-----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, KcwTluecfkHJGd6POlfA70Bx8p8YTblY4f6bkvw5p+cSZVqboJKcrwyNKOxyEiBq KWuy9ByL8ebfzMiJlZBFrA== 0000902664-04-000798.txt : 20040430 0000902664-04-000798.hdr.sgml : 20040430 20040430170543 ACCESSION NUMBER: 0000902664-04-000798 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20040430 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: 04770610 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 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 SC 13D/A 1 srz9639166v2.txt 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.2) 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) April 29, 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 - --------------------- ------------------ 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 (collectively, the "Schedule 13D") is hereby amended and supplemented as set forth below by this Amendment No. 2 to the Schedule 13D. Item 4. Purpose of Transaction. ----------------------- Item 4 of the Schedule 13D is hereby supplemented as follows: On April 29, 2004, the Atlanta Division of the United States District Court for the Northern District of Georgia issued an order (the "Order") denying a request for a temporary restraining order and preliminary injunction sought by the Issuer to prevent the Reporting Person from nominating four directors at the Issuer's 2004 Annual Meeting. The Court also granted the Reporting Person's request for alternate relief, allowing the Reporting Person to present shareholder proposals at the Annual Meeting. The Reporting Person announced that, consistent with the court's ruling, to avoid uncertainty at the meeting and to facilitate an orderly election, it would nominate only two individuals for election to replace the incumbent directors John W. Collins and Arthur G. Weiss, and that it plans to present its proposals for the 2004 Annual Meeting to the Issuer shortly. More information is available in the attached Order and the Reporting Person's April 29, 2004 press release, copies of which are attached as exhibits hereto. Item 5. Interest in Securities of the Issuer. ------------------------------------- Item 5(a) of the Schedule 13D is hereby amended and restated in its entirety as follows: (a) The aggregate percentage of Shares of Common Stock reported owned beneficially by the Reporting Person is based upon 20,272,148 Shares outstanding, which is the total number of Shares of Common Stock outstanding as of April 15, 2004 as reported in the Issuer's Annual Report on Form 10-K/A for the year ended December 31, 2003, filed by the Issuer on April 29, 2004. As of the close of business on April 29, 2004, JANA Partners LLC beneficially owned 1,639,937 Shares of Common Stock, constituting approximately 8.1% of the Shares outstanding. Item 7. Material to be Filed as Exhibits. --------------------------------- Item 7 is hereby supplemented as follows: Attached hereto as Exhibit 4 is an Order issued by the United States District Court for the Northern District of Georgia, dated April 29, 2004. Attached hereto as Exhibit 5 is a press release, dated April 29, 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: April 30, 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 srz9639192v1.txt COURT ORDER/JANA PARTNERS LLC IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION INTERCEPT, INC., : : Plaintiff, : : v. : : JANA PARTNERS, LLC, and : JANA MASTER FUND, LTD., : : Defendants. : CIVIL ACTION NO. - ------------------------------ : 1:04-CV-1058-JOF JANA MASTER FUND, LTD., : : Counterclaim Plaintiff, : : v. : : INTERCEPT, INC., JOHN W. : COLLINS, MARK HAWN, : JOHN D. SCHNEIDER, JR., : GLENN W. STURM, : DR. JAMES A. VERBRUGGE, and : ARTHUR G. WEISS, : : Counterclaim Defendants, : AO 72A (Rev. 8/82) ORDER This matter is before the court on the motion of Plaintiff, InterCept, Inc., for a temporary restraining order and preliminary injunction [2-l] and Plaintiff's motion to expedite consideration of the same [3-1].(1) I. STATEMENT OF THE CASE A. PROCEDURAL HISTORY On April 28, 2004, this court heard oral argument from both parties on the instant motion for a temporary restraining order and preliminary injunction enjoining Defendants, JANA Partners, LLC, and JANA Master Fund, Ltd., as well as Defendants' officers, agents, and members, from taking any action to nominate four directors at the upcoming June 2004 annual shareholders meeting. B. FACTS Plaintiff is a corporate entity governed by a six-member board of directors with staggered terms. There are three classes of directors, with two directors in each class. Under normal circumstances, at each annual shareholders' meeting one class of directors would come up for vote. In 2004, two Class III directorships are scheduled for voting. Recently, two other directorships became vacant and were filled with successors selected by the Board of Directors. These directorships are not among the two Class 111 directorships scheduled for voting at the 2004 annual meeting. Until April 14, 2004, Plaintiff operated under bylaws which provided that when a vacant directorship was filled, "[a] director elected to fill a vacancy shall hold office only until the next election of directors by the shareholders." Plaintiff's notice of filing declaration of John W. Collins, App. B, Bylaw 3.4. However, on April 14, 2004, the Board of Directors amended the quoted part of Bylaw 3.4 to read: In accordance with Section 14-2-805(d) of the Georgia Business Corporation Code, a director elected to fill a vacancy: (i) in an existing director position shall be elected for the unexpired term of the predecessor in office of such director position; and (ii) in a new director position created by reason of an increase in the number of directors shall be elected until the next election of directors by the shareholders if such vacancy is filled by the Board of Directors, and in each case until election and qualification of the successor to such director. Id. at App. C. Section 14-2-805(d) of the Georgia Business Corporation Code provides: A director elected to fill a vacancy shall be elected for the unexpired term of his predecessor in office. Any directorship to be filled by reason of an increase in the number of directors may be filled by the board of directors, but only for a term of office continuing until the next election of directors and until the election and qualification of the successor. - --------------- (1) As this court granted oral argument at a hearing on April 28, 2004, this motion is DENIED AS MOOT. O.C.G.A. Section 14-2-805(d). The preamble to Plaintiff's bylaws states that all provisions of the bylaws are "subject to contrary provisions, if any, of. . . the Georgia Business Corporation Code." Plaintiff's notice of filing declaration of John W. Collins, App. B. Defendants began purchasing shares of Plaintiff's stock in March 2004, eventually amassing an 8 percent holding in the company. On April 5, 2004, within the time constraints provided in the bylaws, Defendants served notice that they intended to nominate four individuals for the directorships available at the 2004 annual meeting. Defendants, using the unamended bylaws in effect at that time, calculated that the two Class III directorships regularly scheduled for election were in contest as well as the two vacated directorships and thus reached its total of four. April 5, 2004 was the last date on which shareholders could serve notice of their intent to raise matters at the annual shareholder meeting. Subsequently, Plaintiff made the above-described change to the bylaws in the belief that the previous version of 3.4 was inconsistent with state law. See id., App. C. II. DISCUSSION In order to obtain the requested equitable relief, Plaintiffs must show: (1) substantial likelihood of success on the merits, (2) irreparable harm if the requested relief is not granted, (3) impending harm to movant outweighs the harm the injunction might cause to the enjoined party, and (4) granting injunctive relief would not disserve the public interest. GSW, Inc. v. Long County, 999 F.2d 1508, 1518(11th Cir. 1993). In the April 28, 2004 hearing, this court expressed the view that the positions of only two directors may be filled at the June 2004 annual shareholder meeting. This view reflects this court's belief that Plaintiff has an excellent chance of success on the merits of its claim. The Eleventh Circuit Court of Appeals has repeatedly stressed its belief that courts should enforce the plain meaning of a statute. Miccosukee Tribe of Indians of South Florida v. Southern Evergladesz Restoration Alliance, 304 F.3d 1076, 1087(11th Cir, 2002). The court finds that the plain language of Section 14-2-805(d) states in mandatory terms that those persons selected to fill vacant directorships shall remain in those positions for the remainder of the unexpired term of office. Further, neither Georgia law nor the bylaws contemplate a situation in which a corporation's bylaws can be in conflict with state statute. O.C.G.A. Section 14-2-206(b); App. B. Accordingly, as the two vacated directorships are not part of the class of directorships regularly scheduled to expire in 2004, by the terms of the statute, those directorships cannot be open to shareholder vote this year. While Plaintiff has an excellent chance of success on the merits of its claim, the court finds that Plaintiff has presented no evidence of irreparable harm. The only substantive evidence of irreparable harm presented to this court consists in the anxiety in customers and employees engendered by this nomination contest. There is nothing to suggest, however, that the future of Plaintiff would become more certain if the court grants the requested relief; because it cannot be presumed that Defendants will not persist in their desire to take over management of Plaintiff corporation and simply return next year to nominate a second set of directors in order to obtain control of the company. As Plaintiff cannot show that it will suffer irreparable harm if the requested relief is not granted, the court must deny Plaintiff's motion for a temporary restraining order and preliminary injunctive relief. 2 The court recognizes the importance of stockholders' rights to express themselves through the voting process. It appears to this court that at least one substantial investor believes that more can be accomplished with the resources of Plaintiff corporation than present management has been able to achieve. This is a point of view that corporate shareholders should be able to hear and consider for the annual meeting. Defendants' attempt to take over Plaintiff corporation was motivated by this belief, but that takeover option has been foreclosed by state law and amended bylaw 3.4. Nevertheless, the final foreclosure of Defendants' takeover option was not made until after the time for shareholders to submit business to be considered at the annual meeting had passed. See App. B, Bylaw 2.13. In deference to the right of stockholders to express their views as to the conduct of corporate matters through the vehicle of their vote, the court has resolved to allow Defendants to present proposals to Plaintiff for business they would like to bring before the annual meeting in June 2004, essentially waiving the time strictures contained in Bylaw 2.13. Plaintiff is to allow Defendants to make proposals for matters to be conducted at the annual meeting, provided Defendants' proposals are made within five (5) days of the date of entry of this order. III. CONCLUSION The court DENIES Plaintiff's motion for a temporary restraining order and preliminary injunction [2-1]. The court DENIES AS MOOT Plaintiff's motion to expedite consideration of the same [3-1]. Defendants may submit alternative proposals for business to be discussed at the June 2004 annual shareholder meeting provided they are submitted no later than five (5) days of the date of entry of this order. IT IS SO ORDERED this 29th day of April 2004. ------------------------ J. OWEN FORRESTER UNITED STATES DISTRICT JUDGE 3 EX-99 3 srzrelease.txt PRESS RELEASE FOR IMMEDIATE RELEASE For information contact MacKenzie Partners, Inc.: Lawrence E. Dennedy or Robert C. Marese - (800) 322-2885 GEORGIA FEDERAL COURT DENIES INTERCEPT'S REQUEST FOR INJUNCTIVE RELIEF; GRANTS RELIEF REQUESTED BY JANA Atlanta, Georgia -- April 29, 2004 - JANA Partners LLC ("JANA") announced today that the Atlanta Division of the United States District Court for the Northern District of Georgia has denied a request for a temporary restraining order and preliminary injunction sought by InterCept, Inc. (NASDAQ - ICPT) ("InterCept") to prevent JANA from nominating four directors at InterCept's 2004 Annual Meeting. JANA also announced that, consistent with the court's opinion, to avoid uncertainty at the Annual Meeting and to facilitate an orderly election, it would nominate only two individuals for election, Marc Weisman and Kevin Lynch, to replace incumbent directors John W. Collins and Arthur G. Weiss. Additionally, JANA announced that the court granted JANA's request for alternate relief, allowing JANA to present shareholder proposals at the Annual Meeting, the details of which JANA said it intends to present to InterCept shortly. "We are gratified that the court today granted our request to bring new proposals for shareholder rights forward at InterCept's annual meeting," JANA Managing Member Barry S. Rosenstein said today. "This is an important step in our goal of bringing shareholder democracy to InterCept." BACKGROUND In October, 2003, InterCept announced that its Chairman and Chief Executive Officer, John W. Collins, intended to make an offer to take InterCept private, and that the InterCept board of directors had formed a special independent committee to evaluate the possible sale of the Company. On December 12, 2003, InterCept announced that Mr. Collins would not be making an offer but that "several third parties initiated contact with the special committee and expressed interest in InterCept, and the special committee will be evaluating those indications of interest." Less than two months later, InterCept's board of directors terminated the sale process and dissolved the special committee. Following the decision not to continue with the sale process, on February 13, 2004, two of the three independent directors on the special committee, Boone A. Knox (the then Vice Chairman) and Jon R. Burke, resigned as a result of the decision. If elected, the directors nominated by JANA would propose to immediately engage a nationally recognized investment banking firm to conduct a full and fair review of the best value-maximizing options for shareholders, including sale of the company. CERTAIN INFORMATION CONCERNING PARTICIPANTS JANA Partners LLC manages securities portfolios with assets of approximately $1.4 billion and currently owns 1,639,937 shares (approximately 8%) of the common stock of InterCept. The following individuals have consented to being nominated by JANA Partners LLC for election as directors of InterCept at InterCept's 2004 Annual Meeting of Shareholders. o Marc Weisman, 51, has been a Principal of Sagaponack Partners, L.P. for more than the past five years. o Kevin J. Lynch, 35, has been a Principal of JANA Partners LLC since 2001. From 1999 to 2001, Mr. Lynch was an Investment Analyst at Sagaponack Partners, L.P. The Managing Directors of JANA Partners are Barry S. Rosenstein and Gary Claar. Barry S. Rosenstein, 45, has been a Managing Member of JANA Partners LLC since 2001. From 1993 to 2001, Mr. Rosenstein was a Principal of Sagaponack Partners, L.P., a private equity fund. Gary Claar, 37, has been a Managing Member of JANA Partners LLC since 2001. From 1999 to 2001, Mr. Claar was a Principal of Marathon Advisors LLC, an investment fund. The principal business address of Mr. Rosenstein and Mr. Lynch is 201 Post Street, Suite 1000, San Francisco, California 94108. The principal business address of Mr. Weisman is 645 Fifth Avenue, New York, New York 10022. The principal business address of Mr. Claar is 200 Park Avenue, New York, New York 10166. Mr. Weisman and Mr. Lynch have each agreed, if elected, to serve as a director of InterCept. JANA Partners does not expect that any of its nominees will be unable to stand for election or serve as a director, but if any vacancy in JANA Partners' slate occurs for any reason (including if InterCept makes or announces any changes to its bylaws or takes or announces any other action that has, or if completed would have, the effect of disqualifying any or all of JANA Partners' nominees), JANA Partners will vote for the substitute candidate(s) nominated by JANA Partners in compliance with the rules of the SEC and any other applicable law and, if applicable, InterCept's bylaws. JANA Partners LLC intends to file a proxy statement and other relevant documents with the SEC in support of the election of Messrs. Lynch and Weisman to the InterCept board. INVESTORS ARE URGED TO READ THE PROXY STATEMENT WHEN IT BECOMES AVAILABLE AND ANY OTHER RELEVANT DOCUMENTS FILED WITH THE SEC BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION. You will be able to obtain the documents free of charge at the SEC's website, www.sec.gov. JANA Partners LLC and Messrs. Lynch and Weisman may be deemed to be participants in the solicitation of proxies from the shareholders of InterCept in connection with the annual meeting. Information about these participants will be set forth in the proxy statement filed by JANA Partners LLC with the SEC. Investors may obtain additional information by reading the proxy statement when it becomes available. 2 -----END PRIVACY-ENHANCED MESSAGE-----