SCHEDULE 14A
(RULE 14A-101)
INFORMATION REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(A)
OF THE SECURITIES EXCHANGE ACT OF 1934
Filed by the Registrant |_|
Filed by a Party other than the Registrant |X|
Check the appropriate box:
|_| Preliminary Proxy Statement
|_| Confidential, for Use of the
Commission Only (as permitted by
Rule 14a-6(e)(2))
|_| Definitive Proxy Statement
|_| Definitive Additional Materials
|X| Soliciting Material Pursuant to Rule 14a-12
INTERCEPT, INC.
(Name Of Registrant As Specified In Its Charter)
JANA PARTNERS LLC
(Name Of Person(s) Filing Proxy Statement, If Other Than The Registrant)
Payment of Filing Fee (Check the appropriate box):
|X| No fee required.
|_| Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
(1) Title of each class of securities to which transaction applies:
(2) Aggregate number of securities to which transaction applies:
(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee
is calculated and state how it was determined):
(4) Proposed maximum aggregate value of transaction:
(5) Total fee paid:
|_| Fee paid previously with preliminary materials.
|_| Check box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number, or
the Form or Schedule and the date of its filing.
(1) Amount Previously Paid:
(2) Form, Schedule or Registration Statement No.:
(3) Filing Party:
(4) Date Filed:
FOR IMMEDIATE RELEASE
For information contact MacKenzie Partners, Inc.:
Lawrence E. Dennedy or Robert C. Marese - (800) 322-2885
JANA PARTNERS LLC ANNOUNCES OPPOSITION SLATE OF DIRECTOR
NOMINEES FOR INTERCEPT, INC.
New York, New York -- April 12, 2004 - JANA Partners LLC announced today that it
has notified InterCept, Inc. (NASDAQ - ICPT) of its intention to nominate an
opposition slate of four directors for election to the board of directors at
InterCept's 2004 Annual Meeting of Shareholders. If elected, such directors
would constitute a majority of InterCept's six-person board. JANA owns
approximately 8% of InterCept's outstanding common stock.
If elected to the InterCept board, JANA Partners' nominees intend 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.
In his letter to John W. Collins, Chairman and Chief Executive Officer of
InterCept, JANA Partners Managing Member Barry S. Rosenstein stated:
"We are pursuing this course of action because we believe that the actions
taken by the Board of Directors of InterCept in connection with the
recently proposed and aborted sale process for the Company were not in the
best interest of the Company's shareholders. These actions, which caused
the abrupt resignations of two of the Board's independent members, lead us
to conclude that the Company's current leadership must change. Therefore,
we propose to replace a majority of the Board with individuals who are
neither members of management nor hand-picked by management, have no
interest other than maximizing shareholder value, and will act in
accordance with their fiduciary duties as directors."
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 of the board
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 of InterCept) and Jon R. Burke, resigned as a result of the board of
directors' decision not to pursue a sale.
Summarizing these events, Mr. Rosenstein wrote in today's letter:
"Essentially, Mr. Collins, your Board entertained a sale process when you
proposed to buy the Company, but abruptly shut that process down, contrary
to the determination of the special committee, when serious potential
buyers surfaced."
The full text of the letter sent to InterCept today is attached as an exhibit to
this press release.
CERTAIN INFORMATION CONCERNING PARTICIPANTS
JANA Partners LLC manages hedge fund portfolios with assets of approximately
$1.4 billion. JANA Partners currently owns 1,619,937 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:
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.
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.
Marc Weisman, 51, has been a Principal of Sagaponack Partners, L.P. for more
than the past five years.
JANA Partners LLC intends to file a proxy statement and other relevant documents
with the SEC in support of the election of Messrs. Rosenstein, Claar, 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. Rosenstein, Claar, 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 regarding the interests of such
participants by reading the proxy statement when it becomes available.
April 12, 2004
John W. Collins
Chairman/Chief Executive Officer
InterCept, Inc.
3150 Holcomb Bridge Road
Suite 200
Norcross, GA 30071
Dear Mr. Collins,
JANA Partners LLC manages hedge fund portfolios with assets of approximately
$1.4 billion. We currently own 1,619,937 shares (approximately 8.0%) of the
common stock of InterCept, Inc. ("InterCept" or the "Company").
As you are aware, we have notified the Company of our intent to run a slate of
four directors in opposition to the Company's slate at the upcoming annual
meeting. We are pursuing this course of action because we believe that the
actions taken by the Board of Directors of InterCept in connection with the
recently proposed and aborted sale process for the Company were not in the best
interest of the Company's shareholders. These actions, which caused the abrupt
resignations of two of the Board's independent members, lead us to conclude that
the Company's current leadership must change. Therefore, we propose to replace a
majority of the Board with individuals who are neither members of management nor
hand-picked by management, have no interest other than maximizing shareholder
value, and will act in accordance with their fiduciary duties as directors.
Simply put, we would like to see the Company sold and believe that an
overwhelming majority of the shareholders will concur.
While you have displayed a troubling lack of openness and clarity regarding the
reasons for abandoning the sale process, the following is our understanding of
what occurred:
John W. Collins
April 12, 2004
Page 2
On October 30, 2003 (while reporting yet another "earnings miss"), the Company
announced that you intended to make an offer to take InterCept private. The
Board formed a special independent committee to evaluate the possible sale of
the Company. It is our further understanding that several serious potential
buyers then expressed significant interest to the special committee in
purchasing InterCept at a premium to both the Company's stock price and to the
price you were considering for your offer. On December 12, 2003, the Company
announced that you 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, the Board of Directors terminated the sale process
and dissolved the special committee. We have been told by at least one
interested bidder that neither the Company nor the special committee ever even
responded to their indication of interest at a substantial premium.
Following the decision of the Board 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 of InterCept) and Jon R. Burke,
resigned. In his resignation letter, Mr. Knox stated: "The Special Committee,
after carefully considering the advice of financial advisors determined that the
Company should permit selected interested and capable strategic buyers to
conduct due diligence and negotiations to evaluate a possible sale of the
Company. The Board of Directors has determined to discontinue this process. As a
result of this decision, I hereby resign as a director, Vice Chairman and member
of various committees of the Company and its subsidiaries effective February 13,
2004 and request that this letter and the forgoing reasons for my resignation be
disclosed publicly." Mr. Burke's resignation letter was similar in its content.
Thus, the Board OVERRULED its own special independent committee's recommendation
to pursue a sale, and cut off the process.
The Company has not offered its shareholders a satisfactory explanation for this
extraordinary sequence of events. In fact, when asked about this topic on your
most recent earnings call, you indicated that you were not prepared to discuss
it.
Essentially, Mr. Collins, your Board entertained a sale process when you
proposed to buy the Company, but abruptly shut that process down, contrary to
the determination of the special committee, when serious potential buyers
surfaced. Two independent directors quit as a result of the Board's decision,
and have been replaced with interim directors who were selected by management
and whose qualifications and independence have not been established.
Given Sarbanes-Oxley and the heightened current focus on the accountability of
directors and officers of public companies to their shareholders, this behavior
is all the more astounding. Having invested in hundreds of companies, we have
John W. Collins
April 12, 2004
Page 3
never had to resort to this tactic of running a competing proxy as most
management teams strive to do right by their shareholders. However, based upon
the conduct we have described here, not to mention the Company losses,
"impairment charges" and other performance matters documented in the Company's
own public filings, we believe that it is imperative that a majority of the
current Board be replaced by our nominees, who are pledged to act solely in the
best interest of the shareholders. We believe that we will find overwhelming
concurrence with our views among the Company's shareholder base.
If our nominees are elected, they will promptly engage a nationally recognized
investment banking firm to conduct a full and fair review of the best
value-maximizing options for shareholders. We anticipate that this will result
in an auction of the Company in which multiple credible purchasers will
participate.
Be assured that we are fully prepared to utilize our considerable financial
resources to assure that there is no interference with a fair proxy process and
exercise of the shareholder voting franchise. We remind you that our firm's
financial strength exceeds InterCept's by many multiples.
Please respond to our nomination and stocklist demands in a timely fashion. If
you wish to discuss these matters further you may reach me at 415-989-7770.
Sincerely,
JANA Partners LLC
/s/ Barry S. Rosenstein
-----------------------------
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