-----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, TPza6WzdN1JR5NMxiy2lsh4x8QUG6R4moTeAmh7xCTs8D0uq9lAFybhtyJn+IkCJ +utcq1fKJzL8dHPWDuJrkg== 0000902664-04-000812.txt : 20040505 0000902664-04-000812.hdr.sgml : 20040505 20040504183316 ACCESSION NUMBER: 0000902664-04-000812 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20040505 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: 04779082 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 srz04-0366sc13da.txt SC 13D/A - AMENDMENT NO. 4 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.4) 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) May 3, 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 7 SOLE VOTING POWER SHARES BENEFICIALLY 1,639,937 OWNED BY EACH REPORTING PERSON WITH -------------------------------------------------------- 8 SHARED VOTING POWER -0- -------------------------------------------------------- 9 SOLE DISPOSITIVE POWER 1,639,937 -------------------------------------------------------- 10 SHARED DISPOSITIVE POWER -0- - ----------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,639,937 - ----------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* |_| - ----------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 8.1% - ----------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* IA ======================================================================= SEE INSTRUCTIONS BEFORE FILLING OUT!* - ---------------------------------- ------------------ CUSIP No. 45845L107 13D Page 3 of 4 Pages - ---------------------------------- ------------------ This Amendment No. 4 to 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 and Amendment No. 3 relating to the Event Date of May 3, 2004, (collectively, the "Schedule 13D") is being filed for the sole purpose of attaching Exhibit 2 and Exhibit 6, which were inadvertently omitted from the Reporting Person's previous 13D/A filings due to an error during EDGAR tranmission. Such Exhibits were previously filed on Schedule 14A on April 27, 2004 and May 3, 2004, respectively. Item 7. Material to be Filed as Exhibits. -------------------------------- Attached hereto as Exhibit 2 is a letter, dated April 26, 2003, to John W. Collins, Chairman and Chief Executive Officer of the Issuer. Attached hereto as Exhibit 6 is a letter, dated May 3, 2004, to the Issuer. - ---------------------------------- ------------------ 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: May 4, 2004 JANA PARTNERS LLC By: /s/ Barry S. Rosenstein ------------------- Barry S. Rosenstein Managing Director By: /s/ Gary Claar ------------------- Gary Claar Managing Director EX-99 2 srz04-0366coverltr.txt APRIL 26, LETTER TO COLLINS [GRAPHIC OMITTED] April 26th, 2004 John W. Collins Chairman/Chief Executive Officer InterCept, Inc. 3150 Holcomb Bridge Road Suite 200 Norcross, GA 30071 Dear Mr. Collins, We find the recent actions taken by you, the board of directors and management to deny the shareholders of InterCept their full voting and information rights to be repugnant to the standards of good corporate governance to which all public companies are bound. Because you and management seem not to be aware, we would like to remind you that laws giving shareholders the right to vote, providing shareholders with access to information about the company and preventing management from entrenching themselves at the expense of shareholders are in place because PUBLIC COMPANIES LIKE INTERCEPT ARE TO BE RUN FOR THE BENEFIT OF THEIR SHAREHOLDERS, NOT FOR THE BENEFIT OF YOU, THE BOARD OF DIRECTORS OR MANAGEMENT. We have requested the following rights to which we are entitled as shareholders of InterCept: the right to nominate four directors as set forth under InterCept's own bylaws, the right to a full and complete list of our fellow shareholders so that we may contact them and the right to certain books and records of the company so that we may gather the necessary information to conduct an informative and fair proxy contest. Your and management's response in almost every case has been solely dedicated to denying or delaying these basic shareholder rights and therefore today we have filed suit in Georgia federal court to force you and management to honor InterCept's obligations to its shareholders. We learned today that you have finally agreed to turn over some information, knowing as you must that the court this week would have required you to do so anyway, although we have not yet received such information. In light of InterCept's actions, we feel compelled to remind both you and the other members of the board that directors of a public company can be held personally liable for breaches of fiduciary duty, and we would urge each of you to carefully consider not only your past actions but any further efforts you might take to frustrate our efforts to bring accountability to InterCept's board and to maximize the value of all of its shareholders' investments. THE RIGHT TO NOMINATE DIRECTORS AS PROVIDED BY INTERCEPT'S OWN BYLAWS InterCept's own bylaws, up until April 14th, 2004, provided that "A director elected to fill a vacancy shall hold office only until the next election of directors by the shareholders." Because two directors of InterCept resigned last February as a result of the board's decision to discontinue evaluating a sale of the company, this would mean that the board's handpicked directors who filled these vacancies would be up for election together with the two directors whose terms also expire at the annual meeting, creating a total of four open seats on the board. Management now has informed us, without any apparent embarrassment, that we have somehow created "confusion" by seeking to follow the letter of the company's own bylaws in nominating directors. We find these comments to be the height of hypocrisy and misdirection. Moreover, while the board has been content to let this provision stand since 1998, on April 14, 2004, without the approval of shareholders despite the fact that a shareholders meeting is coming up, the board amended the bylaws to remove the "confusion" that would have allowed shareholders to exercise the rights to which they have been led to believe they are entitled by the company's own bylaws. If this provision of the bylaws has been allowed to stand for almost six years, what possible purpose could there be for "Fixing" it now, on the eve of an election, other than management entrenchment? THE RIGHT TO CONTACT FELLOW SHAREHOLDERS The right to demand shareholder information is one of the most basic rights held by shareholders because it provides them with a voice by allowing them to contact other concerned shareholders. In addition to rights granted to shareholders under Georgia common law, under the Georgia Business Corporation Code shareholders holding more than 2% of a Georgia public company are entitled to a record of the company's shareholders and other information. Although we hold well over the required percentage of InterCept's common stock to exercise this right, management has denied us this basic right with trumped-up requests for unnecessary additional information. Although finally, on the eve of a court hearing, you have agreed to provide us with some of this information, we have yet to receive it and thus can not determine whether it will be sufficient. THE RIGHT TO INSPECT THE COMPANY'S BOOKS AND RECORDS We have requested certain of InterCept's books and records, to which shareholders are entitled under the law, including information that would shed light on the board of directors' abrupt decision to shut down the sale process it began last year. Given the many questions surrounding this decision, we believe it is important that InterCept's shareholders get some type of explanation for the board's motivation. This is all the more important in the context of the upcoming election of directors, prior to which we believe the company's shareholders should be presented with all of the facts. While we suspect there are good reasons that you and the board do not want to turn over this information, we remind you once again that this is what being on the board of a public company entails, that is, being accountable to the shareholders of the company. While we are disappointed in the actions taken by you, management and the board, we are not surprised, given that this is hardly the first time we have witnessed management entrenchment activity and failure to act in the best interests of the shareholders at InterCept. Specifically, the facts surrounding the aforementioned decision by the board to abruptly end the sale process, despite receiving several indications of interest at what we believe were meaningful premiums, make very clear that the board (excluding of course the independent directors who quit as a result of the decision) had only been interested in selling to you, not in realizing the maximum value of InterCept for its shareholders. We also find it very troubling that shortly before you announced your plan to make an offer to take the company private, InterCept issued preferred stock to investors granting extraordinary rights such as the right to block any amendment to the company's charter or bylaws and to block any sale of the company, even should a majority of shareholders support such actions, all in exchange for only $10 million, or approximately 2% of InterCept's total assets at the time. To put it another way, holders of preferred representing approximately 3% of InterCept's stock now have more power than a majority of InterCept's shareholders. You seek to make a great deal of the fact in your public comments that we are in the business of making investments. It might surprise you to know that all of your shareholders have made an investment in your company, and whether they are looking for a "quick buck" or just a fair return, they have a right to protect their investment from management entrenchment and obstruction of the voting franchise. InterCept shareholders wondering who would do the best job of maximizing the value of their investment might also be interested to know that since the inception of our fund, we have delivered an annualized return of 30.4%, during a period in which the S&P Index's annualized return fell by 1% (but then again, we have focused only on what's best for our investors). Mr. Collins, all we have asked for is that the management of InterCept allow its shareholders to exercise their voting rights in a fairly conducted election. Let's just say it: you and management are fighting this because you are well aware that, if given the chance, the shareholders of InterCept will replace you and a majority of the board. Rest assured however that we will not permit you to deny your shareholders their rights. Sincerely, JANA Partners LLC Barry S. Rosenstein Managing Member CC: THE OTHER MEMBERS OF THE BOARD OF DIRECTORS OF INTERCEPT Dr. James A. Verbrugge Mark Hawn John D. Schneider, Jr. Glenn W. Sturm Arthur G. Weiss EX-99 3 srz04-0366cover.txt MAY 3, LETTER TO INTERCEPT JANA MASTER FUND 200 PARK AVENUE SUITE 3900 NEW YORK, NEW YORK 10166 May 3rd, 2004 BY HAND DELIVERY AND NEXT DAY MAIL InterCept, Inc. 3150 Holcomb Bridge Road, Suite 200 Norcross, Georgia 30071 Attention: Secretary Gentlemen: Pursuant to (i) Section 2.13 of InterCept, Inc.'s ("InterCept" or "you") Amended and Restated Bylaws (the "Bylaws") and (ii) the order (the "Order"), dated April 29, 2004, of the United States District Court For the Northern District of Georgia - Atlanta in Civil Action No. 1:04-CV-1058-JOF, Jana Master Fund, Ltd. ("Jana", "we", "us" or "our") hereby notifies you of the following proposals to be considered at InterCept's 2004 Annual Meeting of Shareholders: 1. Proposal to amend and restate Section 3.3 of the Bylaws in its entirety with the following: "The entire Board of Directors or any individual director may be removed with or without cause by the shareholders, provided that directors elected by a particular Voting Group may be removed with or without cause only by the shareholders in that Voting Group. Removal action may be taken only at a shareholders' meeting for which notice of the removal action has been given, and a director may be removed only by the holders of at least a majority of the votes entitled to be cast. If any removed director is a member of any committee of the Board of Directors, he shall cease to be a member of that committee when he ceases to be a director. A removed director's successor, if any, may be elected at the same meeting to serve the unexpired term. The Board of Directors may not amend or repeal or adopt any bylaw provision inconsistent with this Section 3.3." 2. Proposal to amend and restate the second sentence of Section 3.4 of the Bylaws in its entirety with the following: "Any vacancy occurring on the Board of Directors, including a vacancy resulting from an increase in the number of directors, shall be filled by the shareholders at a shareholders' meeting called for such purpose, or if the shareholders fail to act to fill the vacancy at such shareholders' meeting, by the Board of Directors, even if the remaining directors constitute less than a quorum of the Board of Directors; PROVIDED, HOWEVER, that if the vacant office was held by a director elected by a particular Voting Group, only the holders of shares of that Voting Group or, if such holders fail to act to fill the vacancy at a shareholders' meeting called for such purpose, the remaining directors elected by that Voting Group shall be entitled to fill the vacancy; PROVIDED FURTHER, HOWEVER, that if the vacant office was held by a director elected by a particular Voting Group AND there is no remaining director elected by that Voting Group, the other remaining directors or director (elected by another Voting Group or Groups) may fill the vacancy if the shareholders of the vacated director's Voting Group fail to act to fill the vacancy at a shareholders' meeting called for such purpose; PROVIDED FURTHER, HOWEVER, that notwithstanding the foregoing, a vacancy occurring as a result of a removal of a director with or without cause shall be filled exclusively by the shareholders or, if applicable, holders of shares of a particular Voting Group as provided above. The Board of Directors may not amend or repeal or adopt any bylaw provision inconsistent with the previous sentence of this Section 3.4." 3. Proposal to amend and restate the first sentence of Section 2.3 of the Bylaws in its entirety with the following: "Special meetings of shareholders of one or more classes or series of the Corporation's shares may be called at any time by the Board of Directors, the Chairman of the Board, or the President, and shall be called by the Corporation upon the written request (in compliance with applicable requirements of the Code) of the holders of shares representing ten percent (10%) or more of the votes entitled to be cast on each issue proposed to be considered at the special meeting. The Board of Directors may not amend or repeal or adopt any bylaw provision inconsistent with the previous sentence of this Section 2.3." The reason we submit these proposals is to further our goals of maximizing shareholder value. The only material interests we have in InterCept or in the proposed business are our share ownership as described below, our nominations to InterCept's Board of Directors as described below and our goals of maximizing shareholder value. Our name, as it appears on InterCept's books, our address and the number of shares of InterCept capital stock we beneficially own are set forth below: Name, as it appears on InterCept's books: Jana Master Fund, Ltd. Address: 200 Park Avenue Suite 3900 New York, New York 10166 Number of shares of capital stock beneficially owned: 1,505,663 shares of common stock, no par value. In addition to the 1,505,663 shares of Common Stock mentioned above, another account managed by our investment manager JANA Partners LLC owns 134,274 shares of Common Stock. For purposes of clarification, our previously submitted proposal, dated April 2, 2004, to elect Kevin J. Lynch and Marc Weisman each as a Class III member to the Board of Directors to fill the seats of the two directors in Class III whose terms are expiring at the 2004 annual meeting remains in effect and we rescind our proposal to nominate Gary Claar and Barry Rosenstein to the Board of Directors. If any further information is required concerning any of our proposals, please do not hesitate to contact us. Very truly yours, JANA MASTER FUND, LTD. By: JANA Partners LLC, Its Investment Manager By:__________________________ Name: Barry S. Rosenstein Title: Managing Member -----END PRIVACY-ENHANCED MESSAGE-----