UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
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
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Definitive Proxy Statement |
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Definitive Additional Materials |
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Soliciting Material Pursuant to Rule 14a-11(c) or Rule 14a-12 |
INTERCEPT, INC.
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(Name of Registrant as Specified in Its Charter)
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[On InterCept Letterhead]
May 20, 2004
JANA Master Fund, Ltd.
200 Park Avenue, Suite 3900
New York, New York 10166
Attention: Mr. Barry S. Rosenstein
JANA Partners LLC
200 Park
Avenue, Suite 3900
New York, New York 10166
Attention: Mr. Barry S. Rosenstein
Dear Mr. Rosenstein:
Based
on our review of your preliminary proxy statement, we understand that during the last two
and a half months JANA Partners LLC and JANA Master Fund, Ltd. (collectively
“JANA”) have invested in excess of $22 million in, and have acquired
approximately 8.9% of the outstanding shares of, the common stock of InterCept. In light
of the significant investment made by JANA in InterCept and in an effort to provide JANA
with a voice on the InterCept board of directors and to reach a consensual resolution of
the pending proxy contest and federal court litigation, the InterCept board of directors
wishes to make a proposal to JANA in the spirit of settlement and compromise. We believe
this proposal recognizes the significant investment made by JANA in InterCept and, at the
same time, maintains a board of directors that represents the interests of all InterCept
shareholders.
The
terms of our settlement proposal are as follows:
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1. |
InterCept and JANA would agree to dismiss the currently pending federal court
litigation and to jointly support a slate of directors at the 2004 annual
meeting. |
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Effective at the 2004 annual meeting of shareholders, we would increase the size
of the board of directors from six to nine members by adding one board position
to each of Classes I, II and III. |
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At the 2004 annual meeting, our board would nominate (a) existing directors John
W. Collins and Arthur G. Weiss to fill the two existing Class III director
seats, (b) your nominee Kevin J. Lynch to fill the newly created Class I
director seat and (c) your nominee Marc Weisman to fill the newly created Class
II director seat. In addition, we are also |
JANA Master Fund, Ltd.
JANA Partners LLC
May 20, 2004
Page 2
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prepared to request that Sprout
Capital Partners, L.P., the principal holder of our preferred stock, nominate a
representative to fill the newly created Class III director seat. Sprout has the
right to have a named individual nominated for election as a director at our
annual meeting, and we believe that Sprout would exercise that right in these
circumstances. If Sprout elects not to exercise its right at this time, however,
we will have a vacancy in the third Class III Board seat. Our plan would be to
keep this seat open to allow Sprout to exercise its right at a later date |
If
the foregoing proposal is acceptable, we contemplate that InterCept and JANA would enter
into a definitive settlement agreement that would, among other things, provide for the
dismissal of the pending federal court litigation and your agreement to withdraw your
shareholder proposals and to refrain from soliciting proxies for the 2004 annual meeting.
This
proposal allows JANA the opportunity to have more than proportionate representation on the
InterCept board, and would permit InterCept and JANA to avoid the cost and disruption
associated with the proxy contest and the pending federal court litigation. JANA’s
two board representatives have the opportunity to join a very independent, shareholder
oriented board. This proposal contemplates:
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A nine member board with only one management representative and eight outside directors. |
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A board with three new directors representing two of our major shareholders, JANA and
Sprout, and three other new independent directors who joined the board this spring, none
of whom had any prior relationship with InterCept management. |
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A board having an appropriate mix of business and industry experience, public company
board experience, ownership of our capital stock and independence. |
We are confident that this board
would be able to represent the interests of all shareholders and to direct the affairs of
the Company in a manner that maximizes shareholder value.
So
that we may move forward expeditiously with finalizing proxy materials for the 2004 annual
meeting scheduled for June 24, 2004, we would appreciate your response to this settlement
proposal on or before 5:00 p.m. on May 21, 2004.
JANA Master Fund, Ltd.
JANA Partners LLC
May 20, 2004
Page 3
Should
you have any questions regarding this proposal, please don’t hesitate to contact me
or our counsel, Jack Hardin of Rogers & Hardin.
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By: /s/ John W. Collins
Chairman and
Chief Executive Officer
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JWC/cjd
cc: Marc Weingartern, Esq
InterCept strongly advises all of
its shareholders to read the proxy statement when it is available because it will contain
important information. InterCept will send its proxy statement, along with its Annual
Report, to all shareholders of record, and the proxy statement will also be available at
no charge on the SEC’s web site at http://www.sec.gov. In addition, InterCept will
provide copies of the proxy statement and Annual Report without charge upon request.
Requests for copies should be directed to the participants’ proxy solicitor,
Innisfree M&A Incorporated, at its toll-free number: 888-750-5834.
The participants in the proxy
solicitation are InterCept and its directors. Certain of InterCept’s
executive officers may also be deemed to be participants. These individuals and their
positions with InterCept are as listed in the following table:
John W. Collins, Chairman of the Board and Chief
Executive Officer
Mark
Hawn, Director
John D. Schneider, Jr., Director
Glenn W. Sturm, Director
James A. Verbrugge, Director
Arthur G. Weiss, Director
G. Lynn Boggs, President and Chief Operating Officer
Jonathan R. Coe, Vice President and General Counsel
Carole M. Collins, Treasurer, Vice President of Corporate
Governance/Risk
Additional information regarding
these persons (a) is included in InterCept’s preliminary proxy statement filed
with the SEC on May 5, 2004 under the headings Proposal No. 1 – Election of
Directors, Executive Compensation, Employment Agreements, Security Ownership and
Information Related to Possible Proxy Contest; and (b) will be included in
InterCept’s definitive proxy statement under those or similar headings when it is
available.