-----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, IXwyqThIkC/W68TTtzOxeQRkhpjooHK9oY8AcHSG7srxls4HpQwHIw1CIPbvSL6U rehBB8JyqOO0hEJ/e0sB6Q== 0000902595-99-000263.txt : 19991229 0000902595-99-000263.hdr.sgml : 19991229 ACCESSION NUMBER: 0000902595-99-000263 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19991228 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: IMPAC COMMERCIAL HOLDINGS INC CENTRAL INDEX KEY: 0001036615 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 330745075 STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: SEC FILE NUMBER: 005-51447 FILM NUMBER: 99781874 BUSINESS ADDRESS: STREET 1: 1301 AVENUE OF AMERICAS STREET 2: 42ND FLOOR CITY: NEW YORK STATE: NY ZIP: 10019 BUSINESS PHONE: 2127986100 MAIL ADDRESS: STREET 1: 1301 AVENUE OF AMERICAS STREET 2: 42ND FLOOR CITY: NEW YORK STATE: NY ZIP: 10019 FORMER COMPANY: FORMER CONFORMED NAME: IMH COMMERCIAL HOLDINGS INC DATE OF NAME CHANGE: 19970728 FORMER COMPANY: FORMER CONFORMED NAME: IMPERIAL CREDIT COMMERCIAL HOLDINGS INC DATE OF NAME CHANGE: 19970728 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: TCW GROUP INC CENTRAL INDEX KEY: 0000850401 STANDARD INDUSTRIAL CLASSIFICATION: [] FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 865 SOUTH FIGUEROA ST CITY: LOS ANGELES STATE: CA ZIP: 90017 MAIL ADDRESS: STREET 2: 865 SOUTH FIGUEROA STREET CITY: LOS ANGELES STATE: CA ZIP: 90017 SC 13D/A 1 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 __________ SCHEDULE 13D (Rule 13d-101) INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a) (Amendment No. 4) Impac Commercial Holdings, Inc. ------------------------------- (Name of Issuer) Common Stock $0.01 par value ---------------------------- (Title of Class of Securities) 44968J 10 6 (CUSIP Number) Daniel K. Osborne Executive Vice President, Chief Operating Officer and Chief Financial Officer Apex Mortgage Capital, Inc. 865 South Figueroa Street, Suite, 1800 Los Angeles, California 90017 (213) 244-0000 ----------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) December 27, 1999 (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 Rule 13d-1(e), 13d-1(f) or 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 Rule 13d-7(b) for other parties to whom copies are to be sent. (Continued on following pages) (Page 1 of 7 Pages) CUSIP No. 44968J 10 6 13 D Page 2 of 7 Pages 1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY) Apex Mortgage Capital, Inc. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [x] (b) [ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) 6 CITIZENSHIP OR PLACE OF ORGANIZATION Maryland NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: 7 SOLE VOTING POWER 0 8 SHARED VOTING POWER 627,300 9 SOLE DISPOSITIVE POWER 0 10 SHARED DISPOSITIVE POWER 627,300 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 627,300 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 7.5% 14 TYPE OF REPORTING PERSON CO CUSIP No. 44968J 10 6 13 D Page 3 of 7 Pages 1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY) The TCW Group, Inc. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [x] (b) [ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS Not applicable 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) 6 CITIZENSHIP OR PLACE OF ORGANIZATION Nevada NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: 7 SOLE VOTING POWER 0 8 SHARED VOTING POWER 627,300 9 SOLE DISPOSITIVE POWER 0 10 SHARED DISPOSITIVE POWER 627,300 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 627,300 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 7.5% 14 TYPE OF REPORTING PERSON HC, CO CUSIP No. 44968J 10 6 13D Page 4 of 7 Pages 1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY) Robert A. Day 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [x] 3 SEC USE ONLY 4 SOURCE OF FUNDS Not applicable 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) 6 CITIZENSHIP OR PLACE OF ORGANIZATION USA NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: 7 SOLE VOTING POWER 627,300 8 SHARED VOTING POWER 0 9 SOLE DISPOSITIVE POWER 627,300 10 SHARED DISPOSITIVE POWER 0 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 627,300 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 7.5% 14 TYPE OF REPORTING PERSON IN, HC AMENDMENT NO. 4 TO SCHEDULE 13D Reference is made to the Schedule 13D originally filed on September 7, 1999, as amended by Amendment No. 1 thereto filed on September 8, 1999, Amendment No. 2 thereto filed on September 23, 1999 and Amendment No. 3 thereto filed on October 18, 1999, by Apex Mortgage Capital, Inc., a Maryland corporation ("AXM"), The TCW Group, Inc., a Nevada corporation ("TCWG"), and Robert A. Day, an individual (collectively, the "Reporting Persons"), with respect to the Common Stock, $.01 par value per share ("Common Stock"), of Impac Commercial Holdings, Inc. (the "Issuer"). ITEM 4. PURPOSE OF TRANSACTIONS On August 5, 1999, the Issuer announced an agreement to merge with and into AMRESCO Capital Trust ("AMCT"), an externally managed Texas real estate investment trust. In such merger, shareholders of the Issuer would receive 0.661 of a share of AMCT for each share of Common Stock (the "Merger Consideration"). AXM continues to believe that the Merger Consideration considerably undervalues the Common Stock to the disadvantage of the Issuer's shareholders. On September 7, 1999, by letter to the Board of Directors of the Issuer, AXM made a non-binding proposal for a tax-free merger of AXM and the Issuer in which 0.60328 shares of AXM's common stock would be exchanged for each share of Common Stock. On September 8, 1999, by Amendment No. 1 to the Schedule 13D originally filed on September 7, 1999, a copy of such letter was filed as Exhibit 2 to the Schedule 13D originally filed on September 7, 1999, and a copy of a press release disclosing the merger proposal and the letter was filed as Exhibit 3 to the Schedule 13D originally filed on September 7, 1999. AXM believes that the terms of its proposal are financially superior to those reflected in the proposed transaction with AMCT. Item 4 is amended to add the following: The Issuer and AXM have exchanged further correspondence. By letter from the Issuer to AXM dated October 26, 1999, a copy of which is filed herewith as Exhibit 11, the Issuer advised AXM that the Board of Directors of the Issuer had voted to reject AXM's proposal, and that the Board had directed its officers and representatives not to pursue discussions, negotiations or exchanges of information with AXM. By letter from AXM to the Issuer dated December 27, 1999, a copy of which is filed herewith as Exhibit 12, AXM reiterated its desire to move forward with its proposed transaction. In addition, AXM noted that under Section 8.1(b) of the AMCT acquisition agreement, the Issuer is entitled to terminate that agreement without paying a termination fee if the AMCT transaction is not completed by December 31, 1999, and that there was no longer enough time to obtain the shareholder approval necessary to complete the AMCT transaction prior to that date. Accordingly, unless the Issuer agrees with AMCT to extend the deadline, then from and after January 1, 2000, the Issuer will no longer be contractually prohibited from negotiating a superior transaction with AXM. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS Item 7 is amended to add the following additional Exhibits: Exhibit 11 Letter dated October 26, 1999 from the Issuer to AXM Exhibit 12 Letter dated December 27, 1999 from AXM to the Issuer SIGNATURES After reasonable inquiry and to the best of its knowledge and belief, each of the undersigned certifies that the information set forth in this Statement is true, complete and correct. December 28, 1999 APEX MORTGAGE CAPITAL, INC. By: /s/ Daniel K. Osborne -------------------------- Name: Daniel K. Osborne Title: Executive Vice President, Chief Operating Officer and Chief Financial Officer THE TCW GROUP, INC. By: /s/ Michael E. Cahill -------------------------- Name: Michael E. Cahill Title: Managing Director, General Counsel & Secretary ROBERT A. DAY By: /s/ Michael E. Cahill --------------------------- Name: Michael E. Cahill Title: Authorized Signatory EX-11 2 LETTER DATED OCTOBER 26, 1999 FROM ISSUER TO AXM October 26, 1999 Philip A. Barach President and Chief Executive Officer Apex Mortgage Capital, Inc. 865 South Figueroa Street, Suite 1800 Los Angeles, California 90017 Daniel K. Osborne Executive Vice President and Chief Operating Officer Apex Mortgage Capital, Inc. 865 South Figueroa Street, Suite 1800 Los Angeles, California 90017 Gentlemen: This is to inform you that the Board of Directors of Impac Commercial Holdings, Inc. (the "Company") has unanimously voted to reject the proposal (the "Apex Proposal") embodied in the letter dated September 7, 1999 to the Company from Apex Mortgage Capital, Inc. ("Apex"). Among other things, after consultation with its independent financial advisor, Bear, Stearns & Co. Inc., the Board unanimously concluded that the Apex Proposal did not constitute a "Superior Proposal" within the meaning of Section 6.7(b) of the Agreement and Plan of Merger dated as of August 4, 1999 by and between the Company and AMRESCO Capital Trust ("AMRESCO"). Accordingly the Board has directed its officers and representatives not to pursue discussions, negotiations or exchanges of information with Apex. The principal reasons for the Board's determination will be set forth more fully in the Company's proxy materials relating to the AMRESCO transaction. On a fundamental level, the Board does not believe that a strategic alliance with Apex represents an attractive opportunity for the Company and its shareholders. The Company was not and is not for sale. Rather pursuant to a strategic combination with AMRESCO, the Board is selecting to pursue a business plan which it believes will result in enhanced value for the Company's shareholders. Accordingly even if the AMRESCO transaction were not to be consummated, the Board would not seek such an alliance with Apex but would explore other strategic alternatives. Sincerely, /s/ Wesley R. Edens - -------------------- Wesley R. Edens Chairman of the Board Chief Executive Officer EX-12 3 LETTER DATED DECEMBER 27, 1999 FROM AXM TO THE ISSUER December 27, 1999 Mr. Wesley R. Edens Chairman of the Board and Chief Executive Officer Impac Commercial Holdings, Inc. 1401 Dove Street Newport Beach, California 92660 Dear Mr. Edens: We received your letter dated October 26, 1999 rejecting our offer to acquire Impac Commercial Holdings, Inc. ("ICH"). We are disappointed that you have rejected our premium offer to the detriment of your shareholders. We remain concerned that the ICH Board of Directors has not given our offer adequate consideration, especially in light of the obvious conflicts of interests between Fortress Investment Group and its affiliates ("Fortress") and ICH shareholders. We are not alone in our belief that the ICH Board of Directors has not given our offer appropriate consideration. Indeed, since you rejected our offer, two class action lawsuits have been filed alleging that ICH's Board of Directors and officers breached their duty to ICH shareholders by, among other matters, giving insufficient consideration to our offer. We note also that the market does not support the existing acquisition proposal from Amresco Capital Trust ("AMCT"). ICH's stock price has declined approximately 17% from August 3, 1999, the day before the proposal was announced, and is currently within $0.25 per share of its fifty-two week low based on the closing price on December 23, 1999. It was recently announced that Fortress acquired a controlling stake in Capstead Mortgage Corporation ("Capstead") on December 9, 1999. As part of this transaction, a proposal has been made that would require the combined AMCT/ICH entity to pay Capstead fees for various services. This proposal, which includes a variety of components, is being submitted to a vote of Capstead shareholders for their approval. Why would the combined AMCT/ICH entity be required to pay fees to a company controlled by Fortress when it is already paying Fortress management fees as outlined in the Preliminary Proxy Statement filed on November 3, 1999? Why are the Capstead shareholders being given a chance to vote on this issue when ICH shareholders are not? As one of the largest holders of ICH stock, we would like answers to these questions. Finally, it is clear that under Section 8.1 (b) of the existing AMCT/ICH acquisition agreement dated August 4, 1999 (the "AMCT/ICH Agreement") that ICH can terminate the AMCT/ICH Agreement without paying a termination fee if the transaction is not completed by December 31, 1999. There is no longer enough time to obtain the shareholder approval necessary to complete the transaction prior to that date. Therefore, on January 1, 2000, you will no longer be contractually prohibited from negotiating a superior transaction with us. Extending the AMCT/ICH Agreement at this time would obviously be detrimental to ICH shareholders in light of our continued efforts to deliver a more favorable transaction. Further, the value to be received by ICH shareholders pursuant to the AMCT/ICH Agreement has declined by over 12% since it was announced based on closing prices on December 23, 1999. The ICH Board of Directors now has the opportunity to enable shareholders to avoid this decline in value by terminating the AMCT/ICH Agreement when the December 31, 1999 deadline passes. Any action to the contrary would show blatant disregard for shareholders' interests. Our current offer presents ICH shareholders with the opportunity to receive a 21% premium over the existing AMCT proposal based on closing market prices on December 23, 1999. We urge all ICH Directors to consider their fiduciary responsibility in evaluating our offer, and again request that we be allowed to commence our due diligence review in a timely manner so that we may move forward with our proposal to deliver the highest value to ICH shareholders. We wish to re-emphasize our conviction that the transaction we propose offers demonstrably superior immediate value, as well as greater long-term value, to ICH's shareholders as compared to the AMCT offer. Furthermore, it is possible that the results of our due diligence review may afford us the opportunity to increase our offer (if an increase is justified by the information made available to us). The likelihood of our being able to improve our offer for ICH will increase if your termination fee is no longer an issue. We may also be willing to offer other forms of consideration to ICH's shareholders, which might include preferred stock in Apex Mortgage Capital, Inc., or cash. We urge you to help us realize for ICH shareholders the superior value we are offering. As previously indicated, we are filing all of our material correspondence regarding ICH with the Securities and Exchange Commission as amendments to our filing on Form 13D in order to fulfill our disclosure obligations under applicable law. We remain motivated to move forward with you on our proposed transaction especially now that you are no longer contractually prohibited from negotiating with us. Please contact one of us as soon as possible so that we may begin the process in earnest. Very truly yours, Apex Mortgage Capital, Inc. By: /s/ Philip A. Barach By: /s/ Daniel K. Osborne ---------------------- ---------------------- Philip A. Barach Daniel K. Osborne President and Executive Vice President and Chief Executive Officer Chief Operating Officer CC: Christopher W. Mahowald Frank P. Philips Joseph R. Tomkinson -----END PRIVACY-ENHANCED MESSAGE-----