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As filed with the Securities and Exchange Commission on December 19, 2000
Registration No.
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________________
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
____________________________
THE INTERCEPT GROUP, INC.
(Exact Name of Registrant as Specified in its Charter)
Georgia 58-2237359
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
____________________________
3150 Holcomb Bridge Road, Suite 200
Norcross, Georgia 30071
(770) 248-9600
(770) 242-6803 (facsimile)
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
____________________________
John W. Collins
Chief Executive Officer
The InterCept Group, Inc.
3150 Holcomb Bridge Road, Suite 200
Norcross, Georgia 30071
(770) 248-9600
(770) 242-6803 (facsimile)
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent for Service)
____________________________
Copies to:
Neil E. Grayson, Esq.
William J. Ching, Esq.
Nelson Mullins Riley & Scarborough, L.L.P.
First Union Plaza, Suite 1400
999 Peachtree Street, N.E.
Atlanta, Georgia 30309
(404) 817-6000
(404) 817-6050 (facsimile)
____________________________
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to a dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for any offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_] ________________
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]___________________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. [_]
____________________________
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CALCULATION OF REGISTRATION FEE
====================================================================================================
Title of Shares Amount To Be Proposed Maximum Proposed Maximum Amount Of
To Be Registered Registered Aggregate Price Aggregate Offering Registration Fee
Per Share(1) Price(1)
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<S> <C> <C> <C> <C>
Common stock, no par value.. 350,000 $25.81 $9,033,500 $2,385
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</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) under the Securities Act of 1933, based upon
the average of the high and low prices reported on December 15, 2000 as
reported on the Nasdaq Stock Market.
____________________________
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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SUBJECT TO COMPLETION, DATED December 19, 2000
THE INTERCEPT GROUP, INC.
350,000 Shares
Common Stock
The shareholder of The InterCept Group, Inc. identified in this prospectus
may offer and sell these shares from time to time. See "Selling Shareholder."
The selling shareholder acquired the shares on August 29, 2000 in connection
with our acquisition of Advanced Computer Enterprises, Incorporated.
The selling shareholder will receive all of the net proceeds from the sale
of these shares and will pay all underwriting discounts and selling commissions,
if any, applicable to the sale of these shares. We will not receive any of the
proceeds from the sale of the shares.
Our common stock is quoted on the Nasdaq National Market under the symbol
"ICPT." On December 15, 2000, the last reported sale price of our common stock
was $25.81 per share.
____________________________
Investing in our common stock involves many risks. See "Risk Factors" on
page 4 for a discussion of these risks.
____________________________
The Securities and Exchange Commission and state securities regulators have
not approved or disapproved of these securities or determined if this prospectus
is truthful or complete. Any representation to the contrary is a criminal
offense.
The date of this prospectus is , 2000
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You should rely only on the information contained in this prospectus.
Neither the selling shareholder nor we have authorized anyone to provide you
with information different from that contained in this prospectus. The selling
shareholder is offering to sell, and seeking offers to buy, shares of InterCept
common stock only in jurisdictions where offers and sales are permitted. The
information contained in this prospectus is accurate only as of the date of this
prospectus, regardless of the time of delivery of this prospectus or of any sale
of the shares.
____________________________
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TABLE OF CONTENTS
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Page
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<S> <C>
The InterCept Group....................................................... 3
Risk Factors.............................................................. 4
Forward Looking Statements................................................ 15
Use of Proceeds........................................................... 16
Selling Shareholder....................................................... 16
Plan of Distribution...................................................... 17
Available Information..................................................... 20
Information Incorporated By Reference..................................... 20
Legal Matters............................................................. 21
Experts................................................................... 21
</TABLE>
________________________
Our corporate website address is www.intercept.net. We are not
incorporating the information on our website into this prospectus, and we do not
intend to make our website a part of this prospectus.
<PAGE>
The InterCept Group
We are a single-source provider of a broad range of technologies, products
and services that work together to meet the electronic commerce and operating
needs of financial institutions. We focus on serving the needs of financial
institutions across the United States with assets of less than $500 million,
which we refer to as community financial institutions. Over 1,500 of these
community financial institutions have contracted with us for one or more of our
technologies, products, and services, which include:
Electronic Funds Transfer. Electronic funds transfer, or EFT, transactions
include ATM withdrawals, balance inquiries, and transfers and debit card
transactions. We process a variety of EFT transactions online through national
and regional electronic networks, including CIRRUS(C), PLUS(C), STAR(TM), and
PULSE(TM). We also offer InterCept Switch(TM), a growing ATM network used by
community financial institutions to offer their customers access to ATMs owned
by other community banks free of charge.
Core Data Processing. We supply the software systems and services needed to
meet our customers' core data processing requirements, including general ledger,
loan and deposit operations, financial accounting and reporting, and customer
information file maintenance. Many of our customers install our client/server
software system, PC BancPAC(TM), in-house to perform these core data processing
functions for themselves, and others outsource their core processing needs to
our service bureau operations. We also provide item processing services, such as
statement preparation and encoding of checks.
Check Imaging. Check imaging involves creating computerized images of
checks, deposit slips, and related paper documents for electronic storage and
retrieval. We offer check imaging products and services on both an in-house and
service bureau basis to reduce the labor and costs associated with traditional
check processing.
Data Communications Management. We provide efficient, reliable and secure
solutions for the data communications needs of our customers and maintain
nationwide data communications coverage. We operate a frame relay network, which
serves as the principal conduit through which we deliver our EFT and other
electronic commerce products and services to our customers. We also provide
various Internet services, like web hosting and e-mail, over our frame relay
network.
Internet Banking. Through our relationship with our affiliate Netzee, Inc.,
we offer Internet and telephone banking products and services as part of our
strategy to provide comprehensive electronic commerce and operating capabilities
to our customers.
On August 29, 2000, we acquired Advanced Computer Enterprises,
Incorporated, a provider of core data processing, item capture, and check
imaging services to community financial institutions. In this transaction, we
issued 350,000 shares of our common stock to the sole shareholder of Advanced
Computer Enterprises.
We were incorporated in Georgia on April 30, 1996. Our principal executive
offices are located at 3150 Holcomb Bridge Road, Suite 200, Norcross, Georgia
30071, and our telephone number is (770) 248-9600.
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RISK FACTORS
An investment in shares of our common stock involves risks. Before making
an investment in our common stock, you should carefully consider the risks
described below, together with the other information in this prospectus. Our
business, financial condition, and results of operations could be adversely
affected by any of the following risks. If we are adversely affected by these
risks, then the trading price of our common stock could decline and you could
lose all or part of your investment. The risks described below are the risks
that we currently believe are material risks of an investment in our common
stock. You should keep in mind that these risks are not the only risks that we
face. Additional risks not presently known to us, or risks that we currently
believe are not material, may also impair our business operations.
Risks Related to Our Operations
Our rapid growth could strain our managerial, operational, and financial
resources, and our failure to manage our growth could cause our business to
suffer.
Our internal growth and acquisitions since our initial public offering in
June 1998 have placed great demands on our business, particularly our
managerial, operational, and financial personnel and systems. For example, we
have grown from approximately 170 employees on March 31, 1998 to approximately
310 employees on December 1, 2000. Additional internal growth and acquisitions
may further strain our resources. We cannot guarantee that our systems,
procedures, controls, and existing facilities will be adequate to support the
expansion of our operations, while maintaining adequate levels of customer
service and satisfaction. Our future operating results will depend substantially
on the ability of our officers and key employees to manage changing business
conditions and to implement and improve our technical, administrative, financial
control and reporting systems. Our failure to respond to and manage changing
business conditions as we expand could diminish the quality of our products and
services, result in the loss of customers and weaken our operating results.
Our acquisitions could result in integration difficulties, unexpected expenses,
diversion of management's attention, and other negative consequences.
As part of our growth strategy, since our initial public offering in June
1998, we have completed several acquisition transactions. We plan to continue to
acquire similar or complementary businesses, products, and services as a key
element of our growth strategy. We must integrate the technologies, products,
services, operations, systems, and personnel of acquired businesses with our own
and attempt to grow the acquired businesses as part of our company. The
integration of other businesses is a complex process and places significant
demands on our management, financial, technical, and other resources. The
successful integration of businesses we have acquired and may acquire in the
future is critical to our future success, and if we are unsuccessful, our
financial and operating performance could suffer. The risks and challenges
associated with the acquisition and integration of acquired businesses include,
but are not limited to:
. an inability to centralize and consolidate our financial, operational,
and administrative functions with those of the businesses we acquire;
. the diversion of our management's attention from other business
concerns;
. an inability to retain and motivate key employees of an acquired
company;
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. the entry into markets in which we have little or no prior direct
experience;
. the possibility of litigation, indemnification claims, and other
unforeseen claims and liabilities arising from the acquisition or the
operations of acquired businesses;
. the costs necessary to complete integration may exceed our
expectations or outweigh some of the intended benefits of the
transactions we complete;
. an inability to maintain the customers or goodwill of an acquired
business; and
. the costs necessary to improve or replace the operating systems,
products, and services of acquired businesses may exceed our
expectations.
We cannot guarantee that we will be able to successfully integrate our
acquisitions with our operations on schedule or at all. We cannot assure you
that we will not incur large accounting charges or other expenses in connection
with acquisitions or that acquisitions will result in cost savings or sufficient
revenues or earnings to justify our investment in, or our expenses related to,
these acquisitions.
As noted, we may incur costs and expenses in connection with
indemnification claims and litigation associated with our acquisitions. We may
also experience customer attrition as a result of acquisitions if our existing
customers or customers of the acquired business disagree with or dislike the
acquisition for any reason. These costs and expenses as well as customer
attrition could have a material adverse effect on our revenues and profits.
Competition, restrictions under our credit facility, market conditions, and
other factors may impede our ability to acquire other businesses and may inhibit
our growth.
A significant part of our historic growth has been generated from
acquisitions. We anticipate that a large portion of our future growth will also
be accomplished through acquisitions. The success of this plan depends upon our
ability to identify suitable acquisition candidates, reach agreements to acquire
these companies and obtain necessary financing on acceptable terms. In pursuing
acquisition and investment opportunities, we may compete with other companies
that have similar growth strategies. Some of these competitors may be larger and
have greater financial and other resources than we have. This competition may
render us unable to acquire businesses that could improve our growth or expand
our operations.
The acquisitions we have completed since our initial public offering have
been financed with a combination of our common stock, cash from our operations,
and borrowings made under our line of credit with First Union National Bank. If
our stock price declines as a result of general market conditions or otherwise,
the shareholders of businesses that we seek to acquire may be unwilling to
accept our common stock in exchange for their business. In that case, in order
to continue to complete acquisitions, we would be required to use larger
portions of our line of credit or cash from operations, which would decrease our
working capital and increase our interest expense. This could have a material
negative impact on our financial performance and results of operations. In
addition, our credit facility with First Union restricts our ability to complete
acquisitions without First Union's consent. We also must be in compliance with
the financial covenants of the credit facility in order to make these
acquisitions. If we are unable to raise additional capital or borrow funds, we
may be unable to make acquisitions that could be helpful to our business.
5
<PAGE>
If we do not continue to expand our sales force and our marketing relationships,
we may not be able to continue our growth.
Our ability to expand our business will depend significantly on our ability
to expand our sales and marketing forces and our strategic marketing
relationships. In order to continue our growth, we must successfully cross-
market our products and services to existing customers and enter into agreements
with new customers. This requires us to locate and hire experienced sales and
marketing personnel and to establish and maintain key marketing relationships.
Competition for experienced sales and marketing personnel is intense, and
we may not be able to retain our existing personnel or locate and attract
additional qualified personnel in the future. In addition, we have relationships
with various banking-related organizations for the marketing and endorsement of
our products and services. For example, we rely upon our agreements with
bankers' banks across the country to market our products and services to
community financial institutions. These relationships are important to our sales
and marketing efforts and our geographic expansion. If we lose any of these
marketing relationships or are unable to enter into new ones, it could delay
growth in our customer base and revenues.
The loss of our chief executive officer could have a material adverse effect on
our business.
John W. Collins, our chief executive officer, has substantial experience
with our operations and our industry and has contributed significantly to our
growth. We maintain key man life insurance on Mr. Collins, and he works for us
under the terms of an employment agreement. However, our customer and marketing
relationships would likely be impaired and our business would likely suffer if
we lose the services of Mr. Collins for any reason.
Technological changes may reduce the demand for our products and services or
render them obsolete.
A substantial portion of our business involves electronic commerce. The
electronic commerce industry, including EFT, data communications, and data
processing, has experienced rapid technological change. The introduction of new
technologies and financial products and services can render existing
technologies, products, and services obsolete in a short period of time. We
expect other vendors to continually introduce new products and services, as well
as enhancements to their existing products and services, which will compete with
our products and services. To be successful, we must anticipate evolving
industry trends, continue to apply advances in electronic commerce, enhance our
existing products and services, and develop or acquire new products and services
to meet the demands of our customers. We may not be successful in developing,
acquiring or marketing new or enhanced products or services that respond to
technological change or evolving customer needs. We may also incur substantial
costs in developing and employing new technologies. If we fail to develop and
provide new and enhanced products and services, or if these products and
services do not achieve market acceptance, we could lose customers and revenues
and fail to attract new customers or otherwise realize the benefits of costs we
incur, all of which could cause our revenues and earnings to fall below market
expectations.
6
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If our processing centers or communications networks suffer a system failure or
interruption, we may face customer service issues and be liable for any damage
suffered by our customers.
Our operations depend on our ability to protect our processing centers,
network infrastructure, and equipment. Damage to our systems or equipment or
those of third parties that we use may be caused by natural disasters, human
error, power and telecommunications failures, intentional acts of vandalism, and
similar events. While we do have data and item processing centers in several
locations that serve as backups for each other, we only maintain a single data
communications switching facility and do not maintain a backup location for our
frame relay network hardware. Interruption in our processing or communications
services could delay transfers of our customers' data or damage or destroy the
data. Sudden increases in ATM usage or credit card activity could result in slow
response times in our network. Any of these occurrences could result in or lead
to lawsuits or loss of customers and may also harm our reputation.
We depend on third parties for products and services necessary to our business,
and if we cannot obtain satisfactory products and services on favorable terms,
or at all, our business could suffer.
We rely on third parties for internet and telephone banking products and
services, ATM and debit card productions, fiber optic communications, and other
products and services that are essential to our business. For example, we use
and market the internet and telephone banking products and services of our
affiliate, Netzee, Inc., as part of our electronic commerce solutions. If Netzee
or any of these other third parties terminates or changes its relationship with
us, or if for any reason we are unable to obtain its products and services on
favorable terms, we may be unable to meet our customers' needs on a timely
basis. Similarly, if any of these third parties is permanently or temporarily
unable to provide its products and services to us as the result of natural
disasters, technical difficulties, or otherwise, we may be unable to provide our
products and services to our customers. If the performance of the third party
products and services, or our own products and services, that we provide to our
customers does not meet our customers' expectations, whether due to difficulties
in integrating these products and services with the customers' existing products
and services or otherwise, we may be unable to satisfy our customers' operating
needs. If we are unable to meet our customers' needs, our customer relationships
could be damaged and our business reputation harmed, both of which could cause
us to lose customers and would inhibit our ability to obtain new customers.
If our products and services contain errors, we may lose customers and be
subject to claims for damages.
New products and services and enhancements to our existing products and
services that we may offer from time to time may have undetected errors or
failures or could fail to achieve market acceptance, despite testing by our
current and potential customers and us. If we discover errors after we have
introduced a new or updated product to the marketplace, we could experience,
among other things:
. delayed or lost revenues while we correct the errors;
. a loss or delay in market acceptance; and
. additional and unexpected expenses to fund further product
development.
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Our agreements with our customers generally contain provisions designed to
limit our exposure to potential product liability claims, such as disclaimers of
warranties and limitations on liability for special, consequential and
incidental damages. It is possible, however, that these provisions may not be
effective because of existing or future federal, state or local laws or
ordinances, or unfavorable judicial decisions. Therefore, if our products and
services fail to function properly, we could be subject to product liability
claims, which could result in increased litigation expense, damage awards, and
harm to our business reputation.
Because our business involves the electronic storage and transmission of data,
security breaches and computer viruses could adversely affect us.
Our online transaction processing systems electronically store and transmit
sensitive business information of our customers. The difficulty of securely
storing confidential information electronically has been a significant issue in
conducting electronic commerce. We may be required to spend significant capital
and other resources to protect against the threat of security breaches and
computer viruses, or to alleviate problems caused by breaches or viruses. To the
extent that our activities or the activities of our customers involve the
storage and transmission of confidential information, such as banking records or
credit information, security breaches and viruses could expose us to claims,
litigation, or other possible liabilities. Our inability to prevent security
breaches or computer viruses could also cause customers to lose confidence in
our systems and terminate their agreements with us and inhibit our ability to
attract new customers.
We may be unsuccessful as a competitive local exchange or long distance carrier.
As part of our business strategy to reduce our operating costs and enhance
services for our customers, we applied to several state public utility
commissions for authority to become both a competitive local exchange carrier,
or CLEC, and a long distance carrier, or IXC. Becoming a CLEC will allow us to
purchase at wholesale prices telecommunications services sold at retail by local
telephone companies such as the Regional Bell Operating Companies, or RBOCs.
Similarly, becoming an IXC will allow us to resell the long distance services of
other carriers such as AT&T Corp. or WorldCom, Inc. We recently received
certification as a CLEC and as an IXC in Alabama, Florida, and Georgia. We have
negotiated an interconnection/resale agreement with BellSouth Telecommunications
Inc., an RBOC, which was recently approved by public utility commissions in
Alabama, Florida and Georgia. We have not yet negotiated an
interconnection/resale agreement with an IXC.
Our ability to succeed as a CLEC or an IXC will be subject to a number of
factors, including:
. our ability to market the new services to our customers;
. the willingness of our customers to use a non-traditional provider for
their telecommunications services;
. our ability to implement the necessary billing and collection systems
for these services;
. competition from RBOCs such as BellSouth, from IXCs such as AT&T Corp.
or MCI WorldCom, Inc., and from other CLECs;
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. our ability to obtain the services, equipment, and facilities that we
need to serve as a CLEC or IXC; and
. the performance of other carriers from whom we purchase services for
resale.
If we are unsuccessful in operating as a CLEC or an IXC, our ability to
control our operating costs would be harmed and we would not receive the
benefits of the costs we have incurred in our efforts to become both a CLEC and
an IXC.
As a CLEC and an IXC, we are subject to significant governmental regulation,
which is subject to change.
In addition to obtaining state CLEC and IXC certifications, we are also
required to obtain authorization from the Federal Communications Commission to
offer international telecommunications services. We are also required to file
with the FCC and with various state public utility commissions tariffs
describing the rates, terms, and conditions of our services and to comply with
local license or permit requirements relating to installation and operation of
our network. We have incurred some costs in attempting to become a CLEC and IXC
and expect to incur significant costs in maintaining that status. Any of the
following could have a material adverse effect on our operations as a CLEC or
an IXC:
. failure to maintain proper federal and state tariffs;
. failure to maintain proper federal or state certifications;
. failure to comply with federal, state, or local laws or regulations;
. failure to obtain and maintain required licenses and permits;
. changes in the laws applicable to CLECs or IXCs; and
. burdensome federal, state, or local regulations and license or permit
requirements.
Fluctuations in our operating results may negatively affect the trading price of
our common stock.
Our operating results have varied in the past and may fluctuate
significantly in the future as a result of many factors. These factors include:
. the possible negative impact of implementing our growth and
acquisition strategies, including accounting charges and other
expenses associated with our acquisitions;
. loss of customers or strategic relationships;
. competition and pricing pressures;
. increased operating expenses due to launches of new products and
services and sales and marketing efforts; and
. changes in interchange and transaction fees of MasterCard and Visa.
Many factors that affect our operating results are outside of our control.
Because of these factors, it is likely that in some future period our financial
results will fall below the expectations of securities analysts or investors. In
that event, the trading price of our common stock would likely decline, perhaps
significantly. Because we derive EFT revenues in a large part based on various
interchange and transaction fees set by Visa and MasterCard, any changes in
interchange or transaction fees, whether as a result of a pending dispute or
otherwise, could negatively impact our revenues.
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Our limited combined operating history makes it difficult to evaluate our
business.
Since our incorporation in May 1996, we have completed several
acquisitions. The historical and pro forma financial information included or
incorporated by reference in this prospectus is based in part on the separate
pre-acquisition financial reports of the companies we have acquired. As a
result, your evaluation of us is based on a limited combined operating history.
Our historical results of operations and pro forma financial information may not
give you an accurate indication of our future results of operations or
prospects.
Georgia law, our articles of incorporation and bylaws, and some of our
employment agreements contain provisions that could discourage a third party
from attempting to acquire your shares at a premium to the market price.
Some provisions of our articles of incorporation, our bylaws, and Georgia
law make it more difficult for a third party to acquire control of our company,
even if a change in control would be beneficial to our shareholders. Several of
our executive officers have entered into employment agreements with us that
contain change in control provisions. These provisions may discourage or prevent
a tender offer, proxy contest, or other attempted takeover. In addition, we have
in the past and may in the future create and issue new classes of preferred
stock that have greater rights than our common stock. These superior rights may
include greater voting rights, entitlement to dividends, and preferential
treatment in the event of a change of control, liquidation, consolidation, or
other circumstances.
Risks Related to Our Ownership in Netzee
Because we own a minority interest in Netzee and Netzee is expected to continue
to have significant losses, our future financial performance may be adversely
affected.
In September 1999, we completed a series of transactions that removed
internet and telephone banking products and services from our operations. Our
historical financial results therefore include results of operations that we no
longer have. These operations are now conducted by Netzee, Inc., a company in
which we own approximately 28%. Although we no longer include Netzee's
operations in our financial results on a combined basis, we record a relative
percentage of the operating income and losses of Netzee in a single line item on
our statement of operations, "equity in loss of affiliate." Netzee has a history
of losses and may never become profitable. The impact of Netzee's results of
operations on our financial condition, including our shareholders' equity, is
uncertain, and we cannot guarantee we will benefit from our ownership in Netzee.
If Netzee does not become profitable, it may not be able to repay the loans we
have made and may make to it in the future.
While there is no agreement presently in place, we may loan additional
monies to Netzee to fund its working capital needs or operations. As of
September 30, 2000, the total amount outstanding on our loans to Netzee was
approximately $15.0 million. Netzee has a history of losses and may never become
profitable. As a result, Netzee may be unable to repay the loans we made to it,
which would harm the value of our investment in Netzee and our shareholders'
equity.
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Fluctuations in the price of Netzee's common stock and its operating results
could materially impact the price of our common stock.
Because of our significant ownership interest in Netzee, a perception may
exist in the market that our stock price is tied closely to the stock price of
Netzee. The value of our minority interest in Netzee will be based in part on
the fair market value of Netzee's common stock as reported on the Nasdaq
National Market. Some investors may discount the value of our position in Netzee
due to the large, illiquid nature of our ownership in Netzee. We believe that
Netzee will be valued similarly to other companies with internet-based
businesses, and the market values of these companies generally have fluctuated
significantly. Therefore, the value of our interest in Netzee and our
shareholders' equity could fluctuate significantly, which could cause our stock
price to fluctuate significantly as well.
Our relationship with Netzee presents potential conflicts of interest, which may
result in decisions that favor Netzee over our shareholders.
Because Netzee and we are both engaged in the sale of electronic commerce
products and services to community financial institutions, numerous potential
conflicts of interest exist between our companies. We will compete with each
other when offering some products and services to potential customers. Our
bylaws contain provisions addressing potential conflicts of interest between us
and Netzee and the allocation of transactions that, absent the allocation, could
constitute corporate opportunities of both companies. Under these provisions,
Netzee may take advantage of a corporate opportunity rather than presenting that
opportunity to us, absent a clear indication that the opportunity was directed
to us rather than to Netzee.
Our existing and future agreements and relationships with Netzee have not
resulted and will not necessarily result from arm's length negotiations. Our
chairman and three of our other directors are directors and significant
shareholders of Netzee. In addition, Donny R. Jackson, one of those directors
and, until October 2000, our president serves as chief executive officer of
Netzee. When the interests of Netzee diverge from our interests, Netzee's
officers and directors may exercise their influence in Netzee's best interests.
Therefore, our agreements and relationships with Netzee may be less favorable to
us than those that we could obtain from unaffiliated third parties. Moreover,
many of the transactions between Netzee and us do not lend themselves to precise
allocations of costs and benefits. Thus, the value of these transactions will be
left to the discretion of the parties, who are subject to potentially
conflicting interests.
Other than the provisions of our bylaws relating to corporate
opportunities, there is no mechanism in place to resolve these conflicts of
interest, except that it is our policy that transactions with affiliated parties
be approved by a majority of our disinterested directors. Nevertheless, due to
the extensive relationships between Netzee and us, we may make decisions that
potentially favor Netzee or its affiliates at the expense of our shareholders.
Furthermore, Georgia law may prohibit you from successfully challenging these
decisions, if the decision receives the affirmative vote of a majority, but not
less than two, of our disinterested directors who received full disclosure of
the existence and nature of the conflict.
We could face liabilities due to our large ownership of Netzee.
Because we own a large percentage of Netzee's common stock, we could be
subject to various liabilities related to Netzee's business and operations. For
example, if Netzee were sued, we could be named a co-defendant as a result of
our ownership interest and relationship with Netzee. Although we do not believe
that would be proper basis for us to be liable, any lawsuit in which we are a
named defendant could result in large litigation expenses and distract us from
running our business while we defend our position.
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Risks Related to Our Industry
Because many of our competitors have significantly greater resources than we do,
we may be unable to gain significant market share.
Because our business includes a variety of products and services, we
generally face different competitors within each area of our business. Our
principal EFT competitors include regional ATM networks, regional and local
banks that perform processing functions, non-bank processors, and other
independent electronic commerce and data communications organizations. In our
core banking and data processing business, we compete with several companies who
have national operations and significant assets. In each of these areas, many of
our competitors have longer operating histories, greater name recognition, and
substantially greater resources than we do. If we compete with them for the same
geographic market, their financial strength could prevent us from capturing
market share in those areas. In addition, the competitive pricing pressures that
would result from an increase in competition from these companies could have a
material adverse effect on our business, financial condition, and results of
operations. Some of our competitors have established cooperative relationships
among themselves or with third parties to increase their ability to address
customer needs. Accordingly, new competitors or alliances among competitors may
emerge and rapidly acquire significant market share.
We cannot guarantee that we will be able to compete successfully with
existing or new competitors. If we fail to adapt to emerging market demands or
to compete successfully with existing and new competitors, our business,
financial condition, and results of operations would be materially adversely
affected.
Community financial institutions are subject to industry consolidation, and we
may lose customers with little notice.
We market our products and services primarily to community financial
institutions. Many large financial institutions perform their own transaction
processing and data communications management and therefore do not use third
party providers like us. The banking industry is prone to consolidations that
result from mergers and acquisitions. There is a risk that one or more of our
existing customers may be acquired by or merged with another financial
institution. Any such purchase or merger may result in a lost customer for us
because the acquiring financial institution may not use our products and
services. Although we have included financial penalties in most of our contracts
for early termination of the contract without cause, these financial penalties
would be insufficient to replace the recurring revenues that we would have
received if the financial institution had continued as a customer.
The banking industry is highly regulated, and changes in banking regulations
could negatively affect our business.
Our banking customers are subject to the supervision of several state and
federal government regulatory agencies. If bank regulations change, or if new
regulations are adopted to regulate the
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products and services offered by or used by community financial institutions, we
could suffer an increase in the costs of providing our technologies, products,
and services. Moreover, if any new or revised regulations diminished the need
for our services, we could lose customers and suffer a decline in revenues.
We are subject to government and private regulation, and an increase in
regulatory requirements or tax burdens could place a strain on our business.
Various federal and state regulatory agencies examine our data processing
operations from time to time. These agencies can make findings or
recommendations regarding various aspects of our operations, and we generally
must follow such recommendations to continue our data processing operations. If
we fail to comply with these regulations, our operations and processing revenues
could be negatively affected.
Our ATM network operations are subject to federal regulations governing
consumers' rights. Fees charged by ATM owners are currently regulated in several
states, and legislation regulating ATM fees has been proposed in several other
states. Additional legislation may be proposed and enacted in the future or
existing consumer protection laws may be expanded to apply to ATM fees. If the
number of ATMs decreases, then our EFT revenues may decline. Furthermore, we are
subject to the regulations and policies of various ATM and debit card
associations and networks. If we lose our privileges to provide transaction
processing services across these networks, our revenues from ATM and debit card
transaction processing will decrease significantly.
As a transaction processing company, we may be subject to state taxation of
certain portions of the fees charged for our services. Application of this tax
is an emerging issue in the industry, and the states have not yet adopted
uniform guidelines implementing these regulations. If we are required to bear
all or a portion of these costs and are unable to pass these costs through to
our customers, our financial condition and results of operations would be
adversely affected.
If we face a claim of intellectual property infringement by a third party or
fail to protect our intellectual property rights, we could be liable for
significant damages or could lose our intellectual property rights.
We attempt to protect our software, documentation, and other written
materials under trade secret and copyright laws, confidentiality procedures, and
contractual provisions, which afford only limited protection. Despite our
efforts to protect our proprietary rights, unauthorized parties may attempt to
copy aspects of our products or to obtain and use information that we regard as
proprietary. We cannot guarantee that our means of protecting our proprietary
rights will be adequate or that our competitors will not independently develop
similar technology. We do not believe that any of our products infringe the
proprietary rights of third parties. We cannot guarantee, however, that third
parties will not make infringement claims, and we have agreed to indemnify many
of our customers against such claims. We anticipate that the number of
infringement claims will increase as the number of electronic commerce products
and services increases and the functionality of products in different industry
segments overlaps. Any such claims, whether with or without merit, could be
time-consuming, result in costly litigation, and may not be resolved on terms
favorable to us.
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Risks Related to this Offering
A few people control a large portion of our stock and may vote their shares in
ways contrary to your interests.
Our executive officers and directors beneficially own approximately 26.0%
of our outstanding common stock as of the date of this prospectus. In addition,
John W. Collins, our chairman and chief executive officer, has the right to
direct the voting of an additional 514,377 shares, or approximately 3.9%, of our
common stock held by another shareholder. As a result, our executive officers
and directors can exercise control over our company and have the power to
influence the election of a majority of the directors, the appointment of
management, and the approval of actions requiring a majority vote of our
shareholders. Their interests may conflict with your interest as a shareholder,
and they could use their power to delay or prevent a change in control, even if
a majority of the other shareholders desired a change.
Future sales of shares of our common stock will dilute your ownership and may
negatively affect our stock price.
To carry out our growth strategies, we plan to acquire other businesses and
products using a combination of our stock and cash, and we may also sell
additional shares of our stock to raise money for expanding our operations,
which would dilute your ownership interest in our company.
If our shareholders sell substantial amounts of our common stock, including
shares issuable upon the exercise of outstanding options and shares registered
in this offering, the market price of our common stock could fall. These sales
also might make it more difficult for us to sell equity securities in the future
at a time and price that we deem appropriate. As of December 1, 2000, we had
13,202,473 shares of common stock outstanding and options outstanding to acquire
an additional 1,731,266 shares of common stock. Approximately 11,820,000 shares,
including the shares being sold by the selling shareholder, are freely tradable
by persons who are not affiliates of our company.
The failure to sustain our current growth rate or to meet expected growth rates
could have an adverse impact on the price of our common stock.
We have experienced significant internal growth since our inception. Our
revenues have increased from $28.2 million in 1997 to $52.4 million in 1999. Our
internal growth rate may decline significantly in the future due to factors
within or beyond our control. The failure to sustain our current or historical
internal growth rates, or growth rates expected by stock market analysis, could
have a material adverse impact on the trading price of our common stock.
We cannot predict every event and circumstance which may affect our business
and, therefore, the risks and uncertainties discussed above may not be the only
ones you should consider.
The risks and uncertainties discussed above are in addition to those that
apply to most businesses generally. In addition, as we continue to grow our
business, we may encounter other risks of which we are not aware at this time.
These additional risks may cause serious damage to our business in the future,
the impact of which we cannot estimate at this time.
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FORWARD LOOKING STATEMENTS
We have made forward looking statements in this prospectus and other
documents incorporated by reference. These statements are subject to risks and
uncertainties, and we cannot guarantee you that they will prove to be correct.
Forward looking statements include assumptions about how we may perform in the
future. When we use words like "believe," "expect," "anticipate," "predict,"
"potential," "seek," "continue," "will," "may," "could," "intend," "plan,"
"estimate," "goal," and "strive," as well as similar expressions, we are making
forward looking statements.
Forward looking statements in this prospectus include statements regarding
the following:
. our business strategies and goals;
. our future sources of revenues and potential for growth and
profitability;
. expansion and enhancement of our technologies, networks, products, and
services;
. our relationship with Netzee;
. trends in activities and industry conditions;
. development and expansion of our sales and marketing efforts;
. our ability to integrate our previous and future acquisitions; and
. other statements which are not of historical fact made throughout this
prospectus, including in the "Summary" and "Risk Factors" sections.
For these kinds of statements we claim the protection of the safe harbor
for forward-looking statements contained in the Private Securities Litigation
Reform Act of 1995. You should understand that the factors described in the
"Risk Factors" section and elsewhere in this prospectus could affect the future
results of our company and could cause those results to differ materially from
those expressed in our forward-looking statements. We undertake no duty to
update any of the forward-looking statements after the date of this prospectus
to conform those statements to actual results.
The unaudited pro forma financial information incorporated by reference
into this prospectus do not include any adjustments for potential savings or
other improvements and do not purport to represent what our combined results of
operations or financial position would actually have been. You should not rely
on the pro forma statements of operations as being representative of our future
results of operations.
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USE OF PROCEEDS
The selling shareholder will receive all of the proceeds from the sale of
shares offered by this prospectus. We will not receive any of the proceeds.
SELLING SHAREHOLDER
On August 29, 2000, we purchased Advanced Computer Enterprises,
Incorporated, a provider of core data processing, item capture and check imaging
services to community financial institutions. In this transaction, we issued
350,000 shares of our common stock to the sole shareholder of Advanced Computer
Enterprises. Of these shares, 17,500 shares were placed in escrow to satisfy
indemnity obligations of the Advanced Computer Enterprises shareholders to
InterCept. The shares held in escrow are included in this offering and the
proceeds from any of these shares sold will continue to be held in escrow. If
not sold prior to August 29, 2001, and if we do not make a claim against the
escrow, all of the shares will be released from escrow on that date and may be
sold at that time by the shareholder under Rule 144 of the Securities Act. The
former sole shareholder of Advanced Computer Enterprises is not an officer or
director of InterCept.
The following table sets forth information regarding the beneficial
ownership of our common stock held by the selling shareholder as of December 1,
2000, and as adjusted to reflect the sale of common stock offered by the selling
shareholder. The information in the table is based on information from the named
person regarding his ownership of our common stock. Unless otherwise indicated,
the selling shareholder has sole voting power and investment power over the
shares beneficially owned. As of December 1, 2000, there were 13,202,473 shares
of common stock outstanding.
Ownership Ownership
before after
the offering the offering
------------ Number of ------------
Name of Shareholder Shares % shares offered Shares
------------------- ------ --- -------------- ------
Al Shiver 350,000 2.6 350,000 0
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PLAN OF DISTRIBUTION
Resales by Selling Shareholder
We are registering the shares offered under this prospectus on behalf of
the selling shareholder. The term "selling shareholder" includes pledgees,
donees, transferees and successors in interest. The selling shareholder may sell
or distribute these shares from time to time either in increments or a single
transaction. The selling shareholder may also decide not to sell all the shares
he is allowed to sell under this prospectus. We will not receive any proceeds
from the sale of the shares, but we will pay all costs, expenses and fees in
connection with the registration of the shares. The selling shareholder will pay
all brokerage commissions and similar selling expenses, if any, attributable to
the sale of the shares.
Types of Sale Transactions
The selling shareholder will act independently of us in making decisions
with respect to the timing, manner, and size of each sale. The selling
shareholder may sell the shares in one or more types of transactions (which may
include block transactions), including:
. a cross or block trade, including a transaction in which the broker or
dealer so engaged will attempt to sell the shares as agent but may
position and resell a portion of the block as a principal to
facilitate the transaction;
. purchases by a broker or dealer or underwriter as principal and resale
by such broker or dealer or underwriter for its account under this
prospectus;
. an exchange distribution in accordance with the rules of such
exchange;
. ordinary brokerage transactions and transactions in which the broker
solicits purchasers;
. in transactions to or through market makers of our common stock or
into an existing market for the common stock;
. in other ways not involving market makers or established trading
markets, including direct sales of the shares to purchasers or sales
of the shares effected through agents;
. through transactions in options, swaps, or other derivatives which may
or may not be listed on an exchange;
. in privately negotiated transactions; or
. in transactions to cover short sales.
The shares may be sold at a fixed offering price, which may be changed, or
at market prices prevailing at the time of sale, or at negotiated prices. Such
transactions may or may not involve broker dealers.
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Sales to or Through Broker-Dealers
The selling shareholder may sell shares directly to purchasers, or sell
shares to, or through broker-dealers. These broker-dealers may act as either an
agent of the selling shareholder, or as a principal for the broker-dealer's own
account. Such broker-dealers, whether acing as an agent or as a principal, may
receive compensation in the broker-dealer's own account or in the form of
discounts, concessions or commissions from the selling shareholder or the
purchasers of shares. The remuneration received by broker-dealers may exceed
customer commissions.
The selling shareholder may enter into hedging transactions with broker-
dealers in connection with distributions of the shares or otherwise. In such
transactions, broker-dealers may engage in short sales of the shares in the
course of hedging the positions they assume with the selling shareholder. The
selling shareholder also may sell shares short and re-deliver the shares to
close out such short positions. The selling shareholder may enter into option or
other transactions with broker-dealers which require the delivery to the broker-
dealer of the shares. The broker-dealer may then resell or otherwise transfer
such shares pursuant to this prospectus. The selling shareholder also may loan
or pledge the shares to a broker-dealer. The broker-dealer may sell the shares
so loaned, or upon a default the broker-dealer may sell the pledged shares
pursuant to this prospectus.
Deemed Underwriting Compensation
The selling shareholder and any broker-dealers that act in connection with
the sale of shares might be deemed to be "underwriters" within the meaning of
Section 2(a)(11) of the Securities Act of 1933. Any commissions received by such
broker-dealers, and any profit on the resale of shares sold by them while acting
as principals, could be deemed to be underwriting discounts or commissions under
the Securities Act.
Indemnification
The selling shareholder may agree to indemnify any agent, dealer or broker-
dealer that participates in transactions involving sales of shares against
certain liabilities, including liabilities arising under the Securities Act of
1933.
Prospectus Delivery Requirements
Because the selling shareholder and such brokers or dealers and any other
participating brokers or dealers may be deemed to be "underwriters" within the
meaning of the Securities Act of 1933 in connection with sales of common stock,
they will be subject to the prospectus delivery requirements of the Securities
Act.
Sales Under Rule 144
Any securities covered by this prospectus which qualify for sale pursuant
to Rule 144 may be sold under Rule 144 rather than pursuant to this prospectus.
Under Rule 144, a shareholder may sell shares held more than one year, provided
the shareholder meets various manner of sale, notice and other requirements set
forth in Rule 144.
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Distribution Arrangements with Broker-Dealers
If the selling shareholder sells these shares in an underwritten offering,
the underwriters may acquire these shares for their own account and resell the
shares from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. In that event, we will set forth in a supplement to this
prospectus the names of the underwriters and the terms of the transactions,
including any underwriting discounts, concessions or commissions and other items
constituting compensation of the underwriters and brokers or dealers. The
underwriters from time to time may change any public offering price and any
discounts, concessions, or commissions allowed or reallowed or paid to brokers
or dealers.
If the selling shareholder notifies us that he has entered into any
material arrangement with a broker or dealer for the sale of these shares
through a block trade, special offering, exchange distribution, or secondary
distribution or a purchase by a broker or dealer, we will file a supplement to
this prospectus, if required, disclosing:
. the name of each selling shareholder and each participating broker or
dealers;
. the number of shares involved;
. the price at which such shares were sold;
. the commissions paid or discounts or concessions allowed to each
broker or dealers, where applicable;
. that such broker or dealers did not conduct any investigation to
verify the information set out or incorporated by reference in this
prospectus; and
. other facts material to the transaction.
In addition, we will file a supplement to this prospectus if we are notified
that a donee or pledgee that is not already identified as a selling shareholder
intends to sell more than 500 shares.
The registration statement for this offering was filed under the terms of a
registration rights agreement with Al Shiver and is subject to the terms of that
agreement. That agreement provides that if we determine that the registration of
the shares will interfere with any material financing, acquisition, or other
corporation transaction by us, we may terminate or withdraw the registration
statement covering these shares with the approval of Mr. Shiver. This offering
will terminate on the date that is 12 months from the date this registration
statement is declared effective, or if earlier, the date on which the selling
shareholder has sold all of the shares offered under this prospectus.
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AVAILABLE INFORMATION
We are subject to the information requirements of the Securities Exchange
Act of 1934, which means we are required to file annual, quarterly, and special
reports, proxy statements, and other information with the SEC. Our SEC filings
are available to the public over the Internet at the SEC's website available at
http://www.sec.gov. You may also read and copy any document we file with the SEC
at its Public Reference Room at 450 Fifth Street, N.W., Washington, D.C. 20549.
You may obtain information on the operation of the Public Reference Room by
calling the SEC at 1-800-SEC-0330.
INFORMATION INCORPORATED BY REFERENCE
We filed a registration statement on Form S-3 to register with the SEC the
shares of common stock to be offered and sold by this prospectus. This
prospectus is part of that registration statement. As allowed by the SEC's
rules, this prospectus does not contain all of the information you can find in
the registration statement or the exhibits to the registration statement. The
SEC allows us to "incorporate by reference" into this prospectus the information
we have filed with the SEC. The information incorporated by reference is an
important part of this prospectus and the information that we subsequently file
with the SEC will automatically update this prospectus. Absent unusual
circumstances, we will have no obligation to amend this prospectus, other than
filing subsequent information with the SEC. The historical and future
information that is incorporated by reference in this prospectus is considered
to be part of this prospectus and can be obtained at the locations described
above. We also incorporate by reference any filings we make with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the initial filing
of the registration statement until 12 months from the date this registration
statement is declared effective, or if earlier, the date the selling shareholder
sells all of the shares. We incorporate by reference the documents listed below:
1. Our Annual Report on Form 10-K for the fiscal year ended December 31,
1999.
2. Our Quarterly Reports on Form 10-Q for the quarters ended March 31,
2000, June 30, 2000, and September 30, 2000.
3. Our Current Reports on Form 8-K dated February 2, 2000, September 15,
2000, October 16, 2000, December 8, 2000, and December 18, 2000.
4. The description of our capital stock contained in our Registration
Statement on Form 8-A, as amended on October 1, 1999.
You may request a copy of these filings, at no cost to you, by writing or
calling us. Please make your request to:
The InterCept Group, Inc.
Attn: Scott R. Meyerhoff
Vice President-Finance, Chief Financial Officer & Secretary
3150 Holcomb Bridge Road, Suite 200
Norcross, GA 30071
(770) 248-9600
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LEGAL MATTERS
Nelson Mullins Riley & Scarborough, L.L.P., Atlanta, Georgia has passed
upon the validity of the shares of common stock offered under this prospectus
for InterCept. Glenn W. Sturm, a partner of Nelson Mullins, is one of our
directors. As of December 12, 2000, members and employees of Nelson Mullins,
including Mr. Sturm, directly and beneficially owned an aggregate of 409,990
shares of our common stock and an aggregate of 1,024,276 shares of Netzee's
common stock.
EXPERTS
The audited financial statements incorporated by reference in this
prospectus and elsewhere in the registration statement, to the extent and for
the periods indicated in their reports, have been audited by Arthur Andersen
LLP, independent public accountants, as indicated in their reports with respect
thereto, and are included herein in reliance upon the authority of Arthur
Andersen as experts in giving these reports.
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PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the expenses in connection with the offering
described in the registration statement. All amounts are estimates except the
SEC Registration Fee:
SEC Registration $ 2,385
Printing and Engraving Expenses 15,000
Legal Fees and Expenses 20,000
Accounting Fees and Expenses 15,000
Miscellaneous Expenses 12,615
--------
Total $ 65,000
The selling shareholder will not pay any of these expenses.
Item 15. Indemnification of Directors and Officers.
The Georgia Business Corporation Code permits a corporation to eliminate or
limit the personal liability of a director to the corporation or its
shareholders for monetary damages for any breach of duty of care or other duty
as a director, provided that no provision shall eliminate or limit the liability
of a director for:
. an appropriation, in violation of his duties, of any business
opportunity of the corporation;
. acts or omissions which involve intentional misconduct or a knowing
violation of law;
. unlawful corporate distributions; or
. any transaction from which the director received an improper personal
benefit.
The Georgia Code permits a corporation to indemnify officers to the same
extent as directors. Our amended and restated articles of incorporation
exonerate our directors from monetary liability to the extent described above,
and our amended and restated bylaws provide the same limitation of liability to
our officers.
In addition to these rights provided by law, our amended and restated
articles of incorporation and our amended and restated bylaws provide broad
indemnification rights to our directors and the officers, employees, and agents
designated by our directors, with respect to various civil and criminal
liabilities and losses which may be incurred by the director, officer, agent, or
employee under any pending or threatened litigation or other proceedings, except
that this indemnification does not apply in the same situations described above
with respect to the exculpation from liability of our directors. We are also
obligated to reimburse directors and other parties for expenses, including legal
fees, court costs and expert witness fees, incurred by the person in defending
against any liabilities and losses, as long as the person in good faith believes
that he or she acted in accordance with the applicable standard of conduct with
respect to the underlying accusations giving rise to such liabilities or losses
and agrees to repay to us any advances made if it is ultimately determined that
the person is not entitled to indemnification by us. Any amendment or other
modification to the applicable law, our articles of
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incorporation, or our bylaws as currently provided which limits or otherwise
adversely affects the rights to indemnification will apply only to proceedings
based upon actions and events occurring after such amendment and, in the case of
amendments to our articles or bylaws, delivery of notice thereof to the
indemnified parties.
We have entered into separate indemnification agreements with each of our
directors and certain of our officers, whereby we 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 articles of
incorporation and the bylaws. These agreements may not be invalidated by action
of the shareholders. In addition, we hold an insurance policy covering directors
and officers under which the insurer agrees to pay, subject to certain
exclusions, for any claim made against our directors and officers for a wrongful
act that they may become legally obligated to pay or for which we are required
to indemnify the directors or officers.
We believe that the above protections are necessary in order to attract and
retain qualified persons as directors and officers.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, or otherwise may be permitted to our directors, officers, and
controlling persons, we have been advised that in the opinion of the SEC this
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. If a claim for indemnification against these
liabilities (other than our payment of expenses incurred or paid by one of our
directors, officers, or controlling persons in the successful defense of any
action, suit, or proceeding) is asserted by the director, officer, or
controlling person in connection with the securities being registered, we will,
unless in the opinion of our counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
the indemnification by us is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
Item 16. Exhibits.
(a) Exhibits
Exhibit No. Description
----------- -----------
2.1 Acquisition and Merger Agreement by and among The InterCept
Group, Inc., a Georgia Corporation, Ace Acquisition Corp., a
Georgia corporation, Advanced Computer Enterprises, Incorporated,
a Tennessee Corporation, and Al Shiver dated August 29, 2000.*
4.1 Amended and Restated Articles of Incorporation, as deemed filed
with the Secretary of State of Georgia on April 29, 1998
(incorporated by reference to the exhibits to Intercept's
Registration Statement on Form 8-A (as amended on October 1,
1999)).
4.2 Amended and Restated Bylaws (incorporated by reference to the
exhibits to Intercept's Registration Statement on Form 8-A (as
amended on October 1, 1999)).
4.3 Amendment to Amended and Restated Bylaws (incorporated by
reference to the exhibits to Intercept's Registration Statement
on Form 8-A (as amended on October 1, 1999)).
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4.4 Specimen Common Stock Certificate (incorporated by reference to
the exhibits to Intercept's Registration Statement on Form S-1
(No. 333-47197) as declared effective by the Securities and
Exchange Commission on June 9, 1998).
5.1 Opinion of Nelson Mullins Riley & Scarborough, L.L.P.**
23.1 Consent of Nelson Mullins Riley & Scarborough, L.L.P. (included
in Exhibit 5.1 hereto).
23.2 Consent of Arthur Andersen LLP.
24.1 Power of Attorney (contained on the signature pages hereto).
* Pursuant to Item 601(b)(2) of Regulation S-K, InterCept agrees to furnish
supplementally a copy of any omitted schedule or exhibit to the Securities and
Exchange Commission upon request.
**To be filed by amendment
Item 17. Undertakings.
A. The undersigned Registrant 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 of 1933;
(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 the 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 20 percent change in the
maximum aggregate offering price, set forth in the "Calculation of Registration
Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that 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 SEC
by the registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference into the registration
statement.
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(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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; and
(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 this offering.
B. To deliver or cause to be delivered with the prospectus, to each
person to whom the prospectus is sent or given, the latest annual report to
security holders that is incorporated by reference in the prospectus and
furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3
under the Exchange Act; and, where interim financial information required to be
presented by Article 3 of Regulation S-X is not set forth in the prospectus is
sent or given, the latest quarterly report that is specifically incorporated by
reference in the prospectus to provide such interim financial information.
C. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 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.
D. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 Securities and Exchange
Commission such indemnification is against public policy as expressed in the 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 the registrant
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 Act and will be governed by the final
adjudication of such issue.
-4-
<PAGE>
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-3 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 19th day of
December, 2000.
THE INTERCEPT GROUP, INC.
By: /s/ John W. Collins
----------------------------------
John W. Collins
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities listed and
on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
------------------------- ----- ----
<S> <C> <C>
/s/ John W. Collins Chairman of the Board, Chief Executive December 19, 2000
-------------------------
John W. Collins Officer and Director
(Principal Executive Officer)
/s/ Donny R. Jackson Director December 19, 2000
-------------------------
Donny R. Jackson
/s/ Scott R. Meyerhoff Vice President-Finance, Chief December 19, 2000
-------------------------
Scott R. Meyerhoff Financial Officer and Secretary
(Principal Financial and
Accounting Officer)
/s/ Jon R. Burke Director December 19, 2000
-------------------------
Jon R. Burke
/s/ John D. Schneider, Jr. Director December 19, 2000
----------------------------
John D. Schneider, Jr.
/s/ Boone A. Knox Director December 19, 2000
-------------------------
Boone A. Knox
Director December 19, 2000
-------------------------
Glenn W. Sturm
</TABLE>
-5-
