SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-A/A
AMENDMENT NO. 1
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
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The InterCept Group, Inc.
(Exact name of Registrant as Specified in Its Charter)
Georgia 58-2237359
(State of Incorporation (I.R.S. Employer
or Organization) Identification Number)
3150 Holcomb Bridge Road 30071
Suite 200 (Zip Code)
Norcross, Georgia
(Address of Principal Executive Offices)
If this form relates to the If this form relates to the
registration of a class of registration of a class of
securities pursuant to securities pursuant to
Section 12(b) of the Exchange Section 12(g) of the Exchange
Act and is effective pursuant Act and is effective pursuant
to General Instruction A.(c), to General Instruction A.(d),
please check the following box. [ ] please check the following box. [X]
Securities to be registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on
Be so Registered Which Each Class is to be Registered
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None N/A
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, no par value per share
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(Title of Class)
Items 1 and 2 of the Company's Registration Statement on Form 8-A dated
March 25, 1999 are hereby amended and restated as follows:
Item 1. Description of Registrant's Securities to be Registered.
The following description of our capital stock is only a summary and is
subject to the provisions of our articles of incorporation and bylaws and the
provisions of applicable law. You should read carefully the articles and
bylaws, which are included as exhibits to this Amendment No. 1 to the
Registration Statement on Form 8-A.
Authorized and Outstanding Capital Stock
Our authorized capital stock consists of 50,000,000 shares of common stock,
no par value per share, and 1,000,000 shares of preferred stock, no par value
per share. As of September 30, 1999, there were 10,115,972 shares of common
stock outstanding and no shares of preferred stock outstanding.
Common Stock
The holders of common stock are entitled to receive dividends that are
legally declared by the board of directors. Each shareholder is entitled to one
vote per share on all matters to be voted upon. Holders of common stock are not
entitled to cumulate votes for the election of directors and do not have
preemptive, redemption or conversion rights. In the event of a liquidation,
dissolution or winding up, holders of common stock will be entitled to share
ratably in our net assets available for distribution to common shareholders. All
outstanding shares are fully paid and non-assessable. The rights, preferences
and privileges of holders of common stock are subject to the rights, preferences
and privileges of holders of any classes or series of preferred stock that we
may issue in the future.
Preferred Stock
Our board of directors can issue, without further action or vote by the
holders of the common stock, shares of preferred stock in one or more series and
fix any preferences, conversion and other rights, voting powers, restrictions,
limitations, qualifications and terms and conditions of redemption as shall be
set forth in resolutions adopted by the board of directors. Articles of
amendment must be filed with the Georgia Secretary of State prior to the
issuance of any shares of preferred stock of the applicable series. Any
preferred stock issued may rank senior to the common stock with respect to the
payment of dividends or amounts upon liquidation, dissolution or winding-up.
In addition, this preferred stock may have class or series voting rights.
Issuances of preferred stock, while providing us with flexibility in connection
with general corporate purposes, may, among other things, have an adverse effect
on the rights of holders of common stock. In addition, the issuance of
preferred stock could make it more difficult for a third party to acquire a
majority of our outstanding voting stock or cause a decrease in the market
price of the common stock. We have no present plan to issue any additional
shares of preferred stock.
Certain Provisions of the Articles, Bylaws and Georgia Law
Some provisions of our articles of incorporation and bylaws and Georgia
law, summarized in the following paragraphs, may be considered to have anti-
takeover effects. They may hinder, delay, deter or prevent a tender offer,
proxy contest or other attempted takeover that a shareholder may deem
to be in the shareholder's best interest or that might result in payment of a
premium over the market price for shares held by the shareholder.
Number and term of directors.
Our articles of incorporation provide that we shall have not less than 4
nor more than 12 directors. The board of directors is divided into three
classes of directors serving staggered three-year terms. Approximately one-
third of the board of directors are elected at each annual meeting of
shareholders. The classification of directors, together with other provisions
in the articles and bylaws that limit the removal of directors and permit the
remaining directors to fill any vacancies on the board of directors, make it
more difficult for shareholders to change the composition of the board of
directors. As a result, at least two annual meetings of shareholders may be
required for the shareholders to change a majority of the directors, whether or
not such change in the board of directors would be beneficial to us and our
shareholders and whether or not a majority of our shareholders believes that
such a change would be desirable. We believe, however, that the longer time
required to elect a majority of a classified board of directors will help to
ensure the continuity and stability of our management and policies. Currently,
the terms of Class I directors expire in 2002, the terms of Class II directors
expire in 2000 and the terms of Class III directors expire in 2001.
Removal of directors and filling vacancies.
Our bylaws provide that a director may be removed only with cause by the
vote of the holders of 66 2/3% of the shares entitled to vote for the election
of directors at a meeting of shareholders called to remove that director.
Unless the board of directors otherwise determines, any vacancies, including
vacancies resulting from an increase in the number of directors, will be filled
by the affirmative vote of a majority of the remaining directors, even if less
than a quorum.
Special shareholder meetings.
Our bylaws provide that our shareholders may call special meetings of the
shareholders only if those shareholders hold outstanding shares representing a
majority of all votes entitled to be cast on any issue proposed to be considered
at the special meeting.
Advance notice provisions for shareholder nominations and
shareholder proposals.
Our bylaws provide that at an annual meeting of shareholders, nominations
of persons for election to the board of directors and the proposal of business
to be considered by shareholders may be made only by or at the direction of the
board of directors, the Chairman of the board of directors or the President, or
by a shareholder who has complied with the advance notice procedures set forth
in the bylaws.
One purpose of requiring shareholders to give us advance notice of
nominations and other business is to give the board of directors a meaningful
opportunity to consider the qualifications of the proposed nominees or the
advisability of the other proposed business. If the board of directors
considers it necessary or advisable, these provisions provide our board the
opportunity to inform shareholders and make recommendations about the
qualifications or business, and to provide a more orderly procedure for
conducting meetings of shareholders. The bylaws do not give the board of
directors any power to disapprove timely shareholder nominations for the
election of directors or proposals for action. However, the provisions may
preclude a contest for the election of directors or the consideration of
shareholder proposals if the proper procedures are not followed. These
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provisions may also discourage or deter a third party from conducting a
solicitation of proxies to elect its own slate of directors or to approve its
own proposal.
Board and shareholder action required for certain transactions.
Our articles of incorporation require the affirmative vote of at least
66 2/3% of the directors for the following corporate actions to be submitted
to a vote of the shareholders:
. a sale of all or substantially all of our assets;
. our liquidation or dissolution;
. our merger, consolidation or reorganization, unless our shareholders
immediately prior to the transaction own at least a majority of our
combined voting power resulting from the merger, consolidation or
reorganization; or
. any increase in the number of directors above 12 directors.
In addition, the affirmative vote of the holders of 66 2/3% of our common stock
is required for shareholder approval of any these actions.
Issuance of preferred stock.
Our board of directors has the power to issue 1,000,000 shares of preferred
stock, in one or more classes or series and with rights and preferences as
determined by the board of directors, all without shareholder approval. Because
the board of directors has the power to establish the preferences and rights of
each class or series of preferred stock, it may allow the holders of any series
of preferred stock preferences, powers and rights, voting or otherwise, senior
to the rights of holders of common stock. The board of directors has no present
plans to issue any additional shares of preferred stock.
Georgia anti-takeover statutes.
Georgia law generally restricts a company from entering into certain
business combinations with an interested shareholder, which is defined as any
person or entity that is the beneficial owner of at least 10% of the company's
voting stock, or its affiliates for a period of five years after the date on
which such shareholder became an interested shareholder, unless:
. the transaction is approved by the board of directors of the company
prior to the date the person became an interested shareholder;
. the interested shareholder acquires 90% of the company's voting
stock in the same transaction in which it exceeds 10%; or
. subsequent to becoming an interested shareholder, the shareholder
acquires 90% of the company's voting stock and the business
combination is approved by the holders of a majority of the voting
stock entitled to vote on the matter.
Georgia law provides that these restrictions will not apply unless the
bylaws of the corporation specifically provide that these provisions of Georgia
law are applicable to the
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corporation. We have not elected to be covered by such statute, but we could do
so by action of the board of directors at any time.
Director Indemnification and Limitation of Liability
Our articles of incorporation eliminate, with some exceptions, the personal
liability of a director to our company or our shareholders for monetary damage
for breaches of the director's duty of care or other duties as a director. This
elimination of liability does not apply to:
. any appropriation, in violation of the director's duties, of any of our
business opportunities;
. acts or omissions that involve intentional misconduct or a knowing
violation of law;
. unlawful corporate distributions; or
. any transactions from which the director derived an improper personal
benefit.
Our articles also provide that if Georgia law is amended to authorize
corporate action further eliminating or limiting the personal liability of
directors, then the liability of our directors will be eliminated or limited to
the fullest extent permitted by the amended law, without further action by the
shareholders. These provisions of the articles will limit the remedies
available to a shareholder in the event of breaches of any director's duties to
a shareholder or us.
Our bylaws require us 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 our right, because he or
she is or was one of our directors. The bylaws require indemnification against
expenses, including attorney's fees and disbursements, court costs and expert
witness fees, judgments, fines, penalties, and amounts paid in settlement
incurred by him or her from 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.
We have entered into separate indemnification agreements with each of our
directors and executive officers, in which we agreed, among other things, to
provide for indemnification and advancement of expenses with similar terms and
conditions to those in the bylaws. These agreements also require us to purchase
and maintain liability insurance for the benefit of our directors and executive
officers. The shareholders cannot change these agreements. There is no pending
litigation or proceeding involving any of our directors, officers, employees or
other agents where indemnification is being sought. We are not aware of any
pending or threatened litigation that may result in claims for indemnification
by any director, officer, employee or other agent.
Our bylaws also address potential conflicts of interest between us and
Netzee, Inc., a company in which we own approximately 49%, and provide for the
allocation of transactions that otherwise could constitute corporate
opportunities of both companies. These provisions clarify that a director or
officer has fulfilled his fiduciary duty and any other duty, is deemed to have
acted in what he reasonably believes to be in our best interests, and has not
derived an improper benefit, if the director or officer acts consistently with
the following policy:
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. if the person is one of our officers or directors who is also a
director but not an officer of Netzee, the opportunity belongs to us
unless it is expressly offered to that person primarily in his capacity
as a director of Netzee;
. if the person is one of our directors who is also an officer of Netzee,
the opportunity belongs to Netzee unless it is expressly offered to that
person primarily in his capacity as an InterCept director; and
. if the person is an officer of both companies or a director of both
companies, the opportunity belongs to us unless it is expressly offered
to that person primarily in his capacity as an officer or director of
Netzee.
A corporate opportunity offered to a person under circumstances that
make it unclear whether it was offered primarily in that person's capacity as an
officer or director of us or Netzee may be presented to the company the director
or officer deems appropriate under the circumstances in his sole discretion
exercised in good faith.
Conduct which does not follow these guidelines does not void the
transaction or create a breach of duty, but is governed by the bylaws generally,
our articles, the Georgia Code and other applicable law.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is SunTrust Bank,
Atlanta.
Item 2. Exhibits.
The following exhibits are filed as a part of this Registration Statement:
Exhibit No. Description
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1 Amended and Restated Articles of Incorporation of The InterCept
Group, Inc., as deemed filed with the Secretary of State of
Georgia on April 29, 1998.
2 Bylaws (Amended and Restated) of The InterCept Group, Inc.
3 Amendment to Bylaws (Amended and Restated) of the InterCept
Group, Inc., adopted October 1, 1999.
4 Specimen Common Stock Certificate.*
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* Incorporated by reference to Exhibit 4.2 to the Company's Registration
Statement on Form S-1 (No. 333-47197) as declared effective by the
Securities and Exchange Commission on June 9, 1998.
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Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the Registrant has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized.
THE INTERCEPT GROUP, INC.
/s/ John W. Collins
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John W. Collins
Chief Executive Officer
Date: October 1, 1999
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