<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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THE INTERCEPT GROUP, INC.
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(Exact Name of Registrant as Specified in Its Charter)
Georgia 58-2237359
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(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
3150 Holcomb Bridge Road, Suite 200
Norcross, Georgia 30071
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(Address of Principal Executive Offices)
The InterCept Group, Inc. Amended and Restated 1996 Stock Option Plan
---------------------------------------------------------------------
ProVesa, Inc. 1994 Stock Option Plan
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(Full Title of the Plans)
John W. Collins
Chief Executive Officer
The InterCept Group, Inc.
3150 Holcomb Bridge Road, Suite 200
Norcross, Georgia 30071
(770) 840-2700
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(Name, address, and telephone number of agent for service)
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Copies Requested to:
Susan L. Spencer, Esq.
Nelson Mullins Riley & Scarborough, L.L.P.
999 Peachtree Street, N.E., Suite 1400
Atlanta, Georgia 30309
(404) 817-6000
(404) 817-6050 (Fax)
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<TABLE>
<CAPTION>
==========================================================================================================
TITLE OF EACH CLASS AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
OF SECURITIES TO BE REGISTERED(1) OFFERING PRICE AGGREGATE OFFERING REGISTRATION FEE
REGISTERED PER SHARE PRICE
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no par value 556,279 $7.31(1) $4,066,399(1) $1,130
- ----------------------------------------------------------------------------------------------------------
Common Stock, no par value 236,059 $2.16(2) $ 509,887(2) $ 142
- ----------------------------------------------------------------------------------------------------------
Common Stock, no par value 42,106 $2.37(2) $ 99,791(2) $ 28
- ----------------------------------------------------------------------------------------------------------
Common Stock, no par value 506,189 $7.00(2) $3,543,323(2) $ 985
- ----------------------------------------------------------------------------------------------------------
Common Stock, no par value 200,000 $7.70(2) $1,540,000(2) $ 428
- ----------------------------------------------------------------------------------------------------------
Total 1,540,633 -- $9,759,400 $2,713
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</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rules 457 (c) and (h) on the basis of the average of the high
and low prices of the Common Stock on January 6, 1998, as reported by
the American Stock Exchange.
(2) In accordance with Rule 457(h), the registration fee is based upon the price
at which the options may be exercised.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents listed below are hereby incorporated by reference into this
registration statement ("Registration Statement"), and all documents
subsequently filed by InterCept pursuant to Sections 13(a), 13(c), 14 and 15(d)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act") shall be
deemed to be incorporated by reference in this Registration Statement and to be
a part hereof from the date of filing of such documents:
(a) InterCept's Prospectus filed with the Securities and Exchange
Commission (the "Commission") pursuant to Rule 424(b) (the "424(b)
Prospectus," which is included within InterCept's Registration
Statement on Form S-1 (File No. 333-47197) as declared effective by
the Commission on June 9, 1998) promulgated by the Commission under
the Securities Act of 1933, as amended (the "Securities Act");
(b) the description of the Common Stock contained in the section titled
"Description of Capital Stock" on pages 56-59 of the 424(b)
Prospectus, which description is also incorporated by reference into
the Company's Registration Statement on Form 8-A under the Exchange
Act; and
(c) all other reports filed with the Commission pursuant to Section 13(a)
or 15(d) of the Act since June 9, 1998.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the issuance of the securities being registered hereby
has been passed upon by the law firm of Nelson Mullins Riley & Scarborough,
L.L.P., counsel for InterCept. As of January 1, 1998, Glenn W. Sturm, a
partner of this firm, owns 373,865 shares of Common Stock and serves as a
director of InterCept. In addition, as of January 1, 1998 other members of
this firm beneficially owned an aggregate of 6,316 shares of Common Stock and
had options to purchase 48,554 shares of Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Articles of Incorporation of InterCept eliminate, subject to
certain limited exceptions, the personal liability of a director to InterCept or
its shareholders for monetary damage for any breach of duty as a director.
There is no elimination of liability for (i) a breach of duty involving
appropriation of a business opportunity of InterCept; (ii) an act or omission
which involves intentional misconduct or a knowing violation of law; (iii) any
transaction from which the director derives an improper personal benefit; or
(iv) as to any payments of a dividend or any other type of distribution that is
illegal under Section 14-2-832 of the Georgia Business Corporation Code (the
"GBCC"). In addition, if at any time the GBCC is amended to authorize further
elimination or limitation of the personal liability of a director, then the
liability of each director shall be eliminated or limited to the fullest extent
permitted by such
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provisions, as so amended, without further action by the shareholders, unless
the provisions of the GBCC require such action. The provision does not limit the
right of InterCept or its shareholders to seek injunctive or other equitable
relief not involving payments in the nature of monetary damages.
InterCept's bylaws contain certain provisions which provide
indemnification to directors that is broader than the protection expressly
mandated in Sections 14-2-852 and 14-2-857 of the GBCC. To the extent that a
director or officer of InterCept has been successful, on the merits or
otherwise, in the defense of any action or proceeding brought by reason of the
fact that he or she was a director or officer of InterCept, Sections 14-2-852
and 14-2-857 of the GBCC would require InterCept to indemnify such person
against expenses (including attorney's fees) actually and reasonably incurred in
connection therewith. The GBCC expressly allows InterCept to provide for
greater indemnification rights to its officers and directors, subject to
shareholder approval.
The indemnification provisions in InterCept's bylaws require InterCept to
indemnify and hold harmless any director who was or is a party or is threatened
to be made a party, to any threatened, pending or completed action, suit or
proceeding whether civil, criminal, administrative or investigative (including
any action or suit by or in the right of InterCept) because he or she is or was
a director of InterCept, against expenses (including, but not limited to,
attorney's fees and disbursements, court costs and expert witness fees), and
against judgments, fines, penalties, and amounts paid in settlement incurred by
him or her in connection with the action, suit or proceeding. Indemnification
would be disallowed under any circumstances where indemnification may not be
authorized by action of the board of directors, the shareholders or otherwise.
The board of directors of InterCept also has the authority to extend to
officers, employees and agents the same indemnification rights held by
directors, subject to all the accompanying conditions and obligations.
Indemnified persons would also be entitled to have InterCept advance expenses
prior to the final disposition of the proceeding. If it is ultimately
determined that they are not entitled to indemnification, however, such amounts
would be repaid. Insofar as indemnification for liability arising under the
Securities Act may be permitted to officers and directors of InterCept pursuant
to the foregoing provisions, InterCept has been told that in the opinion of the
Commission, such indemnification is against public policy and is, therefore,
unenforceable.
InterCept has entered into separate indemnification agreements with each of
its directors and executive officers, whereby it has agreed, among other things,
to provide for indemnification and advancement of expenses in a manner and
subject to terms and conditions similar to those set forth in the bylaws. These
agreements also provide that InterCept shall purchase and maintain liability
insurance for the benefit of its directors and executive officers. These
agreements may not be abrogated by action of the shareholders. There is no
pending litigation or proceeding involving a director, officer, employee or
other agent of InterCept as to which indemnification is being sought, nor is
InterCept aware of any pending or threatened litigation that may result in
claims for indemnification by any director, officer, employee or other agent.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
The following exhibits are filed with this Registration Statement:
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
------- ----------------------
<C> <S>
4.1 - The InterCept Group, Inc. Amended and Restated 1996 Stock Option Plan
(incorporated by reference to Exhibit 10.1 of InterCept's Registration
Statement on Form S-1 (File No. 333-47197) as declared effective by the
Securities and Exchange Commission on June 9, 1998 (the "Form S-1 Registration
Statement))
4.2 - Form of Stock Option Agreement under The InterCept Group, Inc. Amended and
Restated 1996 Stock Option Plan (incorporated by reference to Exhibit 10.2 to the
Form S-1 Registration Statement)
4.3 - ProVesa, Inc. 1994 Stock Option Plan (incorporated by reference to Exhibit 10.3
to the Form S-1 Registration Statement)
4.4 - Stock Option Agreement by and between InterCept and Donny R. Jackson dated
January 14, 1997 (incorporated by reference to Exhibit 10.8 of the Form S-1
Registration Statement)
4.5 - Stock Option Agreement dated as of February 1, 1998 by and between InterCept
and Scott R. Meyerhoff (incorporated by reference to Exhibit 10.9 of the Form
S-1 Registration Statement)
4.6 - Stock Option Agreement dated as of February 24, 1997 by and between InterCept
and Michael R. Boian (incorporated by reference to Exhibit 10.10 of the Form
S-1 Registration Statement)
4.7 - Form of Stock Option Agreement for Directors under The InterCept Group, Inc.
Amended and Restated 1996 Stock Option Plan (incorporated by reference to Exhibit
10.24 of the Form S-1 Registration Statement)
5.1 - Legal opinion of Nelson Mullins Riley & Scarborough, L.L.P.
23.1 - Consent of Arthur Andersen LLP
23.2 - Consent of Nelson Mullins Riley & Scarborough, L.L.P. (contained in their
opinion filed as Exhibit 5.1)
24 - Power of Attorney (contained on the signature page of this Registration
Statement)
</TABLE>
ITEM 9. UNDERTAKINGS.
InterCept hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
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(ii) To reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in this Registration Statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20 percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement
or any material change to such information in this Registration
Statement;
provided, however, that the undertakings set forth in paragraphs (i) and
-------- -------
(ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission pursuant to Section 13
or 15(d) of the Exchange Act that are incorporated by reference in this
Registration Statement;
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof;
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of
the offering.
InterCept hereby undertakes that, for purposes of determining any liability
under the Securities Act, each filing of its Annual Report pursuant to Section
13(a) or 15(d) of the Exchange Act that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of InterCept
pursuant to the foregoing provisions, or otherwise, InterCept has been advised
that in the opinion of the Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by InterCept of expenses incurred or paid by a director, officer or
controlling person of InterCept in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, InterCept will, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Atlanta, State of Georgia, on this 7th day of
January, 1999.
THE INTERCEPT GROUP, INC.
By: /s/ John W. Collins
-------------------------
John W. Collins
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each of the undersigned officers and
directors of The InterCept Group, Inc., a Georgia corporation, for himself and
not for one another, does hereby constitute and appoint John W. Collins and
Donny R. Jackson, and each of them, a true and lawful attorney in his name,
place and stead, in any and all capacities, to sign his name to any and all
amendments, including post-effective amendments, to this Registration Statement,
and to sign a Registration Statement pursuant to Section 462(b) of the
Securities Act of 1933, and to cause the same (together with all Exhibits
thereto) to be filed with the Securities and Exchange Commission, granting unto
said attorneys and each of them full power and authority to do and perform any
act and thing necessary and proper to be done in the premises, as fully to all
intents and purposes as the undersigned could do if personally present, and each
of the undersigned for himself hereby ratifies and confirms all that said
attorneys or any one of them shall lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
- ---------- ----- ----
<S> <C> <C>
/s/ John W. Collins
- -------------------------------------- Chairman of the Board of Directors and January 7, 1999
John W. Collins Chief Executive Officer (Principal
Executive Officer)
/s/ Donny R. Jackson
- -------------------------------------- President, Chief Operating Officer and January 7, 1999
Donny R. Jackson Director
/s/ Scott R. Meyerhoff
- -------------------------------------- Chief Financial Officer and Secretary January 7, 1999
Scott R. Meyerhoff (Principal Financial and Accounting
Officer)
/s/ Jon R. Burke
- -------------------------------------- Director January 7, 1999
Jon R. Burke
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ Boone A. Knox
- -------------------------------------- Director January 6, 1999
Boone A. Knox
/s/ Bruce P. Leonard
- -------------------------------------- Director January 7, 1999
Bruce P. Leonard
- ------------------------------------- Director
Glenn W. Sturm
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Exhibit
------- -------
<C> <S>
4.1 - The InterCept Group, Inc. Amended and Restated 1996 Stock Option Plan
(incorporated by reference to Exhibit 10.1 of InterCept's Registration
Statement on Form S-1 (File No. 333-47197) as declared effective by the
Securities and Exchange Commission on June 9, 1998 (the "Form S-1 Registration
Statement))
4.2 - Form of Stock Option Agreement under The InterCept Group, Inc. Amended and
Restated 1996 Stock Option Plan (incorporated by reference to Exhibit 10.2 to the
Form S-1 Registration Statement)
4.3 - ProVesa, Inc. 1994 Stock Option Plan (incorporated by reference to Exhibit 10.3
to the Form S-1 Registration Statement)
4.4 - Stock Option Agreement by and between InterCept and Donny R. Jackson dated
January 14, 1997 (incorporated by reference to Exhibit 10.8 of the Form S-1
Registration Statement)
4.5 - Stock Option Agreement dated as of February 1, 1998 by and between InterCept
and Scott R. Meyerhoff (incorporated by reference to Exhibit 10.9 of the Form
S-1 Registration Statement)
4.6 - Stock Option Agreement dated as of February 24, 1997 by and between InterCept
and Michael R. Boian (incorporated by reference to Exhibit 10.10 of the Form
S-1 Registration Statement)
4.7 - Form of Stock Option Agreement for Directors under The InterCept Group, Inc.
Amended and Restated 1996 Stock Option Plan (incorporated by reference to Exhibit
10.24 of the Form S-1 Registration Statement)
5.1 - Legal opinion of Nelson Mullins Riley & Scarborough, L.L.P.
23.1 - Consent of Arthur Andersen LLP
23.2 - Consent of Nelson Mullins Riley & Scarborough, L.L.P. (contained in their
opinion filed as Exhibit 5.1)
24 - Power of Attorney (contained on the signature page of this Registration
Statement)
</TABLE>
<PAGE>
EXHIBIT 5.1
[LETTERHEAD OF NELSON MULLINS RILEY & SCARBOROUGH LLP APPEARS HERE]
January 7, 1999
The InterCept Group, Inc.
3150 Holcomb Bridge Road, Suite 200
Norcross, Georgia 30071
Gentlemen:
We have acted as counsel to The InterCept Group, Inc. (the "Company") in
connection with the filing of a Registration Statement on Form S-8 (the
"Registration Statement") under the Securities Act of 1933, covering the
offering of up to 1,540,633 shares (the "Shares") of the Company's Common Stock,
no par value, that may be issued pursuant to The InterCept Group, Inc. Amended
and Restated 1996 Stock Option Plan and the ProVesa, Inc. 1994 Stock Option Plan
(collectively, the "Plans"). In connection therewith, we have examined such
corporate records, certificates of public officials and other documents and
records as we have considered necessary or proper for the purpose of this
opinion.
This opinion is limited by and is in accordance with the January 1,
1992, edition of the Interpretive Standards applicable to Legal Opinions to
Third Parties in Corporate Transactions adopted by the Legal Opinion Committee
of the Corporate and Banking Law Section of the State Bar of Georgia.
Based on the foregoing, and having regard to legal considerations which
we deem relevant, we are of the opinion that the Shares covered by the
Registration Statement, which may be issued pursuant to the Plans, will, when
issued in accordance with the Plans, be legally issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption "Legal
Matters" in the Prospectus contained in the Registration Statement.
Very truly yours,
NELSON MULLINS RILEY & SCARBOROUGH, L.L.P.
By: /s/ Robert D. Pannell
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EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-8 of our report dated
February 27, 1998 (except with respect to the matter discussed in Note 14 for
which the date is April 28, 1998) for The InterCept Group, Inc. and
subsidiaries, our report dated February 27, 1998 for ProVesa, Inc. and
subsidiaries, our report dated February 27, 1998 for FiNet, Inc., our report
dated February 27, 1998 for Bank Services Corporation, our report dated April
27, 1998 for Data Services Corporation, each included in The InterCept Group,
Inc.'s registration statement on Form S-1, File Number 333-47197; our report
dated October 16, 1998 on Nova Financial Corporation Data Processing Business
included in The InterCept Group, Inc.'s current report on Form 8-K dated August
4, 1998; and our report dated November 20, 1998 on Advance Data Partnership
included in The InterCept Group, Inc.'s current report on Form 8-K dated
September 30, 1998, and to all references to our Firm included in this
registration statement.
/s/ Arthur Andersen LLP
Atlanta, Georgia
January 8, 1999
