-----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, S842JxCbtX8s+GihonTUsCb8f6nBePi63AOFRbjcYA/DH5CEN87NUlxZNQY20Htn xhQPqNa8wIM00WY9/Qd96w== 0000902664-04-001000.txt : 20040614 0000902664-04-001000.hdr.sgml : 20040611 20040614072845 ACCESSION NUMBER: 0000902664-04-001000 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20040614 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: JANA PARTNERS LLC CENTRAL INDEX KEY: 0001159159 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: JANA PARTNERS LLC STREET 2: 536 PACIFIC AVENUE CITY: SAN FRANCISCO STATE: CA ZIP: 94133 BUSINESS PHONE: 2125935955 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: INTERCEPT INC CENTRAL INDEX KEY: 0001054930 STANDARD INDUSTRIAL CLASSIFICATION: FUNCTIONS RELATED TO DEPOSITORY BANKING, NEC [6099] IRS NUMBER: 582237359 STATE OF INCORPORATION: GA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-55377 FILM NUMBER: 04859566 BUSINESS ADDRESS: STREET 1: 3150 HOLCOMB BRIDGE ROAD SUITE 200 CITY: NORCROSS STATE: GA ZIP: 30071 BUSINESS PHONE: 7702489600 MAIL ADDRESS: STREET 1: 3150 HOLCOMB BRIDGE ROAD SUITE 200 CITY: NORCROSS STATE: GA ZIP: 30071 FORMER COMPANY: FORMER CONFORMED NAME: INTERCEPT GROUP INC DATE OF NAME CHANGE: 19980209 SC 13D/A 1 srz9666939.txt JANA PARTNERS -- INTERCEPT, INC. SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 -------------- SCHEDULE 13D/A (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.7) INTERCEPT, INC. ------------------------------------------------------ (Name of Issuer) COMMON STOCK ------------------------------------------------------ (Title of Class of Securities) 45845L107 ------------------------------------------------------ (CUSIP Number) Marc Weingarten, Esq. SCHULTE ROTH & ZABEL LLP 919 Third Avenue New York, New York 10022 (212) 756-2000 ------------------------------------------------------ (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) June 11, 2004 ------------------------------------------------------ (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 for other parties to whom copies are to be sent. - -------- 1 The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. 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 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). (page 1 of 4 pages) - ---------------------- ------------ ------------------ CUSIP No. 45845L107 13D Page 2 of 4 Pages - ---------------------- ------------ ------------------ =============================================================================== 1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) JANA PARTNERS LLC - ------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_| (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 DELAWARE - ------------------------------------------------------------------------------- NUMBER OF SHARES 7 SOLE VOTING POWER BENEFICIALLY 1,914,737 OWNED BY EACH REPORTING PERSON WITH ---------------------------------------------------------------- 8 SHARED VOTING POWER -0- ---------------------------------------------------------------- 9 SOLE DISPOSITIVE POWER 1,914,737 ---------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER -0- - ------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,914,737 - ------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* |_| - ------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.4% - ------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* IA =============================================================================== SEE INSTRUCTIONS BEFORE FILLING OUT!* - ---------------------- ------------ ------------------ CUSIP No. 45845L107 13D Page 3 of 4 Pages - ---------------------- ------------ ------------------ The Schedule 13D filed on April 12, 2004 by Jana Partners LLC, a Delaware limited liability company (the "Reporting Person"), relating to the common stock, no par value (the "Shares"), of InterCept, Inc. (the "Issuer"), as amended by Amendment No. 1 relating to the Event Date of April 26, 2004, Amendment No. 2 relating to the Event Date of April 29, 2004, Amendments No. 3 and No. 4 relating to the Event Date of May 3, 2004, Amendment No. 5 relating to the Event Date of May 20, 2004 and Amendment No. 6 relating to the Event Date of May 26, 2004, (collectively, the "Schedule 13D") is hereby amended and supplemented as set forth below by this Amendment No. 7 to the Schedule 13D. Item 4. Purpose of the Transaction. ------------------------------------ Item 4 of the Schedule 13D is hereby supplemented as follows: On June 11, 2004, the Reporting Person and the Issuer signed a Settlement Agreement in which they agreed that (a) the Issuer will promptly explore strategic alternatives to creating shareholder value, including a possible sale of the Issuer, and will hire an investment bank to assist it in doing so, (b) the Issuer's board of directors will be expanded to nine, and two of the Reporting Person's nominees for the board of directors, Marc Weisman and Kevin J. Lynch, plus Robert Finzi or another individual to be named by the Sprout Group, will join the board of directors, (c) the Reporting Person will support the Issuer's motion to convene the 2004 Annual Meeting on June 24, 2004 and adjourn until September 14, 2004, withdraw its bylaw amendment proposals, refrain from soliciting proxies for the 2004 Annual Meeting and vote its shares at the 2004 Annual Meeting for the election to the board of directors of John W. Collins, Arthur Weiss, Mr. Weisman, Mr. Lynch and Robert Finzi or another individual to be named by the Sprout Group, (d) the Issuer's board of directors will take no action which would impair the ability of shareholders to elect new directors at the 2005 Annual Meeting who, together with Messrs. Weisman and Lynch, would constitute a majority of the board of directors, (e) the 2005 Annual Meeting will be held on or before April 15, 2005, (f) the Issuer and the Reporting Person will request that their pending litigation in Georgia federal court be dismissed with prejudice and (g) the Issuer will reimburse the Reporting Person for its actual out-of-pocket expenses in connection with the proxy contest and related litigation, not to exceed $750,000 and payable only on the condition that the Issuer's shareholders approve a sale or other business combination of the Company on or prior to the 2005 Annual Meeting. A copy of the complete Settlement Agreement is attached as a copy hereto. Item 7. Material to be Filed as Exhibits. ------------------------------------ Attached hereto as Exhibit 7 is the Settlement Agreement by and among JANA Partners LLC, JANA Master Fund, Ltd. and InterCept, Inc. Attached hereto as Exhibit 8 is a press release, dated June 11, 2004 - ---------------------- ------------ ------------------ CUSIP No. 45845L107 13D Page 4 of 4 Pages - ---------------------- ------------ ------------------ SIGNATURES After reasonable inquiry and to the best of its knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct. Dated: June 11, 2004 JANA PARTNERS LLC By: /s/ Barry S. Rosenstein ---------------------- Barry S. Rosenstein Managing Director By: /s/ Gary Claar ------------------- Gary Claar Managing Director EX-7 2 srzexhibit-7.txt SC 13D/A SETTLEMENT AGREEMENT This Settlement Agreement (the "Agreement") is entered into this 11th day of June, 2004 by and between InterCept, Inc. (the "Company" or "InterCept"), on the one hand, and JANA Partners, LLC and JANA Master Fund, Ltd. (collectively, "JANA"), on the other hand, with respect to the litigation between InterCept and JANA, among others, in the U.S. District Court for the Northern District of Georgia, Atlanta Division (the "Court") (Civil Action No 1:04-CV-1058-JOF) (the "Litigation"), and with respect to conduct of and the solicitation of proxies for the 2004 Annual Shareholders Meeting of InterCept ("2004 Annual Meeting"). In consideration of the mutual covenants and agreements set forth herein, the Company and JANA agree as follows: 1. EXPANSION OF BOARD. Prior to June 24, 2004, the InterCept board of directors will (i) expand the size of the InterCept board of directors to nine by adding one position to each of classes I, II and III, and (ii) elect Kevin J. Lynch and Marc Weisman to fill the newly created class II and III board positions, and Robert Finzi of Sprout Group (or in the event Mr. Finzi declines to serve then such other independent director selected by the board of directors) to fill the newly-created class I board position (the "New Class I Director"). 2. 2004 ANNUAL MEETING. JANA agrees (i) to support management in its motion or other action to convene the annual meeting on June 24, 2004 and then to adjourn the annual meeting until September 14, 2004; (ii) to withdraw its three proposed bylaw amendments; (iii) to refrain from soliciting proxies for the 2004 Annual Meeting; and (iv) to vote its shares in support of the five director nominees up for election at the annual meeting (the New Class I Director in class I, Mr. Lynch in class II and Messrs. Collins, Weiss and Weisman in class III). InterCept agrees that it will nominate and support for election at the 2004 Annual Meeting the five director nominees referenced in the preceding sentence. There will be no further change to the size of the Board prior to the 2005 annual meeting or any other action (including amending its bylaws) by the Company (other than the potential sale or other business combination of the Company) the effect of which would be to impair the ability of the shareholders to elect three new directors nominated by JANA or a third party at the 2005 annual meeting who, together with Messrs. Lynch and Weisman, would constitute a majority of the InterCept board of directors (provided that the foregoing shall not restrict the Company's ability to nominate directors or conduct a proxy solicitation in connection with the 2005 annual meeting). 3. EVALUATION OF STRATEGIC ALTERNATIVES. The InterCept board of directors agrees to promptly explore strategic alternatives to creating shareholder value, including a possible sale of the Company, and will promptly retain Jefferies & Company, Inc., or another nationally recognized investment bank mutually satisfactory to both parties, to assist it in exploring strategic alternatives to creating shareholder value, including a possible sale of the Company. If a board committee is formed to manage this process, Mr Weisman will be a member of the committee. 4. 2005 ANNUAL MEETING. The 2005 annual meeting will be held on or before April 15, 2005. 5. SETTLEMENT OF LITIGATION. InterCept and JANA agree to file the appropriate papers necessary to request that the Court dismiss the Litigation with prejudice. 6. REIMBURSEMENT OF EXPENSES. InterCept agrees to reimburse JANA for their actual out of pocket expenses in connection with the proxy contest and related litigation not to exceed $750,000 payable only on the condition that InterCept's shareholders approve a sale or other business combination of the Company on or prior to the 2005 annual meeting, such reimbursement to be made within two (2) business days after such approval. Nothing herein is intended to limit the ability of InterCept to agree in the future to any reimbursement of JANA for such expenses. 7. JOINT PRESS RELEASE: NON-DISPARAGEMENT. JANA and InterCept agree to issue a Joint press release in substantially the form attached hereto as EXHIBIT A. Neither InterCept nor JANA shall make any further press releases or public statements regarding this settlement without the prior consent of the other party, such consent to not be unreasonably withheld, unless such press release or disclosure is required by law. Furthermore, InterCept and JANA will agree not to publicly disparage the other with respect to matters arising through the date of this settlement, PROVIDED, HOWEVER, that nothing herein will hinder either party's ability to disagree with the other as to future decisions relating to InterCept or otherwise and provided, further, that notwithstanding any provision contained herein to the contrary, nothing herein will hinder either party in connection with the conduct of a proxy solicitation in connection with the 2005 annual meeting. JANA consents to InterCept including a summary of this settlement and/or a copy of this Agreement in a Form 8-K Current Report and in its proxy statements (or supplements or amendments thereto) for the 2004 Annual Meeting and the 2005 Annual Meeting. InterCept consents to JANA including a copy of this Agreement in an amendment to its report of beneficial ownership on Schedule 13D. 8. EQUITABLE RELIEF. The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in any court of the United States located in the State of Georgia or in Georgia state court, without bond or other security being required, this being in addition to any other remedy to which they are entitled at law or in equity. 9. SEVERABILITY. If any term or other provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or incapable of being enforced by any rule of law or public policy, all other terms, provisions and conditions of this Agreement shall nevertheless remain in full force and effect. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, 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 extent possible. 10. MISCELLANEOUS. This Agreement shall be governed by and construed in accordance with the laws of the state of Georgia. Any waiver or amendment of this Agreement must be in writing signed by the parties hereto. This Agreement shall inure to the benefit of any be binding upon, each party and that party's respective successors and assigns. This Agreement contains the entire agreement between the parties respecting any matter contained herein. The parties have participated jointly in the drafting of this Agreement and no ambiguity or question of intent or interpretation shall be presumed or construed against any party. The rights and obligations of each party hereto shall be nonassignable without the prior written consent of the other party. This Agreement may be executed in counterparts, all of which shall be considered one and the same agreement and each of which shall be deemed an original. -Signature Page Follows- IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have executed or caused this Agreement to be executed as of the date first written above. INTERCEPT, INC. By: John Collins ------------------------- John Collins Chairman and Chief Executive Officer JANA MASTER FUND, LTD. By: JANA Partners LLC, its Investment Manager By: -------------------------- Barry Rosenstein Managing Partner JANA PARTNERS, LLC By: -------------------------- Barry Rosenstein Managing Partner EX-8 3 srzexhibit-8.txt SC 13D/A INTERCEPT HIRES INVESTMENT BANKER TO EXPLORE POSSIBLE SALE INTERCEPT ALSO SETTLES PROXY CONTEST WITH JANA PARTNERS ATLANTA, GA (June 11, 2004) - InterCept, Inc. (Nasdaq: ICPT), a leading provider of technology products and services for financial institutions, today announced that it will explore strategic alternatives to enhance shareholder value, including a possible sale of the company, and has retained Jefferies & Company, Inc. as its financial advisor to assist the company in doing so. In addition, InterCept and JANA Partners LLC announced today that they have agreed to settle their proxy contest and pending litigation and to jointly support a panel of director nominees for election at the 2004 annual meeting of InterCept shareholders. According to John W. Collins, Chairman and Chief Executive Officer of InterCept, "Based on recent strong levels of interest from prospective purchasers and feedback provided by some of our shareholders, we believe that an exploration of strategic alternatives at this time is in the best interest of the company. To avoid the distraction of a proxy fight and improve our ability to achieve maximum value for our shareholders, we have settled our dispute with JANA. We look forward to working with JANA to enhance value for all InterCept shareholders." InterCept and JANA have agreed that, on or before June 24, 2004, the size of the InterCept Board will be increased from six to nine members, and that Kevin J. Lynch and Marc Weisman, two nominees proposed by JANA, will be elected to fill the newly-created Class II and III director seats and Robert Finzi of Sprout Group will be offered the newly-created Class I board seat. InterCept and JANA also have agreed to dismiss the litigation pending in the United States District Court for the Northern District of Georgia, Atlanta Division, relating to the conduct of the 2004 annual meeting, and that InterCept will reimburse JANA for up to $750,000 of its expenses if the shareholders approve a sale of the company. InterCept also agreed to hold its 2005 annual meeting, if necessary, not later than April 15, 2005. According to Barry S. Rosenstein, managing member of JANA Partners, "InterCept's board of directors has been responsive to our proposal to explore strategic alternatives and to allow JANA's representatives to have a role in the InterCept boardroom. We are eager to work with the InterCept board to maximize shareholder value." InterCept also announced that at the annual meeting scheduled for June 24, 2004, management, with the support of JANA, intends to convene and then adjourn the annual meeting until September 14, 2004. "Due to the possibility that we may be convening a shareholders meeting in the coming months to approve a sale, business combination or other strategic transaction, we have decided to postpone our annual meeting in order to avoid the time and expense associated with perhaps conducting two shareholder meetings in close proximity to one another," noted Collins. At the 2004 annual meeting, the InterCept board and JANA will jointly support the election of Mr. Finzi or another independent nominee as a Class I director, Mr. Lynch as a Class II director and John W. Collins, Arthur G. Weiss and Marc Weisman as Class III directors. ABOUT INTERCEPT InterCept, Inc. is a single-source provider of a broad range of technologies, products and services that work together to meet the technology and operating needs of financial institutions. InterCept's products and services include core data processing, check processing and imaging, electronic funds transfer, debit card processing, data communications management, and related products and services. For more information about InterCept, go to www.intercept.net or call 770.248.9600. THIS RELEASE CONTAINS FORWARD-LOOKING STATEMENTS WITHIN THE MEANING OF THE SECURITIES LAWS THAT ARE BASED ON CURRENT EXPECTATIONS, ASSUMPTIONS, ESTIMATES, AND PROJECTIONS ABOUT INTERCEPT AND ITS INDUSTRY. THESE FORWARD-LOOKING STATEMENTS ARE NOT GUARANTEES OF FUTURE PERFORMANCE AND ARE SUBJECT TO RISKS AND UNCERTAINTIES, MANY OF WHICH ARE OUTSIDE OF INTERCEPT'S CONTROL, THAT MAY CAUSE ACTUAL RESULTS TO DIFFER MATERIALLY FROM THOSE EXPRESSED OR IMPLIED BY THE FORWARD-LOOKING STATEMENTS. THESE RISKS AND UNCERTAINTIES INCLUDE WHETHER INTERCEPT WILL BE ABLE TO NEGOTIATE AND CONSUMMATE A STRATEGIC TRANSACTION. OTHER RISKS AND FACTORS THAT MAY AFFECT INTERCEPT AND ITS SHARE PRICE ARE DISCUSSED IN DETAIL IN THE SECTION IN ITS MOST RECENT QUARTERLY REPORT ON FORM 10-Q ENTITLED MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS - DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS. -----END PRIVACY-ENHANCED MESSAGE-----