by the average of the daily volume-weighted averages of the trading prices of the Common Stock for the ten trading days prior to and including the day before the closing of the Merger, subject to certain adjustments described in the Merger Agreement, in exchange for each share of Apex common stock they own. In order to facilitate the completion of the Merger and the other transactions contemplated by the Merger Agreement and in consideration thereof, Apex entered into voting agreements (each a "Voting Agreement" and collectively, the "Voting Agreements"), each dated as of July 12, 2003, with each of the directors of American Home as listed on Schedule B attached hereto and incorporated herein by reference (collectively, the "American Home Stockholders"), whereby each American Home Stockholder generally agrees to hold and vote all of the shares of Common Stock beneficially owned by them in favor of the transactions contemplated by the Merger Agreement, including the Reorganization, the issuance of - -------------------------- ------------------------- CUSIP NO. 02660M108 13D Page 4 of 7 pages - -------------------------- ------------------------- shares of AHM Investment Corp. common stock to Apex stockholders in the Merger and any other action required in furtherance thereof (collectively, the "Transactions"). The provisions of each of the Voting Agreements are substantially similar except for the parties and the number of shares subject to such agreements, and except that John A. Johnston has retained the right to sell or dispose of up to 10% of his shares of Common Stock (i.e., up to 47,377 shares) without restriction. The name of each American Home Stockholder and the number of outstanding shares of Common Stock beneficially owned by each American Home Stockholder and subject to the Voting Agreements are set forth on Schedule B attached hereto and incorporated herein by reference. Apex did not pay additional consideration to any American Home Stockholder in connection with the execution and delivery of the Voting Agreements. References to, and descriptions of, the Merger Agreement and the Voting Agreements as set forth above in this Item 3 are qualified in their entirety by reference to the copies of the Merger Agreement and the form of Voting Agreement included as Exhibits 1 and 2, respectively, to this Schedule 13D, and are incorporated in this Item 3 in their entirety where such references and descriptions appear. Item 4. Purpose of Transaction (a)-(b) The information set forth or incorporated by reference in Items 2 and 3 is hereby incorporated herein by reference. The Merger is subject to customary closing conditions, including the approval of the Merger by Apex's stockholders and the approval of the Transactions by American Home's stockholders, the receipt of any required regulatory approvals, the completion of the Reorganization, and the satisfaction or waiver of certain other conditions as more fully described in the Merger Agreement. Pursuant to the terms of the Voting Agreements, each American Home Stockholder has agreed, among other things, (i) that, unless otherwise agreed to by Apex, such American Home Stockholder shall not transfer any of their shares of Common Stock that are subject to the Voting Agreements or deposit such shares or any interest therein into a voting trust or enter into a voting agreement or other arrangement with respect to such shares; provided, however, that Jack A. Johnston has retained the right to sell or dispose of up to 10% of his shares of Common Stock (i.e., up to 47,377 shares) prior to the special meeting of stockholders of American Home called to approve the Transactions. The foregoing restrictions are effective through and including the date of the earlier of (x) the approval of the Merger by American Home's stockholders or (y) the termination of the Merger Agreement in accordance with Article VII I thereof; (ii) that such American Home Stockholder shall, at each American Home stockholder meeting (or adjournment or postponement) called with respect to any of the matters set forth below and on every action or approval by written consent of American Home stockholders with respect to any of the following, (and in any other circumstances upon which a vote, consent or other approval with respect to any of the following is sought, solely in his or her capacity as a American Home stockholder), take each and every action and accomplish each and every formality as is necessary to participate in the meetings (if applicable) and vote (or cause to be voted) all of such American Home Stockholder's shares subject to their respective Voting Agreement and each interest therein: (A) in favor of the Transactions and, upon the request of Apex, any actions required in furtherance thereof, including, without limitation, any proposal to permit American Home to adjourn such meeting; - -------------------------- ------------------------- CUSIP NO. 02660M108 13D Page 5 of 7 pages - -------------------------- ------------------------- (B) against the following actions (other than the Transactions), to the extent that such actions require such stockholder's approval or in relation to which such approval is sought: (i) a reorganization, recapitalization, dissolution or liquidation of American Home; and (ii) (A) any change in the present capitalization of American Home or any amendment of the Certificate of Incorporation or similar governing document of American Home, (B) any other change in the corporate structure or business of American Home; or (C) any other action which, in the case of each of the matters referred to in clauses (A) and (B) above, is intended, or could reasonably be expected, to impede, interfere with, delay, postpone, discourage or adversely affect the consummation of the Transactions or the transactions contemplated by their respective Voting Agreement; and (C) in favor of each other matter relating to the consummation of the Transactions. The Voting Agreements terminate on the earlier of (i) the termination of the Merger Agreement in accordance with Article VIII thereof, and (ii) the consummation of the Merger. The foregoing description of the Voting Agreements is qualified in its entirety by reference to the full text of such agreements; a copy of the form of the Voting Agreements is attached hereto as Exhibit 2 and incorporated by reference herein. The name of each American Home Stockholder and the number of outstanding shares of Common Stock beneficially owned by each American Home Stockholder and subject to the Voting Agreements are set forth on Schedule B attached hereto and incorporated herein by reference. Apex does not have any right to dispose (or direct the disposition of) any shares of Common Stock pursuant to the Voting Agreements, except for the restrictions on transfers of the shares of Common Stock held by each American Home Stockholder, which Apex may waive in its discretion. Accordingly, Apex expressly disclaims beneficial ownership of all such shares. (c) Not applicable. (d) Upon completion of the Reorganization described in Item 3 above, the officers and directors of American Home shall be the officers and directors of the surviving corporation of the merger between American Home and AHM Merger Sub, Inc. (e) Other than as a result of the Reorganization, not applicable. (f) Other than as a result of the Reorganization or the Merger, not applicable. (g) Other than as a result of the Reorganization or the Merger, not applicable. (h)-(i) Not applicable. (j) Other than as described above, Apex currently has no plan or proposals which relate to, or may result in, any of the matters listed in Items 4(a) - (i) of this Schedule 13D (although Apex reserves the right to develop such plans). - -------------------------- ------------------------- CUSIP NO. 02660M108 13D Page 6 of 7 pages - -------------------------- ------------------------- References to, and descriptions of, the Merger Agreement and the Voting Agreements as set forth above in this Item 4 are qualified in their entirety by reference to the copies of the Merger Agreement and the form of Voting Agreement included as Exhibits 1 and 2, respectively, to this Schedule 13D, and are incorporated in this Item 4 in their entirety where such references and descriptions appear. Capitalized terms used in Item 4 but not otherwise defined herein have the respective meanings assigned to them in the Merger Agreement. Item 5. Interest in Securities of the Issuer. The information set forth or incorporated by reference in Items 2, 3 and 4 is hereby incorporated herein by reference. (a)-(b) As a result of the Voting Agreements, Apex may be deemed to be the beneficial owner of all 4,680,112 shares of Common Stock disclosed in this Schedule 13D. To the knowledge of Apex, such Common Stock constitutes approximately 27.2% of the issued and outstanding shares of Common Stock as of July 12, 2003. While Apex may be deemed to have the shared power to vote of these shares of Common Stock with respect to the matters described in Item 4 and the shared right to dispose of such shares as described in Item 4, Apex (i) is not entitled to any rights as a stockholder of American Home and (ii) disclaims beneficial ownership of all such shares. Set forth in Schedule B are the names of the stockholders of American Home that have entered into the Voting Agreements with Apex and their present principal occupation or employment, including the name, principal business and address of any corporation or other organization in which such employment is conducted, to Apex's knowledge. (c) Neither Apex nor, to the knowledge of Apex, any person named in Schedule A, has effected any transaction in Common Stock during the past 60 days. (d)-(e) Not Applicable. References to, and descriptions of, the Merger Agreement and the Voting Agreements as set forth above in this Item 5 are qualified in their entirety by reference to the copies of the Merger Agreement and the form of Voting Agreement included as Exhibits 1 and 2, respectively, to this Schedule 13D, and are incorporated in this Item 5 in their entirety where such references and descriptions appear. Item 6. Contracts, Arrangements, Understandings or Relationship With Respect to Securities of the Issuer. As described in Items 3 and 4 above, as an inducement to Apex to enter into the Merger Agreement, Apex entered into the Voting Agreements with the American Home Stockholders whereby the American Home Stockholders agreed to hold and vote all of the shares of American Home common stock beneficially owned by them in favor of the approval of the Transactions. The American Home Stockholders and the number of shares of American Home common stock beneficially owned by each of them is set forth in Schedule B attached hereto which is incorporated herein by reference. The foregoing summary of the Voting Agreement is qualified in its entirety by reference to the copy of the form of Voting Agreement included as Exhibit 2 to this Schedule 13D and incorporated herein in its entirety by reference. - ------------------------- ------------------------- CUSIP NO. 02660M108 13D Page 7 of 7 pages - ------------------------- ------------------------- Item 7. Material to be Filed as Exhibits. The following documents are filed as exhibits: 1 Agreement and Plan of Merger dated as of July 12, 2003, by and among American Home Mortgage Holdings, Inc., American Home Mortgage Investment Corp (formerly called AHM New Holdco, Inc.) and Apex Mortgage Capital, Inc. (previously filed as Exhibit 2.1 to Apex's Form 8-K filed with the SEC on July 15, 2003 and incorporated by reference herein). 2 Form of Voting Agreement by and between Apex Mortgage Capital, Inc. and certain stockholders of American Home Mortgage Holdings, Inc. SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. APEX MORTGAGE CAPITAL, INC. Date: August 8, 2003 By: /s/ Philip Barach ----------------------------------------- Philip Barach Its: President and Chief Executive Officer S-1 Schedule A EXECUTIVE OFFICERS AND DIRECTORS OF APEX MORTGAGE CAPITAL, INC. The following sets forth the name and present principal occupation or employment, and the name, principal business and address of any corporation or other organization in which such employment is conducted, of each director and executive officer of Apex. Unless otherwise indicated below, each such person is a United States citizen, and the business address of each such person is 865 South Figueroa Street, Los Angeles, California 90017. BOARD OF DIRECTORS Name and Title Present Principal Occupation - -------------- ---------------------------- Marc I. Stern, Chairman of the Board President and director of The TCW Group, Inc. Philip A. Barach, Director President, Chief Executive Officer and Director of Apex Peter G. Allen, Director President of Haven Capital Samuel P. Bell, Director President of Los Angeles Business Advisors Hon. John A. Gavin, Director Chairman of Gamma Holdings Carl C. Gregory, III, Director President and Chief Executive Officer of Encore Capital Group, Inc. (previously named MCM Capital Group, Inc.) Jeffrey E. Gundlach, Director Chief Investment Officer and Vice Chairman of Apex EXECUTIVE OFFICERS WHO ARE NOT DIRECTORS Name Present Principal Occupation - ---- ---------------------------- Joel A. Damiani Senior Vice President of Apex David S. DeVito Chief Financial Officer and Controller of Apex Joseph J. Galligan Senior Vice President of Apex Michael E. Cahill Secretary of Apex Philip K. Holl Assistant Secretary of Apex Schedule B AMERICAN HOME STOCKHOLDERS The following sets forth, to Apex's knowledge and based upon publicly available information, the name and present principal occupation or employment of each American Home Stockholder. Except as indicated below, to Apex's knowledge, the business address of each such person is c/o American Home Mortgage Holdings, Inc., 520 Broadhollow Road, Melville, New York 11747.
Name and Title Shares Subject to Voting Agreements - -------------- ----------------------------------- Michael Strauss, Chairman of the Board of Directors, Chief 4,160,000 Executive Officer and President of American Home Nicholas R. Marfino, Vice President of Adirondack 8,000 Electronic Markets, LLC Michael A. McManus, Jr., President and Chief Executive 5,000 Officer of Misonix, Inc. C. Cathleen Raffaeli, Managing Partner of the Hamilton 16,667 White Group, LLC, a financial advisory firm Kenneth P. Slosser, Managing Director of Investment 16,667 Banking and Corporate Finance Department of Friedman, Billings, Ramsey & Co., Inc., an investment bank that has, in the past, provided financial advisory services to American Home John A. Johnston, Director, President of Western Division 473,778/1/ of American Home
___________ /1/ Pursuant to the voting Agreement between Apex and John A. Johnston, Mr. Johnston has retained the right to sell or dispose of up to 10% of his common stock (or 47,337 shares) without restriction. EX-99.2 3 dex992.txt FORM OF VOTING AGREEEMENT, DATED AS OF JULY 12, 2003 FORM OF AHM VOTING AGREEMENT THIS AHM VOTING AGREEMENT (this "Agreement") is made and entered into as of July [__], 2003, by and between Apex Mortgage Capital, Inc., a Maryland corporation ("Company"), and the undersigned stockholder ("AHM Stockholder") of American Home Mortgage Holdings, Inc., a Delaware corporation ("AHM"). THE PARTIES TO THIS AGREEMENT enter into this Agreement on the basis of the following facts, intentions and understandings: A. As of the date hereof, AHM Stockholder has full title to and is entitled to dispose of (or to direct the disposition of) and/or vote (or to direct the voting of) the number of shares of common stock, par value $0.01 per share, of AHM ("AHM Common Stock"), set forth opposite such AHM Stockholder's name on Schedule I attached hereto (such shares of AHM Common Stock are collectively referred to herein as the "Subject Shares"). B. The parties hereto acknowledge that as of the date hereof: (i) the Company's Board of Directors, upon the recommendation of a duly authorized special committee of independent directors, and the respective Boards of Directors of AHM and New Holdco (as defined below) have each approved, and deem it advisable and in the best interest of their respective stockholders, to consummate the acquisition of the Company by New Holdco upon the terms and subject to the conditions set forth in that certain Agreement and Plan of Merger dated as of July [__], 2003 (as the same may be amended from time to time, the "Merger Agreement"; capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Merger Agreement), by and among AHM, New Holdco, a Maryland corporation and a wholly-owned subsidiary of AHM ("New Holdco"), and the Company; and (ii) in furtherance of the acquisition by New Holdco of the Company, the respective Boards of Directors of the Company, AHM, and New Holdco have each approved the Merger Agreement and the merger of the Company with and into New Holdco, with New Holdco being the surviving corporation in such merger (the "Merger"), and AHM, as the sole stockholder of New Holdco, has approved the Merger (the transactions contemplated by the Merger Agreement shall be hereinafter referred to as the "Transactions"). C. The AHM Stockholder in order to induce Company to enter into the Merger Agreement and consummate the Merger and the Transactions, and in consideration therefor, has agreed to enter into this Agreement. NOW, THEREFORE, in consideration of the representations, warranties, covenants and agreements contained herein, the parties agree as follows: ARTICLE I TRANSFER AND VOTING OF SUBJECT SHARES 1.1 Transfer of Subject Shares. Except as may otherwise be agreed upon by Company in writing and as contemplated by the terms of this Agreement, from the date hereof through and including the date of the AHM Stockholder Approval (as defined in the Merger Agreement), the AHM Stockholder shall not, directly or indirectly, (a) transfer (which term shall include, without limitation, any sale, gift, pledge, encumbrance or other disposition), or consent to any transfer of, any or all of the Subject Shares or any interest therein or any voting power in relation thereto, (b) deposit the Subject Shares or any interest therein into a voting trust or enter into a voting agreement or arrangement with respect to the Subject Shares or grant any proxy, power of attorney or other authorization in or with respect thereto, or (c) enter into any contract, option or other agreement or understanding with respect to any such transfer of any or all of the Subject Shares or any interest therein or any voting power in relation thereto. 1.2 Agreement to Vote the Subject Shares. The AHM Stockholder shall, at each and every meeting of the stockholders of AHM called with respect to any of the following, and at any adjournment or postponement thereof, and on every action or approval by written consent of the stockholders of AHM with respect to any of the following, and in any other circumstances upon which a vote, consent or other approval with respect to any of the following is sought, solely in its capacity as a stockholder of AHM, take each and every action and accomplish each and every formality as is necessary to participate in the meetings (if applicable) and vote (or cause to be voted) all of the Subject Shares and each interest therein: (a) in favor of the Merger, the Merger Agreement and the Transactions and, upon the request of Company, any actions required in furtherance thereof and hereof, including, without limitation, any proposal to permit AHM to adjourn such meeting (an "Adjournment Proposal"); (b) against the following actions (other than the Merger and the Transactions), to the extent that such actions require the AHM Stockholder's approval or in relation to which such approval is sought: (i) a reorganization, recapitalization, dissolution or liquidation of AHM; and (ii) (A) any change in the present capitalization of AHM or any amendment of AHM's certificate of incorporation or New Holdco's charter or similar governing document of AHM or New Holdco, (B) any other change in the corporate structure or business of AHM, or (C) any other action which, in the case of each of the matters referred to in clauses (A) and (B) above, is intended, or could reasonably be expected, to impede, interfere with, delay, postpone, discourage or adversely affect the consummation of the Merger, including, without limitation, an Acquisition Proposal (as defined in the Merger Agreement), the Transactions or the other transactions contemplated by this Agreement (the actions described in clauses (i) and (ii) above shall be referred to herein, individually, as an "Alternative Proposal"); and (c) in favor of each other matter relating to, and in favor of, the consummation of the Transactions. 1.3 Prior Proxies. (a) AHM Stockholder represents that any proxies heretofore given in respect of the Subject Shares are revocable, and that any such proxies are hereby revoked or will be revoked by appropriate notice (or other instrument) prior to or concurrently with the execution and delivery of this Agreement. (b) AHM Stockholder recognizes that the Merger will be of benefit to the AHM Stockholder and acknowledges that Company is incurring costs and expenses in reliance 2 on the representations, warranties and covenants of AHM Stockholder set forth in this Agreement. ARTICLE II REPRESENTATIONS AND WARRANTIES OF AHM STOCKHOLDER AHM Stockholder hereby represents and warrants to Company as follows: 2.1 Ownership of Subject Shares. On the date hereof, AHM Stockholder owns, directly or indirectly, and has the power to direct the voting of, the Subject Shares set forth next to AHM Stockholder's name set forth on Schedule I attached hereto. On the date hereof, the Subject Shares constitute all of the shares of voting capital stock of AHM owned of record or otherwise by AHM Stockholder or as to which such AHM Stockholder has the power to direct the voting of such shares. AHM Stockholder has sole voting power and sole power to issue instructions with respect to the matters set forth in Article 1 hereof, sole power of disposition, sole power of conversion, sole power (if any) to demand, appraisal or rescission rights, and sole power to agree to all of the matters set forth in this Agreement, in each case with respect to all of AHM Stockholder's Subject Shares, with no limitations, qualifications or restrictions on such rights, subject to applicable securities laws and the terms of this Agreement. On the date of the AHM Stockholders Meeting and on the Closing Date (as defined in the Merger Agreement), AHM Stockholder owns or will own, directly or indirectly, and will have the power to direct the voting of, at least the number of Subject Shares indicated on Schedule I attached hereto. 2.2 Power; Binding Agreement. AHM Stockholder has all requisite powers and authority to enter into and perform all of its obligations under this Agreement. The execution, delivery and performance of this Agreement by AHM Stockholder shall not violate any agreement to which AHM Stockholder is a party, including, without limitation, any voting agreement, proxy arrangement, pledge agreement, stockholders agreement, voting trust or trust agreement. This Agreement has been duly and validly executed and delivered by AHM Stockholder, and constitutes a legally valid and binding obligation of AHM Stockholder, enforceable against AHM Stockholder in accordance with its terms, except as may be limited by (a) applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors' rights generally, or (b) general principles of equity relating to enforceability, whether considered in a proceeding at law or in equity. There is no beneficiary or holder of a voting trust certificate or other interest of any trust of which AHM Stockholder is a trustee whose consent is required for the execution and delivery of this Agreement or the compliance by AHM Stockholder with the terms hereof. If AHM Stockholder is a natural person and is married, and the Subject Shares constitute community property or AHM Stockholder otherwise needs spousal or other similar approval for this Agreement to be legal, valid and binding, this Agreement will be duly authorized, executed and delivered by AHM Stockholder's spouse ("Spouse") prior to Closing, and shall constitute a valid and binding agreement of Spouse as of the date first set forth above, enforceable against such Spouse in accordance with its terms. 2.3 No Conflicts. Neither the execution and delivery of this Agreement by AHM Stockholder nor the compliance by AHM Stockholder with any of the provisions hereof shall (a) conflict with or violate any agreement, law, rule, regulation, order, judgment or decision or 3 other instrument binding upon AHM Stockholder or any of AHM Stockholder's properties or assets, nor require any consent, notification, regulatory filing or approval which has not been obtained, (b) result in any violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give to any third party a right of termination, cancellation, material modification or acceleration) under any of the terms, conditions or provisions of any note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation to which AHM Stockholder is a party or by which AHM Stockholder or any of its properties or assets may be bound or affected, or (c) if AHM Stockholder is other than a natural person, conflict with, or result in any breach of, any organizational documents applicable to AHM Stockholder. 2.4 No Liens. Except as established hereby, the Subject Shares (with the exception of the Subject Shares which are not owned by AHM Stockholder, but for which AHM Stockholder exercises the relevant voting power) are now and, at all times during the term hereof will be, held by AHM Stockholder, or by a nominee or custodian for the benefit of AHM Stockholder, free and clear of all liens, claims, security interests, proxies, voting trusts or agreements, understandings or arrangements or any other encumbrances whatsoever. 2.5 No Solicitation. AHM Stockholder hereby agrees, in AHM Stockholder's capacity as a stockholder of AHM, that neither AHM Stockholder nor any of AHM Stockholder's affiliates or subsidiaries, if applicable, shall (and AHM Stockholder shall cause AHM Stockholder's officers, directors, employees, investment bankers, consultants, attorneys, accountants, agents, advisors and representatives, if applicable, not to), directly or indirectly, take any action to solicit, initiate, encourage, facilitate, participate in or initiate discussions or negotiations with, or provide any information to, any person (other than the Company or any of its affiliates or representatives) concerning any Alternative Proposal. 2.6 Accuracy of Representations. The representations and warranties contained in this Agreement are accurate in all respects as of the date of this Agreement and will be accurate in all respects at all times until termination of this Agreement. ARTICLE III COVENANTS 3.1 Further Assurances. From time to time and without any additional consideration, upon the request of the Company, AHM Stockholder shall execute and deliver to the Company such additional documents with respect to the Subject Shares as the Company may reasonably request in connection with AHM Stockholder's obligations under this Agreement. 3.2 No Inconsistent Actions. AHM Stockholder shall not, and, if AHM Stockholder is not a natural person, nor shall it permit any of its directors, officers, partners, employees or agents or any investment banker, attorney or other adviser or representative of AHM Stockholder to, directly or indirectly, take any action that would in any way restrict, limit or interfere with the performance of AHM Stockholder's obligations hereunder or the transactions contemplated hereby or by the Merger Agreement, including, without limitation, the Transactions, or which shall cause any of the representations set forth in Article II of this Agreement to become untrue. 4 3.3 Reasonable Efforts. Subject to the terms and conditions of this Agreement, the Company agrees to use its reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement. ARTICLE IV TERMINATION Other than Article V hereof (which shall survive in any event), this Agreement and the representations, warranties, covenants and agreements contained herein or granted pursuant hereto shall automatically terminate upon the earlier to occur of (i) the termination of the Merger Agreement in accordance with Article VIII thereof, and (ii) the consummation of the Merger. Upon any termination of this Agreement, this Agreement shall thereupon become void and of no further force and effect, and there shall be no liability in respect of this Agreement or of any transactions contemplated hereby or by the Merger Agreement on the part of any party hereto or, if AHM Stockholder is not a natural person, any of its directors, officers, partners, stockholders, employees, agents, advisors, representatives or affiliates; provided, however, that nothing herein shall relieve any party from any liability for such party's willful breach of this Agreement; and provided further, that nothing herein shall limit, restrict, impair, amend or otherwise modify the rights, remedies, obligations or liabilities of any person under any other contract or agreement, including without limitation, the Merger Agreement. ARTICLE V MISCELLANEOUS 5.1 Specific Performance. Each party hereto recognizes and agrees that, if for any reason any of the provisions of this Agreement are not performed by the other parties in accordance with their specific terms or are otherwise breached, immediate and irreparable harm or injury would be caused to the non-breaching parties for which money damages would not be an adequate remedy. Accordingly, the parties agree that, in addition to any other available remedies, the non-breaching parties shall be entitled to an injunction restraining any violation or threatened violation of the provisions of this Agreement without the necessity of the non-breaching parties posting a bond or other form of security. In the event that any action should be brought in equity to enforce the provisions of this Agreement, the breaching party will not allege, and the breaching party hereby waives the defense, that there is an adequate remedy at law. 5.2 Severability. Any term or provision of this Agreement which is invalid, illegal or unenforceable in any jurisdiction by any rule or law or public policy shall, as to that jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without rendering invalid, illegal or unenforceable the remaining terms and provisions of this Agreement or affecting the validity, legality or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction. Without limiting the foregoing, upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible to the fullest extent permitted by applicable law in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the fullest extent possible. 5 5.3 Entire Agreement; Amendments. This Agreement constitutes the entire agreement of the parties and supersedes all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof. This Agreement may not be amended except by an instrument in writing signed by each of the parties against whom such amendment is sought to be enforced. 5.4 Assignment. Neither this Agreement nor any of the rights, interests or obligations under this Agreement shall be assigned, in whole or in part, by operation of law or otherwise by either of the parties without the prior written consent of the other party. Subject to the preceding sentence, this Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the parties and their respective successors and assigns. 5.5 Headings. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. 5.6 Notices. All notices, requests, claims, demands and other communications under this Agreement shall be in writing and shall be deemed given if delivered personally, sent by express courier (providing proof of delivery) or communicated by confirmed facsimile to the parties at the following addresses (or at such other address for a party as shall be specified by like notice): (a) if to AHM Stockholder, to the addresses set forth next to AHM Stockholder's name on Schedule II attached hereto, with a copy to: Cadwalader, Wickersham & Taft LLP 100 Maiden Lane New York, New York 10038 Facsimile: (212) 504-6666 Attention: Louis J. Bevilacqua, Esq. and (b) if to the Company, to: Apex Mortgage Capital, Inc. 865 South Figueroa Street, Suite 1800 Los Angeles, California 90017 Facsimile: (213) 488-3366 Attention: President and Chief Executive Officer with a copy to: O'Melveny & Myers LLP 275 Battery Street, Suite 2600 San Francisco, California 94111-3305 Facsimile: (415) 984-8701 6 Attention: Peter T. Healy, Esq. 5.7 Governing Law; Consent to Jurisdiction; Waiver of Trial by Jury. (a) This Agreement and the transactions contemplated hereby, and all disputes between the parties under or related to this Agreement or the facts and circumstances leading to its execution, whether in contract, tort or otherwise, shall be governed by and construed in accordance with the laws of the State of New York, regardless of the laws that might otherwise govern under applicable principles of conflicts of law thereof. (b) Each of the parties hereto irrevocably agrees that any legal action or proceeding with respect to this Agreement or for recognition and enforcement of any judgment in respect hereof brought by any party hereto or its successors and assigns may be brought and determined in the state courts located in New York County, New York or in the United States District Court for the Southern District of New York, in each case having subject matter jurisdiction, and each of the parties hereto hereby irrevocably submits with regard to any such action or proceeding for itself and in respect to its property, generally and unconditionally, to the nonexclusive jurisdiction of the aforesaid courts. By the execution and delivery of this Agreement, AHM Stockholder appoints Cadwalader, Wickersham & Taft LLP, 100 Maiden Lane, New York, New York 10038, Facsimile: (212) 504-6666, Attention: Louis J. Bevilacqua, Esq. (or at such other place within the State of New York as may be designated for such purpose), as its agent upon which process may be served in any such legal action or proceeding. Service of process upon such agent, together with notice of such service given to the Company in the manner specified in Section 5.6 hereof, shall be deemed in every respect effective service of process upon AHM Stockholder in any legal action or proceeding. Nothing herein shall in any way be deemed to limit the ability of the Company to serve any writs, process or summons in any other manner permitted by applicable law or order or to obtain jurisdiction over AHM Stockholder in such other jurisdictions and in such manner as may be permitted by applicable law or order. Each of the parties hereto hereby irrevocably waives, and agrees not to assert, by way of motion, as a defense or counterclaim or otherwise, in any action or proceeding with respect to this Agreement, (a) any claim that it is not personally subject to the jurisdiction of the above-named courts for any reason other than the failure to serve process in accordance with this Section 5.7, (b) that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (c) to the fullest extent permitted by applicable law or order, that (i) the suit, action or proceeding in any such court is brought in an inconvenient forum, (ii) the venue of such suit, action or proceeding is improper, and (iii) this Agreement, or the subject matter hereof, may not be enforced in or by such courts. Notwithstanding anything contained herein to the contrary, the Company understands and agrees that this Section 5.7 is not intended to and shall not be deemed to be a consent by AHM Stockholder to jurisdiction for any purpose other than the limited purpose of enforcing this Agreement in accordance with its terms. (c) EACH PARTY TO THIS AGREEMENT WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A JURY TRIAL IN RESPECT OF ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT. 7 5.8 Counterparts; Effectiveness. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties. 5.9 Directors' Fiduciary Duties. AHM Stockholder signs solely in his, her or its capacity as the party entitled to dispose of or vote the Subject Shares. Notwithstanding anything herein to the contrary, nothing set forth herein shall in any way restrict any director, officer or employee in the exercise of his or her fiduciary or other duties as a director, officer or employee of AHM, provided the foregoing does not allow AHM Stockholder to breach this Agreement. [Signature page follows.] 8 IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be duly executed as of the date first written above. "COMPANY" APEX MORTGAGE CAPITAL, INC., a Maryland corporation By:_______________________________ Name:_____________________________ Its:______________________________ "AHM STOCKHOLDER" __________________________________ Name:_____________________________ "SPOUSE" I hereby agree to be bound by the terms herein as to any interest, whether as community property or otherwise, that I may have in the Subject Shares. ___________________________________________ Name:______________________________________ [SIGNATURE PAGE TO AHM VOTING AGREEMENT] S-1 SCHEDULE I AHM STOCKHOLDER - -------------------------------------------------------------------------------- Number of Shares Subject to AHM Stockholder This Agreement - -------------------------------------------------------------------------------- [___________] [________] - -------------------------------------------------------------------------------- Schedule I SCHEDULE II NOTICES - -------------------------------------------------------------------------------- AHM Stockholder Notice To: With a Copy To: - -------------------------------------------------------------------------------- [___________] [____________] Cadwalader, Wickersham & Taft LLP 100 Maiden Lane New York, New York 10038 Facsimile: (212) 504-6666 Attention: Louis J. Bevilacqua, Esq. - -------------------------------------------------------------------------------- Schedule II -----END PRIVACY-ENHANCED MESSAGE-----